by Clare V. McKanna, Jr.
Jacob Weinberger Award San Diego Historical Society 1989 Institute of History
“A Whole Family Butchered Near San Dieguito—The Bodies Discovered Several Days After the Murder.” San Diego Union May 19, 1874
This banner headline shocked readers throughout San Diego County. The story revealed that unknown assailants brutally beat to death the entire Overend family — John Overend, his wife, and four young children. This was not the only mass murder in California during this era, but many readers probably asked themselves, who could commit such a heinous crime? Murder, however, was fairly common in nineteenth-century San Diego County. Various individuals committed at least 220 homicides during the period 1850-1900. The famous quote “murder will out,” meaning that murders would be solved did not really apply during this era. Only ninety of the 220 homicides committed reached the indictment stage in the California criminal justice system. In other words, about forty percent of the cases were resolved in court. The legal process brought about the conviction of forty-two defendants; slightly over seventeen percent of the homicides resulted in a conviction.2
This essay will focus on the treatment of Indian murderers within the nineteenth-century criminal justice system in order to answer the question: Did they receive the same legal rights as Anglos during this process? By using social history techniques we may catch a brief glimpse of how the legal system treated ethnics. The results may not agree with our preconceived ideas, but we may be able to draw some useful conclusions about justice during the period under study.
A brief discussion of several of the homicide cases involving Indian perpetrators might help us to understand the breakdown in interpersonal relationships in early San Diego. One of the oddest homicides occurred the night of January 14, 1853 when several Indians allegedly beat John Warren to death with the jaw bone of an ox. On the morning of the 15th San Diegans discovered Warren’s half naked body lying in a ravine near Old Town. A deputy sheriff found the jaw bone of an ox “with flesh and blood sticking” to it near the corpse. Witnesses called to testify before the coroners’ inquest jury related that Warren had been seen on the streets of Old Town the previous evening. Warren had told William B. Couts that two Indians “wanted to kill him.” He tried to borrow a pistol, but Couts refused. G. Carillo, a card dealer at a saloon, noted that Warren had lost most of his money and “seemed to me to be under the influence of liquor.”3 San Diego’s first homicide recorded within the coroner’s inquests provides an excellent example of a common denominator — liquor — that accompanied many homicides committed by Indians in San Diego County. Of the thirty-six homicides committed by Indians, thirty-eight percent of the victims had been drinking and nineteen perpetrators or sixty-one percent were under the influence. Then — as today — alcohol often played an important role in homicides.
In 1874 the Overend murder case caused quite a stir in San Diego, John Overend and his family lived on a small farm in an isolated area between San Dieguito and San Bernardo. His nearest neighbor resided about two miles distance and no road serviced the Overend farm. One evening, probably May 14, 1874, two or more Indians accosted John Overend and beat him to death with a large piece of timber, did the same to his wife and then using an axe they killed four children aged four months to seven years. The inquest jury included doctor E.D. French who noted that “the blows were evidently all right handed — there was no evidence of any struggle with the old man and he must have been killed instantly with the first blow.”4 After holding an inquest, the coroner’s jury quickly buried the bloated and badly decomposed bodies. Several men passed out from the awful task that confronted them. Exactly who had killed them was not clear, but the inquest testimony suggested that several Indians, Who had sheared sheep for the Overend family about a month previous, were the likely suspects. Since there was no sign of resistance by John Overend, there is little doubt that he must have known his assailants.5
The sheriff rounded up several Indians, but eventually released them. The main suspects were Jose de Jesus, Jose del Carme, and Clemente Manteca. In February 1875, by an odd twist of fate, the first two were convicted of killing James Johnson on a lonely rural road four years previous and sentenced to death.6 Legal authorities tried neither for the Overend killings, but eventually prosecuted Manteca. The San Diego Union recorded the results: “Yesterday afternoon, a short time before the hour for the sailing of the steamer Ancon , the prisoner, ‘Manteca,’ was brought into Court; his plea of ‘not guilty’ was withdrawn and he plead guilty of manslaughter! He was immediately sentenced to ten years imprisonment! handcuffed, and taken on board the steamer by the Sheriff, who is now on the way to San Quentin with him,”7 Obviously the writer did not consider that justice had been done. It was indeed an unusual ending to one of the most sensational homicides in San Diego County and the hysteria surrounding this case may have increased the hostility toward Indians.
