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Abstract
The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court’s attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed Identity. The author’s investigations into newspaper archives and the original case documents make the case for a different account, and propose that this important rule of evidence may have grown out of a historical error, committed by a Court too eager to narrate an attractive story.
Notes
* Professor of Law, Wolf-Nichol Fellow, and Senior Scholar of the Women Studies Program, University of Colorado. I wish to thank Jane Thompson and Manuel Santos of the University of Colorado Law School and Barbara Larsen and Marilyn Finke of the National Archives and Records Administration for their assistance in locating documents related to the Hillmon cases. My research was supported by the Faculty Development Fund of the University of Colorado Law School and aided by the excellent work of Katie Tepley Jackson, Hannah Wanebo, Molly Ferrer, Melissa Kerin, and especially Sarah Hamilton and Andrea Viedt. I thank my law school colleagues from the Colorado Faculty Work-in-Progress Workshop and my friends Susan Appleton, Pierre Schlag, and Hiroshi Motomura for their insightful and useful suggestions.
1. See, e.g., Robert L. Rabin and Stephen D. Sugarman, eds., Torts Stories (New York: Foundation Press, 2003)
; Michael C. Dorf, ed., Constitutional Law Stories (New York: Foundation Press, 2004) . A more venerable example is John A. Garraty, ed., Quarrels That Have Shaped the Constitution (New York: Harper & Row, 1987) .2. The lady’s first name is variously reported, sometimes as Sarah or Sadie, and her last name is sometimes rendered Hillman, but almost all of the original court documents say “Sallie E. Hillmon.”
3. See discussion infra notes 198–203 and accompanying text.
4. The three suits were Hillmon v. Mutual Life Insurance Co. of New York, Hillmon v. The New York Life Insurance Co., and Hillmon v. Connecticut Mutual Life Insurance Co., Nos. 3147, 3148, and 3149 in the Circuit Court of the United States in and for the District of Kansas, First Division. Many of the original documents pertaining to this litigation, including Mrs. Hillmon’s hand-written complaints, are archived at the National Archives and Records Administration, Central Plains Region, in Kansas City, Missouri. The three cases were eventually consolidated for trial, and for later argument on appeal to the United States Supreme Court, which decided the appeals in Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892).
5. The most popular, and most relied-upon, account is Brooks W. Maccracken, “The Case of the Anonymous Corpse,” XIX American Heritage 50 (June 1968)
(hereinafter McCracken). As will be seen, however, Maccracken overlooked quite a bit.6. For example, many purport to consider the res gestae exception to the hearsay rule, a doctrine notorious for its vacuity. See cases collected in Morgan, “The Law of Evidence,” 1941–45, 59 Harvard Law Review 481 (1946)
.7. A McGuffin, in a film or narrative, is a “thing … which appears to the characters and the audience to be of great significance but is actually only an excuse for the plot,” or “a thing … which misleads the characters and the audience.” Lesley Brown, ed., The New Shorter Oxford English Dictionary, 4th edition, (Oxford: Clarendon Press, 1993)
. Some credit Alfred Hitchcock with the invention of the term, and the use of the concept in many of his films.8. The case was also retried three times after the 1892 decision, resulting in two more hung juries, one more verdict for Mrs. Hillmon, and one more reversal of that victory by the Court, in 1903.
9. See “What She Says,” Topeka Capital, Mar. 6, 1888, at 2 (John Eldridge, Sallie Hillmon); “A Verdict at Last,”Topeka Capital, Mar. 22, 1888, at 4 (Judge’s summing up refers to several other witnesses).
10. Brown’s original account, given at an inquest, is reported in the “The Hillman Horror,” Lawrence Standard, Apr. 10, 1879, at 1–2. For portions of Brown’s pretrial deposition, which was taken over a period of weeks in December of 1881 and January and February of 1882, see Transcript of Record, Supreme Court of the United States, The Mutual Life Insurance Co. of New York, The New York Life Insurance Company, and the Connecticut Mutual Life Insurance Company of Hartford, Con-necticut (Consolidated), Plaintiffs in Error, vs. Sallie E. Hillmon, at 162, filed Oct. 8, 1888 [hereinafter 1888 Transcript]. A transcript of the entire deposition may be found in the record of the second appeal. Transcript of Record, Supreme Court of the United States, Conn. Mutual Life Insurance Co. v. S.H. Hillmon, No. 94 (1903), filed Oct. 1899, at 342 [hereinafter 1899 Transcript].
11. “The Hillman Case,” Topeka Daily Commonwealth, Mar. 7, 1888, at 8; “The Hillman Case,” Topeka Daily Commonwealth, Mar. 8, 1888, at 8; “The Hillman Trial,” Topeka Daily Commonwealth, Mar. 9, 1888, at 8; “Contests in the Courts,” Topeka Daily Commonwealth, Mar. 13, 1888, at 8.
12. Brown appeared as a witness only in the first trial, and thereafter became unavailable, so in the 1888 proceeding his statements in support of the plaintiff took the form of a transcript of his pretrial deposition, which he had given after returning to his original story about the accidental death of Hillmon. Those offered by the defendant companies, containing the “Joe” version of his account, appeared in the written affidavit Brown had signed at the urging of the companies’ agents. See Aff., John H. Brown, 1888 transcript, supra note 10 at 163 [hereinafter Brown Affidavit].
13. “The Hillman Trial,” Topeka Daily Commonwealth, Mar. 14, 1888, at 3. These Identifications were made from photographs taken of the corpse about a month after its demise.—probably it was somewhat the worse for wear, having been exhumed, autopsied, displayed to the public, buried, and exhumed again during those weeks.
