An Old Town “Gunfight”: The Homicide Trial of Cave Johnson Couts

by Clare V. McKanna, Jr.

  Cave Johnson Couts

In the tradition of the Old West, either by design or by chance, they walked toward each other in the area of the Plaza. Couts was carrying a shawl. He dropped it, to reveal a shotgun. Mendoza … turned to flee and was struck with a blast from both barrels. He staggered … and fell dead.¹ … Richard F. Pourade, The Silver Dons

The words quoted above, describing an incident in 1865 on the streets of Old Town San Diego, paint a vivid, dramatic confrontation reminiscent of a shootout in the High Noon cinema tradition.² Couts was arrested, indicted by a grand jury for murder, tried and found not guilty, a verdict that “was received with much applause.”³ Although this may be somewhat troubling to some readers, if Pourade’s version is accurate, the verdict should not surprise those familiar with justice in the nineteenth-century West. If someone threatened your life, you had the right to stand your ground and kill that person. The problem is that there is considerable doubt as to the accuracy of Pourade’s account and the veracity of his sources. What really happened at Old Town on February 6, 1865 and why did the jury find Cave Couts not guilty of this murder?

During the nineteenth century western cattlemen were believed to have developed a code of behavior, commonly called the “Code of the West,” to be used to settle disputes.⁴ Although it became legend throughout the American West, it was especially associated with cattlemen in Texas, New Mexico, and Colorado. Lewis Atherton suggests that “the fighting code of the West consisted primarily of the rule that one must not shoot an unarmed man.”⁵ There is no definitive statement on the code; however, a variety of sources suggests that there were four basic tenets: you must neither shoot an unarmed man, nor shoot a man in the back, retreat from a fight, or accept an insult without a fight.⁶ Most historians believe that the “Code of the West” actually existed, but there is some difference of opinion as to what it really means and whether it was accepted and by whom. It is very possible that the code was only used in the cattle country and had little influence in California.

Another concept that seems to be locked together with the code is the “no-duty-to-retreat” doctrine that suggests you do not have to back away from a fight.⁷ English common law demanded that when confronted with a fight a person must retreat until his back is against a wall, and if no wall exists keep retreating. Killing your assailant should be your last resort. During the colonial era and continuing into the early national period in the United States that concept was modified until “no duty to retreat” became generally accepted by the late 1870s. It basically meant that you had the right to stand your ground and kill your adversary if necessary to preserve your own life. Historian Richard Brown claims that the concept of “no duty to retreat reigned mainly in the frontier states” of the American West. Brown also suggests that we can trace our high homicide rates to this concept because it encouraged men to use violence to settle a dispute that might have been defused if one of the combatants had “retreated.”⁸ As will be seen, even if Pourade’s account is correct, Cave Couts violated the “Code of the West.” Since Couts was a Tennessean and if the code was as widespread as Brown suggests, it seems likely that he did know about it. Some Californians also used the “no-duty-to-retreat” doctrine to its fullest extent.⁹

Occasionally during the nineteenth century, well-established members of local communities virtually got away with murder. The Cave Couts murder trial that occurred in San Diego in October 1866, illuminates this phenomenon. Within a short time after his arrival in San Diego, Couts became a very influential member of the local community. A West Point graduate from Tennessee, Cave arrived in San Diego a lieutenant of the First Dragoons in 1848. He married Ysidora, the daughter of a wealthy landowner Juan Bandini, in April 1851 and soon resigned his army commission. As a wedding present Ysidora received Rancho Guajome from her brother-in-law Abel Stearns. Living on his rancho, Cave became an influential member of San Diego society who held numerous political positions within the local community. For example, he was appointed Indian sub-agent for San Diego County in 1852, two years later local voters elected him justice of the peace and school commissioner of San Luis Rey Township and he served briefly as county court judge. He was also deeply involved in the Democratic Party in San Diego County, serving as a vice-president of the county Democratic convention and entertaining William H. Seward at Rancho Guajome in 1869.¹⁰ Couts was certainly a substantial and active citizen of San Luis Rey and San Diego County. However, there was another troubling side to this complicated man.