Less than one year later Gabriel Cuayer and Filisan Alipas were accused of killing William L. Rogerson on a rural County road. Once again the San Diego Union chronicled the “Foul Murder” of another white citizen. In this particular case both men signed confessions of their guilt.8 These declarations were used by the district attorney in prosecuting the case, but Judge McNealy warned the jury that the confessions must be “received with great caution, and that in order for it to have weight as evidence in finding their verdict they should be satisfied from the evidence, that it was made voluntary and without undue influence any kind.”9 The motive apparently was robbery and the evidence, along with the confessions, against the two seemed strong with the district attorney producing several witnesses who had seen them leave for Rogerson’s camp the evening of the crime. One witness noted that Cuayer returned later to her home with money and asked her to save it for him. He did not reval where he had acquired the money. Cuayer aged twenty-three and Alipas only seventeen had been drinking the night of the crime and probably were under the influence.10 The jury found both Indians guilty of first degree murder and sentenced them to death. Each received a sanity hearing and both were declared insane and apparently were committed to mental institutions.11
In 1892 the San Diego Union reported that a “ghastly murder” had occurred on an Otay Mesa farm, in an isolated rural area less than two miles from the Mexican border. John and Anna Geyser, aged sixty-six and seventy-two respectively, lived a peaceful existence on the mesa until the evening of October 16th. At about 6 p.m., just after sundown with darkness closing in, one or more assailants approached their house carrying two clubs. They walked around the house, accosted John who had been milking a cow, and knocked him down with several blows. They literally beat Geyser’s head to a pulp. Then they attacked and killed Anna who apparently heard the commotion.12 Three neighbor girls riding horses on the road near the Geyser farm heard John’s cry and a thumping sound and returned home to tell their father. Within thirty minutes Fred Piper and his son, the closest neighbors, arrived at the Geyser house and found local handyman Indian Joe inside, both grabbed him. Fred ordered his son to retrieve a picket pin and hit the suspect. The boy quickly inflicted severe head wounds on the intruder with the sharp, heavy, metal instrument. After a brief struggle the two subdued and tied Indian Joe with a rope. With a light they discovered the bloody bodies. They summoned law enforcement authorities who took custody of Indian Joe and quickly spirited him to the San Diego County Jail to prevent a lynching.13
In his opening statement, the district attorney claimed that the motive was robbery, but halfway through the trial changed it to revenge. A brief trial ended in the conviction of Indian Joe on circumstancial evidence. An interesting twist to the story occurred when San Diego Police Officer Jose Cota wrote a letter to the governor asking for a stay of execution to provide time to investigate the case further. Cota, who had known the accused for over fifteen years, believed that Indian Joe might not have committed the Geyser murder.14 Cota’s efforts were to no avail; less than three months after the trial prison authorities at San Quentin executed Indian Joe. Whether he actually committed the homicide will never be known. It should be noted that he had been drinking wine before the crime and probably was under the influence of alcohol.15 In each of the preceding cases studied, either the perpetrators or the victims had been drinking. It is clear that alcohol played an important role in nineteenth-century San Diego homicides.
By turning to a statistical analysis of the cases involving the thirty-six homicide victims of Indian murderers we may gain a better understanding of the victim/perpetrator relationship. Fifty-two percent of the victims (nineteen) were Anglos, while forty-one percent (fifteen) were Indians. By killing whites, the Indian perpetrators would increase their chances of being convicted and probably would receive longer sentences. Seventy-five percent of the perpetrators knew their victims. Even today most victims know their attackers. Not surprisingly, eighty-three percent of the crimes were committed in rural areas, the other seventeen percent occurred in urban centers. During the late nineteenth-century most Indians, who did not live on reservations, worked as ranch hands or farm laborers throughout the county. A breakdown of weapons reveals that Indians, used blunt instruments twenty-eight percent, hand guns twenty-five percent, knives twenty-five percent and axes thirteen percent of the time. Robbery served as a motive for thirty-six percent of the homicides, while fifty-five percent of the crimes involved quarrels of various types. Twenty-five percent on city streets, thirteen percent on ranches, sixteen percent on lonely county roads, and eleven percent on Indian reservations. The pattern is quite clear: most perpetrators knew their victims and usually killed them after a quarrel near their home in an isolated rural region.16
Although case studies and statistical data on these case files are helpful, a look at conviction rates by ethnic will offer us an even more graphic measurement of justice. San Diego County court records list a total of ninety cases that reached the indictment stage, with the ethnic breakdown being fifty-four percent Anglo, eighteen percent Hispanic, and twenty-five percent Indian. With this in mind one might think that the conviction rates would show a similar pattern, but this is not the case. The conviction rates of San Diego County murderers is quite revealing. Ninety indictments ended with the conviction of forty-two individuals. The ethnic breakdown indicates that convictions rates were thirty-three percent for Anglos, fifty-two percent for Hispanics, and seventy-three percent for Indians (See Table 1). By itself this high conviction rate for Indians is not necessarily significant. After all each case should be evaluated on its own merit. Nevertheless, when analyzed with other statistical data we can discern a pattern of bias that seemed to pervade the criminal justice system.