14. “A Verdict at Last,” Topeka Capital, Mar. 22, 1888, at 4 (judge’s summing-up).
15. See 1888 Transcript, supra note 10 at 189 (Rieffenach deposition), 190–91 (Kasten deposition).
16. “More Mystery,” Leavenworth Times, June 28, 1882, at 1 (she is Identified as Elvira D. Caston)
17. See, e.g., “The Hillman Case,” Leavenworth Times, June 19, 1885, at 1 (second trial), in which it is reported that “Mrs. Elizabeth Reivnoeck,” sister of the missing man, “repeated this letter almost verbatim.” The Supreme Court’s 1992 opinion reproduces Mrs. Rieffenach’s recitation of the letter. Mut. Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 288 (1892).
18. See 1888 Transcript, supra note 10 at 190.
19. Id., at 190 (Kasten letter), 189–90 (Rieffenach testimony).
20. Mut. Life Ins. Co. of New York, 145 U.S, at 295–96, quoting Ins. Co. v. Mosley, 8 Wall. 397, 404–405 (1869).
21. There is a hint of this notion in the Court’s observation about intentions “important only as qualifying an act.” Words of gift, for example, must be accompanied by delivery to effectuate the gift.
22. See Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 8.16, 3rd edition (St. Paul: Thomson/ West, 2004)
.23. Mut. Life Ins. Co. of New York, 145 U.S. at 296, quoting Ins. Co. v. Mosley, 8 Wall. 397, 404–405 (1869).
24. See Fed. R. Evid. 804(b)(2) advisory committee’s note.
25. See Fed. R. Evid. 804(b)(3) advisory committee’s note.
26. Bartlett’s Familiar Quotations describes this admonition as “an ancient proverb, sometimes attributed to Homer.” John Bartlett, Bartlett’s Familiar Quotations 235 n.1, 16th edition (Boston: Little, Brown, 1992).
27. See infra note 32.
28. Since the three cases had been consolidated for trial, Judge Shiras had allocated the statutory three challenges to the defendants jointly, and had denied them any further strikes after each had excused one juror. The statute authorized this method of allocating peremptory challenges in cases “where there are several defendants,” but the Court held that it was improper to employ it when separate cases against different defendants had been consolidated. Mut. Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 294 (1892).
29. See Petition in Error, 1888 Transcript, supra note 10 at 90–101.
30. Mut. Life Ins. Co. of New York, 145 U.S. at 294.
31. Thayer’s notes are quoted in John MacArthur Maguire, “The Hillmon Case—Thirty Three Years After,” 38 Harvard Law Review 709 (1925)
. Professor Maguire does not explain how he happened to have access to Thayer’s teaching notes.32. It is obscure what these general principles may have been, but a cryptic comment in Thayer’s notes here suggests that in conference one member, possibly Justice Henry B. Brown, remarked that the case seemed to be one of “graveyard insurance.” Id. at 711, n. 11. The meaning of this dismissive characterization is murky, but at about the time of the Hillmon decision it seems to have found popular use to describe various insurance frauds. Investigators of the time employed the term to charac-terize a common scheme in which an individual or syndicate purchased insurance on the life of an ill or doddering soul, then encouraged the insured to indulge his unhealthy habits or take risks with his life; sometimes the scheme went so far as to encompass murder. See J.B. Lewis and C.C. Bombaugh, Stratagems and Conspiracies to Defraud Life Insurance Companies: An Authentic Record of Remarkable Cases 53 (New York, G.W. Carleton, 1896)
(describing the practice as a “graveyard epidemic”) [hereinafter Remarkable Stratagems]. For more about this unusual book, see infra notes 198–199 and accompanying text.33. See Maguire, supra note 31 at 711–712.
34. Jan M. van Dunné, “Normative and Narrative Coherence in Legal Decision Making” in Law and Legal Interpretation, Fernando Atria and D. Neil MacCormick, eds. (Aldershot, Hants, England: Ashgate/ Dartmouth, 2003)
, p. 409.35. See, e.g., Id.; Robin West, “Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory”, 60 New.U. L. Rev. 145, 159 (1985); Richard Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia University Press 1992)
; Jonathan Yovell, “Invisible Precedents: On the Many Lives of Legal Stories Through Law and Popular Culture,” 50 Emory Law Journal 1265 (2001) .36. See West, supra note 35 at 159.
37. See Brendan F. Brown, The Natural Law Reader (New York: Oceana, 1960), p. 113
.38. Northrop Frye, Anatomy of Criticism (Princeton: Princeton University Press, 1957), p.195
, quoted in West, supra note 35 at 48.39. Id., at 187–188 (1957), quoted in West, supra note 40 at 48. These tropes recur continually in the narratives urged by the defendants on the serial juries that heard the Hillmon case—the youth and purity of their surrogate Walters as contrasted with the age, experience, and corruption of Hillmon. This was so especially concerning teeth and scars: Hillmon’s teeth were often described (by defendants’ witnesses) as rotten, his body as scarred.
40. See West, supra note 35 at 159.
41. British literary historian David Watson Rannie, in a slender 1895 book, proposed that letters as a literary form were distinguished from essays and autobiography by their candor and artlessness, in part because they were not intended for publication. David Watson Rannie, Letter Writing as a form of Literature in Ancient and Modern Times (Oxford: B.H. Blackwell 1895), p. A2
, (“the world will never pry into the dual solitude in which [the letter] has its being”).42. See Yovell, supra note 35.
43. See Maguire, supra note 31; Eustace Seligman, “An Exception to the Hearsay Rule,” 26 Harvard Law Review 146 (1913)
; James W. Payne, Jr., “The Hillmon Case—An Old Problem Revisited,” 41 Virginia Law Review 1011 (1955) .44. Fed. R. Evid. 803(3) advisory committee’s note (emphasis added).