  The plaza at Old Town, circa 1872

In 1855, a grand jury indicted him for severely beating two Indians with a knotted rope. He was acquitted on a charge of assault in one case; however, a grand jury allegedly indicted him for manslaughter on another count-the second victim had died. Eventually the charges were dropped in that case as well.¹¹ In May 1870, he inflicted “dangerous wounds” upon Waldemar Muller a teacher hired by Couts to tutor his children at Rancho Guajome. Muller had allegedly assaulted one of his daughters, so, according to one historian, Couts “nominated himself as a one-man prosecutor, jury, and executioner” and “unloaded two charges of bird shot” into Muller.¹² Fortunately, Muller survived and may have been paid “a large sum of money” with the stipulation that he quickly leave the community. Historian Lyle Annable suggested that “Couts’ actions were sometimes the result of haste, anger, and “the belief that he was always right.” In other words Couts had the tendency to “Shoot first and examine the target afterwards.”¹³ Historian Paul Bryan Gray claimed that “Couts had an unfortunate propensity to commit acts of violence” and suggested that “this undesirable behavior may have been caused by excessive drinking, a problem that afflicted him most of his life.¹⁴ Evidence indicates that Couts often acted quickly and rashly when confronted with some real or imagined grievance.

On February 6, 1865, Cave Couts was conducting business in Old Town San Diego. Looking out the door of a butcher shop, he saw Juan Mendoza, a former employee who had threatened him, walking down the street. Couts picked up a double-barreled shotgun, walked into the street, and shouted at Mendoza, who turned and ran. Couts fired one shot which apparently missed and then fired the second barrel that killed Mendoza instantly.¹⁵ The killing of an unarmed man with a shotgun is not a very pretty sight, and it is not unusual to see such events described and embellished in rather captivating phrases to make them more palatable to the reading public. For example, in historian Richard Pourade’s narrative Couts and Mendoza “walked toward each other in the area of the Plaza. Couts was carrying a shawl. He dropped it, to reveal a shotgun. Mendoza, according to witnesses, turned to flee and was struck with a blast from both barrels.”¹⁶ This dramatic account, probably taken from Rufus K. Porter’s stories in the San Francisco Bulletin, is basically fiction. There is no evidence to suggest that they had a meeting in this High Noon tradition.

Both Pourade and Annable have painted a portrait of Juan Mendoza as a sinister individual who probably deserved killing. Pourade notes that Mendoza had developed “a reputed career as a badman in Sonora” and that “armed with a sixshooter and a knife” he visited saloons in Old Town making threats and “sending challenges to Couts.”¹⁷ Annable sees Mendoza as a “Mexican renegade” who had “become involved in the power struggle for control of Baja California.” He suggests that Couts employed “the bandit” as mayordomo, “but later had cause to dismiss him.” Amiable’s version of the story also has Couts living in fear of an ambush and then finally “Couts came face-to-face with Mendoza, and the latter was shot and killed.¹⁸ Both of these accounts have their facts confused.¹⁹ What really happened that day in Old Town plaza?

  George T. Tebbetts

About 7:30 a.m. in the morning, February 6, 1865, Cave Couts was talking with G. P. Tebbetts, owner of a butcher shop in Old Town, San Diego. Just then Juan Mendoza passed by on the street and Couts, observing him only after he had passed, asked “who was that?” Tebbetts replied “that was Juan Mendoza.”²⁰ A few minutes later, as Mendoza passed by again, Couts retorted “that man threatened my life on sight,” picked up his shotgun, and stepped into the street behind Mendoza. Suddenly realizing what Couts was about to do, Tebbetts said “don’t shoot him.” The butcher also heard Mendoza exclaim: “Wait a moment,” followed by Couts’first shot. Tebbetts turned around and saw “Mendoza step 15 or 20 steps when he fell, this was after the second shot.²¹ Louis Rose also witnessed the shooting. He observed Cave Couts in the street aiming a shotgun. “When Mendoza was about 20 or 25 yards from Couts the first shot was fired. I heard Mendoza uttering some words … when about 5 or 6 yards farther, I heard the second shot fired, but did not see him fall.²² Rose also testified that he saw Mendoza running across the Plaza and around Lyon’s corner when Couts fired.These two accounts suggest that Couts caught Mendoza by surprise, probably unarmed, and gave him little chance to escape by blasting him with both barrels of a shotgun. In violation of the “Code of the West” (never shoot a man in the back) Couts took his revenge, probably with a great deal of satisfaction. Mendoza was probably unarmed and Couts; did not meet him face to face, but instead stepped into the street behind his victim with a double-barreled shotgun, hollered at Mendoza, and immediately fired.²³ It is doubtful that Mendoza knew that Couts was in town and at such an early hour probably did not consider wearing a sidearm. Couts, on the other hand, was well armed, indicating that he may have been thinking about the alleged threats by Mendoza. This would also suggest premeditation and malice aforethought, the basic legal definition of murder in the first degree. The evidence presented at the coroner’s inquest was sufficient for a grand jury to indict Cave Couts for murder.