The degree of homicide selected by the jury for those convicted offers us another measurement of the criminal justice system. All things being equal, one might imagine that each ethnic group would receive similar convictions for the various degrees of homicide, but that is not what happened. Table 2 reveals that Indians received a dramatically higher percentage of convictions for first degree murder than Anglos or Hispanics. On the other hand, second degree murder convictions were about equal for all ethnic groups. Manslaughter convictions, however, reveal that only two Indians received a sentence for this lesser charge while judges or juries gave both Anglos and Hispanics equal percentages in this category. It is quite clear that there is a correlation between Indians and the degree of homicide.
Plea bargaining provides another measurement of the criminal justice system. Not a single Anglo plea bargained during the judicial procedures. However, forty-four percent of the Hispanics (four cases) and thirty-five percent of the Indians (six cases) plea bargained. This suggests that defense counsels, possibly with the encouragement of the prosecutors pressured their clients to cop a plea to either escape the gallows or to receive a lighter sentence. Plea bargaining allowed the judge to sentence the defendant without the long and costly process of a trial. Apparently Anglos, who had better legal counsel, did not even consider this an option. Unfortunately, Indians and Hispanics had little choice, especially with the language barrier and their inability to comprehend exactly what was taking place in or out of the courtroom. Therefore they suffered, particularly during the preliminary hearings when they seldom received counsel and also during the actual trial process when they often received inferior defense with court appointed lawyers. Little wonder that they had a high plea bargain rate. Of greater significance, the criminal justice system only required court appointed attornies for indigents at the trial stage. Without legal representation at the preliminary hearings, Indian defendants were victims of an unjust system. They were pressured by prosecutors to plead guilty and sometimes made confessions that could be used against them at the trial. Obviously Indian defendants were at a great disadvantage — the plea bargaining data clearly proves this.
Figure 1 visually displays the wide disparity of the court disposition of homicide cases. The legal system found only one Indian not guilty of murder. That in itself is quite remarkable; equally important only two Indians had their charges dismissed. Actually, those two cases were not seriously considered by the district attorney; he had already made up his mind on the case involving them.17 Therefore, if you would eliminate them, the results would be even more striking with an eight-one percent conviction rate. The statistics reveal that Indians, unlike Anglos, did not slip by the legal blocks. They, and to a lesser extent Hispanics, received harsher punishment than Anglos.
Sentencing (See Table 3) offers us a final check of the criminal justice system and how it treated ethnics. Seventy percent of the Indian murderers received either a life sentence or the death penalty. On the other hand, about thirty percent of the Anglos received these harsh penalties, a rate comparable to the Hispanics. In other words over sixty percent of the death penalty cases involved Indians while only about twenty percent were Anglos. These statistics are quite remarkable, but as will be seen, they can be explained with further analysis.
Nineteeth-century homicide cases are not easy to assess, and should be evaluated on an individual level. One must be aware of the ethnic cross-over that might cause prejudice to appear in the courtroom. For example, fifty-two percent of the victims of the Indian murderers were Anglos. This fact alone adds an important dimension to understanding what actually happened during the legal process. It is not difficult to imagine what an all-Anglo jury would conclude in a trial involving a white victim and an Indian defendant. All ten Indians convicted of first degree murder and all six death penalty cases involved Anglo victims. Three of the six plea bargains cases concerned Anglo victims, with two defendants being convicted of first degree murder. The other case involved Clemente Manteca, accused of killing the Overends. The district attorney apparently believed he had a weak case, therefore he accepted a guilty plea for manslaughter. One of the two death penalty cases involving Anglo defendants included the killing of a law enforcement officer in Oceanside, which would more likely mean the ultimate penalty. Clearly Indians who killed Anglos received severe punishment. Given the times and the hostility toward Indians this is not surprising.