45. For example, in the advisory committee’s note after Fed. R. Evid. 804(b)(3), the Committee rejected the rule of Donnelly v. United States, 228 U.S. 243 (1913) (statement against penal interest is not an exception to the hearsay rule, even if declarant is unavailable).
46. See Maguire, supra note 31.
47. Annual Report of the Kansas State Superintendent of Insurance, reproduced in John H. Wigmore, The Principles of Judicial Proof (Boston: Little, Brown, 1913), pp. 856–896
[hereinafter Annual Report].48. See Maccracken, supra note 5 at 50.
49. Id., at 75.
50. Maccracken is not alone in harboring little skepticism of this report or its source. A British scholar who investigated the case opines that “no impartial reader can fail to be persuaded by the account of the facts retailed by Wigmore that the body presented was not that of Hillmon, but that of one Walters.” Colin Tapper, “Hillmon Rediscovered and Lord St. Leonards Resurrected,” 106 L.Q.Rev. 441, 459–60 (1990)
. Professor Tapper concedes that Wigmore’s account was “taken from a report by a Kansas State Insurance Commissioner who … admittedly [represented] the defendants,” but credits the author as “meticulous in separating fact from opinion.” Id., at 72. Wigmore’s account is in fact nothing but a verbatim replication of the “Superintendent’s Report.”51. Wigmore gives the date of the report as 1887, but this cannot be correct, as the report says on its first page, “The cases are now (April 1888) in the Circuit Court pending the argument of a motion for new trial. If this motion is overruled, an appeal will probably be taken to the United States Supreme Court.” (parenthetical material in original). See Annual Report, supra note 47, at 856–896.
52. Id., at 856 (Gleed lists himself as attorney for defendants on both second and third trials); see also Id., at 884–87 (Gleed quotes at length from his own closing argument).
53. See Eighteenth Annual Report of the Superintendent of Insurance of the State of Kansas for the Year Ending December 31, 1887 (Topeka, Kansas Publishing House: Clifford C. Baker, State Printer, 1888), pp. 49–74. The report, otherwise a rather dry compendium of statistics and encomia, contains only one other similar narrative, an account of a dispute over whether the daughter of Nannie C. Poinsett ought to be barred from receiving the proceeds of insurance on her mother’s life because she had poisoned the lady with arsenic. The attorneys for the insurance companies in that dispute, which was tried only once and resulted in a verdict for the daughter, included Barker, Green, and Gleed, but the account of it was not written by any of the attorneys. The narrator, one Charles M. Foster (connection to the matter undisclosed), relates that one witness changed his testimony, and then changed it back again, claiming at one point that he had been pressured by attorneys for the Mutual Life Insurance Company of New York—one of whom was J.W. Green, but another of whom was C.W. Hutchings, who was still at that time and for many years thereafter attorney for Sallie Hillmon in her suit against the same company.
54. John H. Wigmore, The Principles of Judicial Proof (Boston: Little, Brown, 1913), p. 856
.55. See Annual Report, supra note 47 at 857.
56. See “Photograph Palaver,” Leavenworth Times, June 27, 1882, at 1 (first trial) (George Baldridge testifies that he took a stenographic record of the inquest at the request of Maj. Wiseman, but “never furnished either the coroner or county clerk a copy of the testimony.”)
57. See “The Hillman Horror,” supra note 10 at 1 (testimony of Levi Baldwin).
58. Id., at 2; see also “The Hillmon Cases,” Leavenworth Times, June 16, 1882, at 1.
59. “A Long Story,” Leavenworth Times, June 17, 1882, at 1.
60. Major Wiseman continued to be a useful agent for the companies throughout the next two decades of the Hillmon litigation. He described his commission as “looking up evidence to prove that the body was not Hillmon.” “How Tall was He?” Topeka Daily Capital, Mar. 18, 1896, at 2. He had to confess with some rue, at the fifth trial, that he had gone unpaid and had been required to sue his employers for the $2500 they owed him for his services. Id. But he may have had his revenge for this mistreatment. See infra note 131.
61. Medicine Lodge Cresset, Apr. 3, 1879, at 2. This story remarks, of Colonel Walker, “The Col.’s fame in early Kansas history is too well known to need any comment.”
62. Id. At later proceedings, Major Wiseman and Mr. Tillingast would testify that they knew and said, immediately on seeing the body, that it was not Hillmon’s. See “How Tall was He?,” supra note 60 at 2 (testimony of Major Wiseman). But this was not the Cresset reporter’s impression.
63. She later said that the insurance company’s men discouraged her from viewing the corpse; they denied that they had, but another witness who had been with her on the occasion confirmed her account. See “Coming to a Close,” Leavenworth Times, June 30, 1882, at 4 (testimony of Mrs. Judson).
64. See “The Hillman Horror,” supra note 10 at 1.
65. “The Hillman Trial,” Topeka Daily Capital, Feb. 16, 1895, at 6.
66. Id., at 6.
67. “Wiseman Testifies,” Topeka Daily Capital, Jan. 31, 1895, at 4.
68. Id., at 2.
69. Id.
70. Id.
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id.
77. “Hillman Tragedy,” Medicine Lodge Cresset, Apr. 17, 1879, at 2.