What about Mendoza’s threats? Were they real or contrived by Couts? The only evidence of threats come from Couts himself, a rather unreliable source, and the deposition of Eugenio Morillo taken October 11, 1866, on behalf of the defendant just prior to the trial. Morillo testified that Mendoza had lived in his house for eighteen months and that he had known him for many years. When asked about Mendoza’s character, Morillo stated “he was a violent man in Lower California, he killed Andres Manriquez there, shooting him from behind.²⁴ When cross-examined by the prosecutor, Morillo admitted that he was not present at the Manriquez shooting, but had heard about it second hand. The prosecutor asked “how do you know that he was an assassin, of your own knowledge?” Morillo replied “I never saw him kill any one.”²⁵

There are no court transcripts or minutes, but Rufus Porter, the jury foreman for the Couts’ trial, offered his “official” version of the court proceedings for the San Francisco Bulletin. In the absence of transcripts, his is the only account of the trial itself. Porter’s version, however, should be read with caution. His prejudice in favor of Couts is well displayed within his letters to the San Francisco Bulletin. This, of course, helps to explain the inconsistency of Pourade’s account, that accepts Porter’s unreliable narrative. Beniamin Haves and Volney E. Howard, a Los Angeles attorney, defended Couts before Judge Pablo de la Guerra’s First District Court, in San Diego.²⁶ Porter suggested that testimony by the defense revealed that Cave Couts did not visit San Diego for about “six or eight months” because of “fear of being ambushed and murdered” by Mendoza. In his account of the trial Porter refers to Mendoza in negative terms suggesting that “Mendoza and his devils” had murdered “nearly a dozen people in cold blood” in Baja California before crossing the border into San Diego County.²⁷ Porter stated that “it was proved, and the witness was the reliable Don Juan Forster, that Mendoza constantly went around with a six-shooter and a knife.²⁸

Testifying on his own behalf, Couts related that “he constantly received threatening messages from him [Mendoza] which he believed would be carried out if opportunity offered.” After several months Couts had to visit San Diego to conduct business. Porter’s version of the shooting maintained that Mendoza walked towards the defendant and then Couts “dropped the shawl which covered him and seized the gun which was standing back of him. As soon as Mendoza saw the gun he started to run.” Couts called for him to stop and then fired two shots.²⁹ One might ask the question: whom do you believe, the version by Couts or the two eye-witnesses Rose and Tebbetts? The jury may have accepted Couts’ version, even if it was not plausible, because they agreed with his upholding the concept of “no-duty-to-retreat.” Mendoza had threatened him, therefore Couts did not have to retreat even though he was behind his victim with a shotgun. As Porter notes, the discharge of Couts from legal custody “was received with much applause, and the verdict of ‘not guilty’ pronounced righteous.”³⁰ As far as the citizens of San Diego were concerned, Cave Johnson Couts, an influential member of the community, had been vindicated.