Once in prison, Indians did not fare well; five of them died. Of that number, two expired within one year, one within three, one within five, while the last one survived ten years, an average of four years per inmate. Thirty-eight percent of the Indian inmates died in prison. On the other hand, only three Anglos (twenty percent) died in prison and they survived an average of twenty-one years before expiring. For whatever reasons, Indians could not mentally or physically handle close confinement within the prison walls.18
Six Indians received the death penalty — all for killing Anglos — four of them ended up on the gallows. One was declared insane and one had his sentence commuted to life in prison. Sheriffs executed Jose del Carme, Felisario Alipas, and Jose Luis Osuna in San Diego, while prison authorities executed Indian Joe within the confines of San Quentin.19 The fact that two condemned men did not end up on the gallows suggests that the system of appeals worked. Nevertheless, it seems clear that Indians were more likely to be given life sentences or condemned to death, particularly if they murdered Anglos. Incidently the only Anglo to be charged with killing an Indian received an acquital from a jury.
While this brief essay has focused on the treatment of Indian murderers in San Diego County, it should be noted that other regions had similar high conviction rates for Indian defendants during the same era. For example, Sonoma and San Luis Obispo had one-hundred percent conviction rates (six and two cases respectively), while Sacramento had a sixty percent rate (three cases).20 In six counties surveyed in Arizona Territory, 1880-1912, the conviction rate for Indians averaged seventy-four percent (sixty-six cases), while Anglo convictions were a little over thirty-seven percent.21 The reasons for these high convictions rates can be attributed to several factors. The hostility toward Indians, of course, was high during this era in both California and Arizona. Particularly with the high rate of Anglo victims in San Diego, one can imagine that the criminal justice system might have a tendancy to treat Indian murderers with more severity. Newspapers editors often demanded harsher punishment for Indian defendants and complained if the criminal justice seemed too light. A San Diego Union headline of December 6, 1892 heralded: “It Cost $400 to Convict Indian Joe of the Otay Murder.”22 It seemed a matter of civic pride that a jury convicted him for such a small amount of money. Juries may not have been influenced by newspaper rhetoric that often accompanied the trials, but they, as well as most Anglo citizens, probably viewed Indian crime as more problematic than Anglo crime.
The plea bargaining aspect, however, is even more significant. Indians received inferior legal representation with court appointed attorneys who found themselves in a difficult situation. With unpopular cases that would be hard to win, they probably just went through the motions. This explains the high plea bargaining rate for Indian murder cases. The lack of legal counsel during the preliminary hearings was crucial.23 Defendants often made statements or, even worse, confessions that could be disasterous during the plea bargaining stage or in the court room. Little wonder that courts convicted Indians at a much higher rate than Anglos. Equally important, because of their inability to survive in prison, the Indians suffered to a greater degree than Anglos. It was indeed a sad era for the California Indian.
1. The murder of six members of the McGlincy family by James Durham in Campbell, a small community just south of San Jose, on May 26, 1896 is another example of mass murder during the nineteenth-century. Incidently Dunham was never caught; he fled south through San Diego and escaped across the border into Mexico. See the San Jose Mercury May 27-June 15, 1896.
2. The homicide data was collected from coroner’s reports newspaper accounts, and records from the superior, district, sessions, and country counts. The indictment and conviction rates were gleaned from the Registers of Action, Superior Court, 1880-1900; (San Diego History Center Archives) and Minutes of the District Court, 1850-1897 (San Diego County Old Records Center).
3. See the testimony of William B. Couts and G. Carillo in the inquest held on John Warren, F-01-01, San Diego Coroner’s Inquest Reports, 1853-1905 (San Diego Historical Society Archives).
4. This kind of medical testimony about the significance of physical was rare until about the mid-1890s. It is possible that most dictors of that era had poor medical training that would preclude them from drawing such conclusions. Whether the eventual suspects Jose de Jesus, Jose del Carme, Macinche, and Clemente Manteca were right-handed, is not known. Testimony of Dr. E.D. French, J.F. Chapin, and C.C. Watson before the inquest held over the Overend victims in F-05-01, San Diego Coroner’s Inquest reports.