78. Id.
79. See “The Hillman Horror,” supra note 10 at 1.
80. Id.
81. Id.
82. Id.
83. Id.
84. Another Lawrence newspaper had reported that, although not opposed to the inquiry “the people—very many of them—do object to having the EXPENSE foisted off upon DOUGLAS COUNTY. The proceedings here are instituted, we understand, by the Insurance companies who have $2500 at stake, and it is claimed to be simply a matter of justice that they should foot the bills, instead of our overburthened taxpayers.” “The Hillman Inquest,” Lawrence Daily Tribune, April 7, 1879, at 4. The taxpayers needn’t have worried; as it turned out the companies were willing to pay everyone, including the witnesses and jurors. See “Wiseman Testifies,” supra note 29 at 3. And this gesture seemed to quell the objections of the Tribune’s editors, as they suggested a few days later that citizen curiosity about the verdict of the coroner’s jury was “unseemly” as “[i]t is a private matter and hence we have no right to be too inquisitive; we do not pay the bills; we do not encourage or justify the official action; we have no right to ask any questions.” Id., at 4.
85. See “The Hillman Horror,” supra note 10 at 2. The colorful juxtaposition of calcium light (a sort of stage light or spotlight) and truth appears also in the otherwise very different coverage of the Medicine Lodge newspaper, which proposes that the “light of calcium truth be permitted to shine through the dark and infamous swindle which the Insurance companies propose to so coolly carry out.” See “Hill-man Tragedy,” supra note 77 at 2.
86. See “The Hillman Horror,” supra note 10 at 2.
87. Id.
88. Id. Has any corpse outside of horror fiction ever suffered more difficulty remaining in its grave?
89. See “Hillman Tragedy,” supra note 77 at 2.
90. “Murder Will Out!”, Lawrence Standard, Apr. 17, 1879, at 4.
91. Id.
92. Id.
93. Id. (Testimony of G.A. Stevens, Mrs. Turner Sampson, and Kitty C. Howe).
94. See supra note 88 and accompanying text.
95. See “Murder Will Out!” supra note 90 at 4.
96. Id.
97. Id.
98. “The Hillman Tragedy,” Lawrence Standard, June 26, 1879, at 4.
99. See “Murder Will Out’” supra note 90 at 4. On April 11, the other Lawrence newspaper reported a “rumor” that “the body of the supposed Hillmon may prove to that of a man named Willey, who had been with Hillmon and Brown a great deal. His home is in Illinois and he was last heard of some sixty miles southwest of Wichita, about six weeks ago.” “A Rumor,” Lawrence Daily Tribune, Apr. 11, 1879, at 4. Willey’s name does not seem to come up again, however.
100. This phrase is displayed in the newspaper column in the manner shown.
101. See “The Hillman Tragedy,” supra note 98 at 4.
102. Much later the coroner testified that he had issued a warrant for Brown’s arrest after the jury returned its verdict, and that Mr. Green had assisted in its preparation. See “The Hillmon Trial,” Topeka Daily Capital, Feb. 16, 1895, at 6. But none of the contemporaneous reporting mentions this fact, and Green himself, called as a witness twenty years later at the sixth trial, denied that he had ever issued a warrant for Brown. . “Advised His Brother to Swear to a Lie,” Leavenworth Times, Oct. 24, 1899, at 4.
103. Hillmon’s daybook or journal, a surprisingly literate document that says nothing about any plans to kill a man (of course it wouldn’t, no matter whom you believe) was found on the body at Crooked Creek. See Annual Report, supra note 47 at 857–59.
104. See Brown affidavit, supra note 12 at 165.
105. Brown also wrote (not just signed, as with the affidavit) another highly helpful document: a letter to Sallie Hillmon. He later would say that the letter was dictated to him by Buchan. “How It Happened,” Leavenworth Times, June 20, 1882, at 1. The letter said: “I would like to know where John is, and how that business is, and what I should do, if anything. Let me know through my father. Yours truly, John H. Brown.” But Mrs. Hillmon testified that she did not receive this letter, Leavenworth Times, June 11, 1885, at 4, and Buchan admitted that he did not send it on to her, See “How it Happened,” supra note 105 at 1; instead he gave it to the insurance companies’ representatives. Apparently it was never intended as an actual communication; it was a piece of evidence manufactured by Buchan, at a time he purported to be representing Brown, in favor of the insurance companies’ theory that Brown and Sallie Hillmon were united in a continuing conspiracy.
106. This was Brown’s testimony at the first trial (the only one at which he appeared in person). “Brown’s Letter,” Leavenworth Times, June 18, 1882, at 5. In addition, it was Mrs. Hillmon’s consistent account. See “How it Happened,” surpa note 105 at 1.
107. See Maccracken, supra note 5 at 53.
108. Id., at 53, 73.
109. See Annual Report, supra note 47 at 873.
110. Id., at 870; Maccracken, supra note 5 at 53. Certainly this was Buchan’s claim, but the elder Brown was never called to testify, by either side. The brothers Brown maintained that Buchan had approached John Brown without invitation or authority.
111. Id.
112. “Proceedings Before Judges Foster and Brewer—The Hillman Case,” Leavenworth Times, June 14, 1885, at 4 (second trial).
113. “A Long Story,” Leavenworth Times, June 17, 1882, at 1. Buchan acknowledged that the deputy accompanied him on the drive over to Reuben Brown’s place, but testified that his companion’s law enforcement credentials were mere coincidence; the sheriff ’s office just happened to have the best team of horses around, and “little use for it.” “That Tooth,” Leavenworth Times, June 22, 1882, at 1.
114. See “A Long Story,” supra note 113 at 1.
115. See “How it Happened,” supra note 105.
116. “The Hillman Case Still Going On,” Leavenworth Times, June 12, 1885, at 4 (second trial). In the 1988 trial Buchan agreed that “Brown did not read [the affidavit] over.” “Hillman the Murderer,” Lawrence Tribune, Mar. 16, 1888, at 2.