One of the interesting facets of this case is the absence of documentation to “prove” the bad character of Mendoza. For example, Couts claimed that Mendoza had sent “threatening messages” but did not produce any documents as proof. The attempts to paint Mendoza as “reputed bad man” and a “Mexican renegade” also lack veracity. Indeed, Mendoza may have been a tough character; however, there was no documented evidence to verify this. Even Morillo, who had known him for many years, had neither seen Mendoza kill any one, nor did he have proof that Mendoza actually had committed homicides.³¹ Baja California had been in turmoil during this period and “revolution” or political intrigue was not uncommon. Mexico had been suffering political chaos since 1821, and politics in Baja California, a province so far from Mexico City, were probably even more turbulent. But all of this talk of the “notorious” Mendoza seems to be a straw man. It is doubtful that a jury of white males would have convicted Couts even if all of these alleged character traits were false. Mendoza, whatever his reputation, probably made threats, and one was enough to allow Couts the “right” to kill his adversary, whether he was unarmed or not. If a man threatens you, shoot first and ask questions later.

Evidence in this case shows that the “Code of the West” was ignored. Couts clearly violated two of the major concepts of the code-never shoot an unarmed man or shoot a man in the back. Cave might have argued that he had been threatened and therefore he had to take action to avert being killed himself. That might seem a bit thin today, but it would probably have been accepted by most white males in San Diego during the nineteenth century, and the jury’s verdict suggests that was the case. Why, many would argue, wait until someone tries to shoot you from ambush? It made more sense to take action and in this case Couts caught Mendoza completely by surprise and gave him both barrels. A jury of his peers apparently accepted Couts’ explanation and resolution of his difficulties with Mendoza and therefore found him not guilty.

The following documents provide insights on how the criminal justice system operated in San Diego and illustrate the treatment of Cave Johnson Couts, defendant in this 1866 murder trial. The first document, the coroner’s inquest into the death of Juan Mendoza, provides eye-witness documentation on the actual shooting in Old Town. Coroner’s inquests provide historians with important information on the victim and often identify the perpetrator. In this particular homicide case, Louis Rose and G. P. Tebbetts offer similar accounts that corroborate where and how the shooting of Mendoza occurred. The indictment, the second document, lists the charges against the defendant, the crime of murder. The indictment form that had developed by this time was fairly standard. It had to give the defendant’s name, what crime had been committed, and the methods used to perpetrate the crime. The third document is the deposition of Eugenio Morillo requested by the defendant to buttress the case that Mendoza was a “dangerous” man who had allegedly killed people in the past. During the deposing the prosecution cross-examined Morillo on several points. Finally, the verdict of the jury provides the conclusion to this fascinating homicide case. Because of their very nature, verdicts tended to be short and to the point. After reading these documents, it is up to the reader to decide whether justice had been done. Remember, of course, that in nineteenth-century San Diego rules of law were considerably different than they are today. Anyone wishing to pursue this or other homicide cases will find numerous documents housed in the San Diego Historical Society Research Archives.

    Coroner’s Inquest. February 6, 1865                          Indictment

Report of Coroner’s Jury on the body of Juan Mendoza, February 6, 1865.

Coroner’s Jury convened on the 6th day of February A.D. 1865 before J. Compton, Esq. The jury having been duly sworn by the acting coroner.³³

D. B. King was elected foremen of said jury.

Mr. Louis Rose³⁴ being duly sworn doth depose and say: I reside in San Diego, San Diego County, state of California. About between 7 or 8 o’clock this morning I saw Cave J. Couts levelling or aiming with a gun at Mendoza who was running across the Plaza. When Mendoza was about 20 or 25 yards from Couts, the first shot was fired. I heard Mendoza uttering some words. I do not know what. When about 5 or 6 yards farther, I heard the second shot fire, but did not see him fall, and saw him running around Lyon’s Corner. When Couts shot he was about 6 or 8 yards in front of Tebbett’s Butcher Shop. 