5. “Testimoney of Pio Pena, Captain at Capitan Grande Indian Reservation, statement of Antonio Maria, statement of Jose Arcama Pena, and testimony of Dr. E.D. French” in F-05-01, San Diego Coroner’s Inquest Reports.
6. Jose de Jesus and Jose del Carme killed James Johnson on July 10, 1870, but were not prosecuted until 1875. Jose del Carme claimed that Jose de Jesus had been involved in the killing of the Overend family. At his execution del Carme stated that Manteca and Jose de Jesus were in prison for crimes they did not commit. This last minute disclaimer was not convincing since he pleaded that he also was not guilty. See the San Diego Union February 10, and September 18, 1875.
7. See San Diego Union July 15, 1875. For a debate over the correctness of Clemente Manteca’s punishment see also San Diego Union July 17, and 20, 1875.
8. “Statement of Prisoner Gabriel Cuayer;” and “statement of Filisan Alipas,” in the People of the State of California against Gabriel Cuayer and Filisan Alipas, Justice Court, San Luis Rey Township, County of San Diego (San Diego Historical Society Archives).
9. “Instructions of Judge McNealy,” in The People versus Filisan Alipas and Gabriel Cuayer, District Court, (San Diego History Center Archives).
10. “Statement of Filisan Alipas;” “statement of Sarah R. Peters;” and “statement of Josephine Peters,” in The People versus Gabriel Cuayer and Filisan Alipas, Justice Court, San Luis Rey Township.
11. There are no records of their executions, and I was unable to locate any commitments to insane asylums. “Report of Jury on the Sanity of Gabriel Cuayer;” and “Executive Reprieve for Filisan Alipas,” by Governor R. Pachecho, in People vs Alipas, District Court.
12. See Clare V. McKanna, Jr. “Four Hundred Dollars Worth of Justice: The Trial and Execution of Indian Joe, 1892-1893,” Journal of San Diego History 33 (Fall 1987). 197-212.
13. San Diego Union October 23, 1892.
14. See the letter from Jose Cota to Governor H.H. Markham, February 14, 1893, file No. 195, in Applications for Pardon, Historical Case Files, (Sacramento, California State Archives).
15. See McKanna, “Four Hundred Dollars,” p. 204
16. This victim/perpetrator homicide date was collected from newspapers, coroner’s reports, and court cases.
17. Pedro Armento and Jose Berreras, along with Indian Joe, were eliminated and prosecution was dropped in order for them to testify at Indian Joe’s trial. See “People vs Pedro Armento And Jose Barreras,” in the Justice Court of Otay Townships, October 22, 1892 (San Diego History Center Archives).
18. See Clare V. McKanna, Jr., ‘The Treatment of Indian Murders in California, 1850-1900,” forthcoming in American Indian Quartely; San Quentin Prison Daily Logs, 1856-1900; and San Quentin Prison Registers, 1850-1900 (Sacramento, California State Archives).
19. See San Diego Union September 18, 1875, December 28, 1878, March 4, 1893; and entry No. 1 Jose Gabriel, “Execution Books, 1893-1967,” San Quentin Prison (Sacramento, California State Archives).
20. Registers of Action, District and Superior courts, Sonoma, San Luis Obispo, and Sacramento counties, 1850-1900.
21. See Clare V. McKanna, Jr., “The Unbalanced Scales of Justice: The Treatment of Indian Murderers in Arizona Territory, 1880-1912,” paper delivered at the National Endowment for the Humanities Summer Seminar, University of Arizona, Tucson, July 1988.
22. San Diego Union December 6, 1892. See also July 15, 17, and 20, 1875; October 19 and 23, 1892; and San Diego Sun October 17, 1892; and March 2, 1893.
23. Juan Alvarez, Antonio Bertrand, Indian Joe, Filisan Alipas, and Gabriel Cuayer and possibly other Indian defendants did not receive legal counsel at the preliminary hearings held by justices of the peace. Five of these defendants were sentenced to death. In the Indian Joe Case, this proved to be critical.
THE ILLUSTRATIONS are from the San Diego History Center Research Archives.