117. See “A Long Story,” supra note 113 at 1 (John Brown); “How It Happened,” Leavenworth Times, June 20, 1879, at 1 (Sallie Hillmon).
118. See “That Tooth,” supra note 113 at 1.
119. See “A Long Story,” supra note 113 at 1. (first trial). He seemed willing by his account, however, to have it shown to Sallie Hillmon as an inducement to abandon her claims.
120. See “That Tooth,” supra note 113 at 1.
121. Id.
122. “Vaccine Virus,” Leavenworth Times, June 23, 1882, at 1 (testimony of J.R. Buchan).
123. See 1899 Transcript, supra note 10 at 166–67. See also “The Hillmon Case,” Topeka Daily Capital, Mar 2, 1888, at 4.
124. Id.
125. See “That Tooth,” supra note 113 at 1.
126. “Brown’s Confession,” Topeka Daily Capital, Mar. 10, 1888, at 4 (second trial). See Supra n.105.
127. Id.
128. Id. Buchan testified that Brown’s insistence on immunity not only for himself but for his partner as well complicated the negotiations, and of course if true this would suggest that Brown knew Hillmon was still alive; but Brown’s testimony was different.
129. Brown’s deposition describes Buchan’s importunings thus: “[B]y me consenting to do this would insure me that I would never have any trouble about it from that time on, and if didn’t the insurance men would hunt me down and penitentiary me for murder, and that they had plenty of money, and never calculated to paying the woman her money, and it would enable him to get big pay for this paper, and that if I needed any money or anything he would give me all I wanted.” See Brown Deposition, in 1866 Transcript, supra note 14 at 341(hereinafter Brown deposition).
130. Brown’s deposition testimony claimed that “After I told him [Buchan] of this man that camped with us at Cow Skin, then he said he could make it appear that this man was killed instead of Hillmon, and stated in his paper [the affidavit] to this effect.” Id., at 401.
131. “Brother and Sister Swear It Was Walters,” Leavenworth Times, Nov. 11, 1899, at 6. Apparently, by the end of the last trial the defendants had more or less given up the claim that Frederick Adolph Walters was the “Joe Burgess” of Browns’ affidavit. One of their own attorneys elicited from Major Wiseman that he had “found” both Francis (Frank) Nichols and Joe Burgess in 1879. Id. But perhaps they knew that if they did not bring out this fact, plaintiff ’s counsel would have. Wiseman’s belated willingness to help Sallie Hillmon may have been connected to his testimony in the fifth trial that the companies had not paid him for his services and he had been required to sue them. See “How Tall Was He,” supra note 60 at 2.
132. See infra note 166–68 and accompanying text.
133. “Was It Waltersfi”, Leavenworth Times, June 29, 1882, at 4.
134. Id.
135. “Foster’s Findings,” Leavenworth Times, July 2, 1882, at 5.
136. “The Hillmon Cases,” Leavenworth Times, July 4, 1882, at 2.
137. “Proceedings Before Judges Brewer and Foster—the Hillman Case,” Leavenworth Times, June 18, 1885, at 4.
138. “The Hillman Case,” Leavenworth Times, June 19, 1885, at 1. The press account spells her surname “Reivnoeck.”
139. “The Hillman Trial,” Leavenworth Times, June 25, 1885, at 4.
140. Id. (capitalization in original).
141. Id.
142. See “Was It Waltersfi,” supra note 133 at 4.
143. Id., at 4; 1888 Transcript, supra note 10 at 190–91. Rieffenach dId not appear in person at this trial. Her deposition was taken in 1880. See 1899 Transcript, supra note 10 at 1778.
144. See 1888 Transcript, supra note 10 at 189–90.
145. “A Verdict at Last,” Topeka Daily Capital, Mar. 22, 1888, at 4.
146. See supra notes 20–23 and accompanying text.
147. “The Hillmon Case,” Topeka Daily Capital, Feb.1, 1895, at 8. The blow-by-blow accounts of the inquest and accompanying events in Lawrence by a reporter who obviously favored the insurance companies made no mention of this event in 1879, although it seems that it would have been well-remarked at the time had it happened. When Alva Baldwin finally appeared as a live witness, at the sixth trial, he firmly denied having made the exclamation. “Mysterious Silence of Alva Baldwin Broken,” Leavenworth Times, Oct. 26, 1899, at 4.
148. See “The Hillmon Case,” supra note 147 at 5; “Hillmon Trial Again Resumed,” Topeka Daily Capital, Feb. 6, 1895, at 4.
149. Leavenworth Standard, Apr. 10, 1879 at 1.
150. “Say It Was Not J.W. Hillmon,” Topeka Daily Capital, Feb. 2, 1895, at 5; See “Hillmon Trial Again Resumed,” supra note 148 at 4.
151. See “The Hillman Horror,” supra note 10 at 1.
152. “Walters’ Sister,” Topeka Daily Capital, Feb. 24, 1895, at 2.
153. “Goes Right Along,” Topeka Daily Capital, Feb. 23, 1895, at 5.
154. Id.
155. “Eleven to One,” Topeka Daily Capital, Mar. 21, 1895, at 6.
156. Id., at 5.
157. See 1866 Transcript, supra note 10 at 1794.
158. “Same Old Result,” Topeka Daily Capital, Apr. 4, 1896, at 1. The Capital reported that the last poll taken of the jurors was seven to five, although one juror later claimed they had been evenly divided. It also reported that the jurors had thereafter agreed to some sort of numerical system to calculate the weight of evidence on each side by assigning a value from zero to five for each witness. On this system, the Capital’s source said, the insurance companies were far ahead until one holdout juror refused to vote according to this system, and this defection caused the foreman to inform the judge that they were at an impasse. The paper also reported that the insurance companies had proposed to the Hillmon side, after this outcome, to “try the case before the five federal judges who have tried the case and abide by the decision of the majority.” Id. This proposal did not, it seems, meet with agreement.