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G. P. Tebbetts³⁵ being duly sworn doth depose and say. I reside in San Diego, San Diego County, State of California. Mr. Couts and myself were standing under the [comer or cerrides?] of my butcher shop this morning talking, when Mendoza passed by towards the Franklin House. When Mr. Couts said who is that. And I said Mendoza. In a few minutes Mendoza came back. When he came nearly in front of the shop. C. J. Couts says that man has threatened my life on sight, meaning Mendoza, at the same time picking up his shotgun which stood leaning against the butcher shop, and walked out 8 or 10 paces from the shop at the same time saying to him to stop. When he took up his gun, I said to him not to shoot him. When Couts hailed him Mendoza exclaimed wait a moment. This last exclamation was made before Couts shot. Couts then shot. I stepped into the shop so that I did not see Mendoza at the first shot. I immediately turned round and seen Mendoza step 15 or 20 steps when he fell. This was after the second shot.

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State of California
County of San Diego
Before John Compton³⁶, justice of the Peace, Acting Coroner.
In the matter of the inquisition upon the body of Juan Mendoza, deceased.

We the Undersigned, the jurors³⁷ summoned to appear before John Compton, Esq. acting coroner, to inquire into the cause of the death of Mendoza found lying dead in the Plaza of San Diego on the morning of the 6th day of February, 1865. Having been duly sworn according to law and having made such inquisition after inspecting the body and hearing the testimony adduced, upon our oaths each and all do say. That we find the deceased was named Mendoza, about 46 years of age, native of Mexico. That he came to his death on the 6th day of February A.D. 1865 in the town of San Diego, San Diego County, State of California, by hands of Cave J. Couts with a double barrel shot gun, said gun being loaded with large shot.

All of which we duty certify by this inquisition, in writing, by us signed. This sixth day of February A.D. 1865.

D. B. King
Asa Hande
Francis Stone
S. Minter
A. B. Smith³⁸
W. Evans

Indictment

The People of the State of California Against Cave. J. Couts In the County Court in and for the County of San Diego, State of California, March Term, A.D. 1865.

The People of the State of California against Cave J. Couts in the County Court of San Diego, at its March Term A.D. Eighteen hundred and sixty five, The said Cave J. Couts is accused by the Grand Jury of San Diego County, by the Indictment³⁹ of the Charge of Murder, “Committed,” as follows:

The said Cave J. Couts did on the Sixth day of February A.D. 1865, at San Diego, in the County of San Diego and State of California,⁴⁰ did commit the Crime of Murder, and with malice aforethought and did commit such Crime of Murder on the person of Juan Mendoza in said San Diego, did with a double barrel shot gun loaded with powder and lead balls, did kill, slay unto death the said Juan Mendoza.⁴¹

So the Grand Jurors aforesaid upon their oaths present and find that the said Cave J. Couts is guilty of the Crime of Murder in manner and form as aforesaid Contrary to the Statutes in such cases made and provided, and against the peace and dignity of the People of the State of California.

                                        D. A. Hollister, District Attorney

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Deposition of Eugenio Morillo

The People of the State of California vs. Cave J. Couts In District Court 1st Judicial District of California for San Diego County

Deposition of Eugenio Morillo, taken on the part of the defendant … by Consent of parties. Eugenio Morillo being duly sworn deposes and says.

Question: What is your name, age, and residence?

Answer: My name is Eugenio Morillo, my age is sixty-seven years. and I reside in the town and county of San Diego.

Question: How long have you resided in the County of San Diego?

Answer: Some fourteen or fifteen years.Question: Have you ever resided in Lower California?

Answer: I have, I was born there.Question: Did you know Juan Mendoza in his life time, if so where?

Answer: I knew him in Lower California and in this count. In Lower California he once lived in my house eighteen months.

Question: What was his character was he peaceful or otherwise amongst those who knew him in Lower California?

Answer: He was a violent man in Lower California, he killed Andres Manriquez there shooting him from behind, another man a blacksmith owed him seven dollars for which he (Mendoza) was going to kill him, the blacksmith had to flee at night.

Question: Why did Mendoza leave Lower California?

Answer: I don’t know why, he went to the Colorado River from Lower California, they were following Mendoza from Lower California and he came to this county. The authorities drove him from Lower California.

Question: Do you know the defendant Cave J. Couts?

Answer: I do.

Question: Have you ever had any conversations with Mendoza concerning the defendant?