159. See 1899 Transcript, supra note 10 at 1790–94.
160. See “Brother and Sister Swear It Was Walters,” supra note 131 at 6.
161. J.W. Green explicitly noted the plaintiff ’s failure to contest the Identity of the handwriting in his sum mation. “Simmons Testimony a Footless Fancy,” Leavenworth Times, Nov. 17, 1899, at 4.
162. This itinerary is remarkably similar to the list of cities given by Miss Alvina Kasten when she was asked in her deposition from whence she had received letters from Walters. See 1899 Transcript, supra note 10 at 1693. These letters were never produced because (Kasten said) she had destroyed all of Walters’ letters except for the crucial one. See infra note 185 and accompanying text.
163. See “Brother and Sister Swear It Was Walters,” supra note 131 and accompanying text.
164. Typewritten partial transcript of 1899 trial, page marked 668 (NARA Archive).
165. “Gives Her $33,102,” Leavenworth Times, Nov. 19, 1899, at 4. The New York Life Insurance Company had paid Sallie Hillmon Smith’s claim before the sixth trial commenced. See Lawrence Evening Standard, Oct. 15, 1899, at 4. Mutual of New York paid the judgment against it from the sixth trial. See Satisfaction in Full of Judgment, August 8, 1900 (NARA Archive). But the Connecticut Mutual Life Insurance Company again appealed. A Circuit Court of Appeals having been created since the previous appeal, the appeal was first argued and decided there, in favor of affirmance. Conn. Mut. Life Ins. Co. v. Hillmon, 107 F. 834 (1901). Certiorari review was granted by the United States Supreme Court, with the same result as a decade earlier: the Court overturned Mrs. Hillmon’s victory and remanded the matter for a new trial. On this occasion the bases for reversal were again issues pertaining to the law of evidence. The Court held that John Brown’s affidavit, introduced by Mrs. Hillmon for the limited purpose of showing why she had at one time said she would release the defendants from her claims, should have been received as the truth of the matters it recited and the jury so instructed. It also held that certain statements that witnesses claimed Levi Baldwin had made about a scheme he and John Hillmon had conceived, a scheme that Baldwin said would make him rich, were admissible against Mrs. Hillmon as co-conspirator’s statements. Conn. Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208 (1903). Before the case could be tried for a seventh time, the Connecticut Mutual Life Insurance Company settled Mrs. Hill-mon’s claim.
166. Or possibly “ranch.” See Transcript 1899, supra note 10 at 1689. Concerning originals and copies of this letter, see infra note 192.
167. See Brown Affidavit, supra note 12 at 165.
168. It may be speculated that Walters actually wrote the letter on the trail after meeting Hillmon and Brown, then handed it off to a traveler going the opposite direction, back toward Wichita, asking him to post it from there. But in such a case why would he not say so, instead of heading the letter “Wichita”? Moreover, immediately after inscribing this heading the letter writer states that he “will stay here until the fore part of next week & then will leave here” (with Hillmon). The letter was dated March 1, 1879, and postmarked March 2nd, a Sunday. If the writer had kept with his intentions (that’s the Idea of the hearsay exception, isn’t it?) he could not have left Wichita until after the letter mentioning Hillmon’s name was posted from there, and so could not have met Hillmon for the first time on the trail.
169. See “Brother and Sister Swear It Was Walters,” supra note 131.
170. See supra note 105.
171. See text accompanying supra notes 148–151.
172. See “The Hillman Horror”, supra note 10 at 2 (testimony of Dr. Miller). This testimony was offered again at each of the trials to explain why the doctor’s form had 5′9″ written over an erased earlier entry (other forms said 5′11″). See, e.g., “W.J. Buchan Tells of J.H. Brown’s Statement”, Leavenworth Times, Nov. 3, 1899, at 6. But why would Hillmon have done such a thing, even if he were planning the scheme the defendants attributed to him? Surely he knew his own height, and he could not have known, before leaving home, what height his victim would be.
It also seems nearly certain that the testimony of Seeley in the fifth trial was perjured, but it is less clear that the attorneys knew that this was the case, as the letter that proved him false was not discovered until some time shortly before the sixth and last trial. Defense counsel wisely did not call Seeley in the sixth trial.
173. J.W. Green was still arguing this proposition in his opening statement in the last trial, twenty years after he certainly had learned that it could not be true. “By Conspiracy,” Leavenworth Times, Oct. 18, 1899, at 4 (“The man who was buried at Lawrence was Walters. He was the man who accompanied Hillmon and Brown west from Wichita with the promise of a position on a sheep ranch.”).
174. “Proceedings Before Judges Foster and Brewer—The Hillman Case,” Leavenworth Times, June 14, 1885, at 4.
175. Toward the end of this trial it printed a story expressing the sentiment that “where there is such a well- grounded suspicion as there is in this case, the quicker such cases are thrown out of court the better, and the sooner the attempts to defraud insurance companies will be stopped.” “The Hillman Case,” Leav-enworth Times, June 26, 1885, at 2.
176. A curious piece of evidence offered by the defendants at the last trial, but excluded by the judge (perhaps on hearsay grounds), showed that the Walters family had erected a gravestone in the family cemetery plot inscribed “Frederick Adolph Walters, born January 25th, 1855, died March 17, 1879. Interred at Lawrence, Kansas.” See 1899 Transcript, supra note 10 at 1799.
177. See supra note 175 and accompanying text.
178. See “Brother and Sister Swear It Was Walters,” supra note 131 at 6.
179. See 1899 Transcript, supra note 10 at 1687. She balked at specifying whether they were engaged, saying it was nobody’s concern but theirs, but did agree that the two had exchanged rings around December of 1877. Id., at 1691.
180. Id., at 1696. The deposition, like this paragraph, alternates between “Walter” and “Walters” as the family name.
181. Nor did Mrs. Hillmon’s attorneys, of course, but unlike defense counsel they had few resources available to assist in any such persuasion. In any event, it does not seem to have occurred to Mrs. Hillmon’s lawyers that the Kasten letter was not authentic.
182. Id., at 1694.
183. Id. At first she said she had destroyed the letters shortly after giving the Wichita letter to Tillinghast; on further questioning she said it had been a year later than that, which would have been only shortly before giving the deposition. She appears, from the transcript, to have been fiustered by the questioning, explaining her lapses by saying she was “bothered” (worried, presumably) about her sister, who was ill.
184. “Mrs. Hillmon’s Evidence to be Finished Today,” Leavenworth Times, Oct. 25, 1899, at 4.
185. “Claims Walters Was In Leavenworth In May 1879,” Leavenworth Times, Nov, 14, 1899, at 4.
186. After the evidence had closed at the last trial, but before the jury was instructed, the Hillmon attorneys asked leave to reopen the case for the testimony of a newly-discovered witness, T.S. Cookson, who was said to be a co-employee who remembered F.A. Walters working at the Simmons cigar factory during the dates testified to by Simmons. The court denied the motion to reopen. “Ready for Arguments in the Hillmon Case,” Leavenworth Times, Nov. 15, 1899, at 4.
No aspersion was ever cast on the character of Simmons, at least not in the courtroom. The last-minute timing of his testimony may have made a search for impeachment material hopeless, but years later, reporting retrospectively on the case, the Topeka Capital characterized Simmons as “one of the oldest and most substantial cigar manufacturers in Leavenworth.” “Hillmon Case is Done For,” Topeka Daily Capital, July 5, 1903, at 5.
187. It is true that there was also evidence, in various of the Hillmon trials, of sightings of Hillmon after his claimed death at Crooked Creek. But none of these Identifications was supported by any documentary or corroborative evidence, and most if not all were highly implausible on their face.
188. See “Claims Walters Was In Leavenworth In May 1879,” supra note 185 at 4.
189. Id.
190. Id.
191. See “How it Happened,” supra note 105.
192. It would be an excellent exercise to compare the handwriting on the Kasten letter to that of other letters written by young Walters, but the original of the Kasten letter is not to be found; in its stead, in the archives of the National Archives and Records Administration, is a copy (marked “Copy”)—handwritten, for facsimile copies were unknown in those days. The original (also handwritten) deposition transcript is there; but the copied letter appears to have been substituted for the original “Exhibit C,” which would in the ordinary course have been appended to the deposition. The handwritten copy is rather obviously not written in the distinctive elegant copperplate of the notary who recorded the deposition. But at the end of the copy appears this notation: “Received June 24, 1881 a letter of which the above is a true copy,” and below this is a signature: J.W. Green, Atty. For Deft.”
193. See the examples in The New Herst-Sampson Catalog: Kenneth L. Gilman ed., A Guide to 65th Century United States Postmarks and Cancellations (North Miami: David G. Phillips Pub. Co., 1989)
(copy available from author).194. E.g., “What’s the Verdict?”, Topeka Daily Capital, Apr. 1, 1896, at 2 (summation of defendants’ attorney Isham).
195. See Brown Affidavit, supra note 12 at 460. It seems indisputable that John Hillmon paid some of the premium himself, as in the third trial one of the companies’ agents produced a promissory note signed by John Hillmon, saying it was for the second premium due to New York Life Insurance Company. “The Hillman Case,” Topeka Commonwealth, Mar. 16, 1888 at 8 (testimony of A.L. Selig). And another testified at the Lawrence inquest that at the time Hillmon took out the insurance he “paid semi-annual premiums in New York Life and Con-necticut, in cash.” “Murder Will Out!”, Lawrence Standard, Apr. 17, 1879, at 4. Of course, he may have borrowed the cash from Baldwin. During the fifth trial it was reported that “arguments were heard for and against the introduction of testimony to show that Levi Baldwin had furnished money to pay premiums on the policies on Hillmon’s life, and that he was to receive a portion of the life insurance money.” “Buchan Testifies,” Topeka Daily Capital, Mar. 21, 1896, at 5.
196. “Browns’ Confession,” Topeka Daily Capital, Mar. 10, 1888, at 4 (testimony of J.S. Crew). Another version of the Crew testimony, however, merely has it that Baldwin sought some mercy toward his indebtedness by saying he had borrowed the money in part to pay the premium on Hillmon’s life insurance policy. “Very Little Done,” Topeka Daily Capital, Feb. 22, 1895, at 3; Deposition of James S. Crew, August 1860 (NARA Archive). Another witness, a physician, testified that Baldwin had asked him in the fall of 1898 whether it wouldn’t be a “good scheme to get your life insured for all you can and have someone represent you as dead and then skip out for Africa or some other d__n place Expert Testimony,” Topeka Daily Capital, Mar. 11, 1888, at 3 (testimony of Dr. Phillips). The degree of indiscretion this evidence attributes to Baldwin is at variance with the defendants’ determined portrayal of him, on other occasions, as a crafty criminal.
197. In the fourth trial, in 1895, Baldwin denied that “he was to get $10,000 from Mrs. Hillmon“Hillmon Testimony,” Topeka Daily Capital, Jan. 20, 1895 at 5.
198. See Remarkable Stratagems, supra note 32. This compulsively readable true crime book is not an alto gether nonpartisan document, having been written by two men very much embedded in the insurance industry. Lewis Identifies himself as “Consulting Surgeon and Adjuster, Travelers Insurance Co.” and Bombaugh as “Editor, Baltimore Underwriter.”
199. Id., at 346–351. This account also records that the nominal beneficiary of the policy was a young woman with whom McNutt had been living, and whom he married shortly before embarking on the scheme “in order to legalize the policy.” Possibly, the similar brief interval between John Hillmon’s marriage to Sallie and the death at Crooked Creek contributed to the companies’ suspicions. Certainly they tried to make it seem suspicious; in several of the trials one of their agents testified that Sallie Hillmon had told him that she could not say much about her husband’s appearance because she “was not sufficiently well-acquainted with him to give a description.” See e.g., “How Tall Was He,” supra note 60 at 1 (testimony of A.L. Selig). ( Sallie Hillmon denied having ever made the statement.)
200. Id., at 126–282. In a slightly later and even more spectacular series of insurance frauds, the serial killer Herman Webster Mudgett, who called himself H.H. Holmes, murdered at least twenty-seven people, many for the purpose of collecting insurance on their lives. Much of Holmes’ colorful and gruesome career coincided with the planning and execution of the Chicago World’s Fair of 1865; the story of this jarring juxtaposition is told in Erik Larson, The Devil in the White City: Murder, Magic, and Madness at the Fair that Changed America (New York: Crown, 2003)
.201. In his summation in the last Hillmon trial, James Green even sought to appeal to the jury by reminding them of the Winner-McNutt case (although there had been nothing in evidence about it). “Simmons Testimony a Footless Fancy,” Leavenworth Times, Nov. 17, 1899, at 4.
202. See Remarkable Stratagems, supra note 37 at 173.
203. Nor, if I am right and the company lawyers composed the Dearest Alvina letter, must one look beyond the Winner-McNutt case to see what might have inspired the portion of the letter in which the writer claims that John Hillmon “promised me more wages than I could get at anything else.”
204. Terry R. Harmon and Charles Sumner Gleed, A Western Business Leader, 1856–1920 (Unpublished Ph.D. dissertation, University of Kansas, 1973)
(on file with the University of Kansas Library) at 62, 66.205. Id., at 71.
206. Id., at 70–79.
207. Id., at 79.
208. Id.
209. Id., at 189.
210. C.S. Gleed, “As Others See Us,” The Kansas Day Club: Addresses Delivered at Annual Banquets During the First Ten Years of the Club’s Existence, 1892–1900, 57–63 (1901) quoted Id., at 190–191.
211. See Harmon, supra note 204 at 450–451.
212. Id., at 451.
213. Id., at 477.
214. See, e.g., “Taking of Evidence in Hillmon Case Begins,” Leavenworth Times, Oct. 19, 1899, at 4.
215. See “Hillmon Trial Nearly Done,” Topeka Daily Capital, Mar. 10, 1895, at 11.
216. On the question of who owned what interest in the eventual proceeds, there is a great deal of confiicting evidence. In 1880, Sallie Hillmon swore that she had not parted with her interest in any of the cases. See Affidavit of Sallie Hillmon, June 1882 (NARA Archive). In 1888 William Sinclair, the individual who had provided the bond securing any costs Mrs. Hillmon might be required to pay in connection with the litigation, had prayed to be released from his obligation, averring in part that “Sallie E. Hillman has assigned and parted with all of her interest in said several suits,” naming her attorneys and H.S. Clark as the purchasers. Affidavit of Wm. T. Sinclair, January 6, 1888 (NARA Archive). (An H.S. Clark was in 1879 the Sheriff of Douglas County, where Lawrence is located. See Topeka Daily Capital, Mar. 12, 1895, at 6). See “Defendants’ Day,” Topeka Daily Capital, Feb. 19, 1895, at 4,, where reference is made to a document (excluded from evidence) conferring a certain interest in the litigation on the plaintiff ’s attorneys.
217. She seems to have been too ill to attend the final trial on the date when it was originally scheduled. See Motion for Continuance, Feb. 14, 1898 (containing affidavits from Mrs. Hillmon and her doctor saying she has been very ill with “la grippe” and cannot bear the strain of a trial at that time)(NARA Archive).
218. Newspaper accounts of the third trial, in 1888, report that “Mrs. Hillman was married some time ago and her name is now Smith,” and that her husband attended the trial with her. “The Seventh Day,” Lawrence Tribune, Mar. 12, 1888, at 4. The same story says that the jury is unaware of her remarriage because “the attorneys on each side fear to introduce” evidence of it. Id.
219. The Topeka Daily Capital reported that Sallie Hillmon Quinn was eighteen when the suit was commenced, which would have made her at most twenty-six at the time of her remarriage. See “Hillmon Case is Done For,” supra note 186 at 5.
220. Maguire’s famous article purported to re-examine the case thirty-three years after its original decision. See Maguire, supra note 51. To the best of my knowledge, no other legal scholar has looked at the original documents of the litigation since that time. I encourage others to take this step; perhaps someone will notice in this vast repository of paper something I overlooked. The documents in the NARA archive are very fragile and brittle now, and I doubt they will survive even another half-century of storage.
221. See Crawford v. Washington, 541 U.S. 36 (2004); Williamson v. United States, 512 U.S. 594 (1994); Idaho v. Wright, 497 U.S. 805 (1990).