Answer: Once I went to see Mendoza to collect of him eighty dollars which he had owed me in Lower California, he said he could not pay me, because Couts, the defendant owed him and would not pay him, that Couts owed him from two to three hundred dollars, then Mendoza raising up his right hand, said: Mira, Morillo, si cuevas no me page el dia que lo encuentro en el camino lo pago un grito y no save de las acendes de su caballo, me pague o me la un pagaré, o si no el no me queda deber un centado, que no era gritar en la casa, como gritar en el monte, he said this in an excited manner, and con mucho sobervia.⁴²

Question: Did you ever tell this to Couts?

Answer: Yes, I told him to put him on his guard, because I knew the man, Mendoza, and feared that Couts would be killed by him. I told the defendant this some five or six days subsequent to this conversation between Mendoza and myself, and as soon as I saw the defendant, I told defendant this some two or three months, as near as I can recollect, before the death of Mendoza.

Cross Examination by Prosecuting Attorney
Question: What was the cause of Mendoza’s shooting Andres Manriquez?

Answer: Because Mendoza was always in revolutions and setting people by the ears.

Question: Were you present when Mendoza shot Manriquez?

Answer: I was not present.

Question: Where were you living at that time?

Answer: I was living at that time in San Diego.

Question: How do know that Mendoza killed Manriquez?

Answer: I know it from Commandante on the Frontier.

Question: Do you know that revolution was in existence, when Mendoza killed Manriquez?

Answer: Espasa was then Commandante of the Frontier, Manriquez was one of his men. Mendoza went from San Diego down there.

Question: Do you know that a revolution was in existence in Lower California when Mendoza killed Manriquez?

Answer: Mendoza had made a revolution against Espasa at that time.

Question: Who was in command of the two opposing parties?

Answer: Mendoza commanded the party that he took from him and Espasa commanded the party down there.

Question; Was not Mendoza living in Lower California just prior to this revolution you speak of?

Answer: Yes, just prior to this revolution Mendoza was living in Lower California.

Question: At that time did not Mendoza bear a character on an average with a majority of the citizens of Lower California? The question objected to by defendant, as inadmissible.

Answer, insisted upon by the State.

Answer: What sort of a character was his, a very bad fame, that of an assassin.

Question: How do you know that he was an assassin, of your own knowledge?

Answer: I never saw him kill any one.

Question, by the defendant:

Question: From your knowledge of Mendoza, do you think he was a man apt to execute his threats?

Answer: He was, certainly, he would be apt to get you before you got him.

Question: Have you ever had any personal difficulty with Mendoza?

Answer: I have not.

Question: How is your health at present?

Answer: I have been now bed ridden for the past thirty three days and I am not able to go to the Court House. I am dangerously sick.

                                            Eugenio Morillo
his mark X

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Notarized by G. A. Pendleton⁴³
Subscribed and sworn to before me this 11th day of October, 1866.
G. A. Pendleton, Clerk

Verdict of the Jury

The People of the State of California vs. Cave J. Couts
We the jurors⁴⁴ in the above entitled case, find the said defendant Cave J. Couts “Not Guilty” as charged in the indictment.San Diego, California
October 11th, 1866

Rufus K. Porter, Foreman⁴⁵

A. W. Luckett

Andrew Cassidy

José Moreno

Thomas Brady

Francis Stone⁴⁶

Samuel Warnock

William Wolf

Herman Mannasse

T. S. Branne

Thomas Lusk

Henry Hailer⁴⁷

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Notes1. Richard F. Pourade, The Silver Dons (San Diego: The Union-Tribune Publishing Company, 1963), 256.

2. High Noon (1952) became the stereotypical Hollywood portrayal of western shootouts. The gunfight was supposedly going to take place at “high noon” in the streets of a dusty little western town and would pit a town marshal against four bad guys recently released from prison. It, indeed, was a myth.

3. Rufus K. Porter, Letters to the San Francisco Bulletin, October 15, 1866. See Richard W. Crawford, Stranger Than Fiction: Vignettes of San Diego History (San Diego: San Diego Historical Society, 1995), 5-6.

4. See Lewis Atherton, The Cattle Kings (Bloomington: Indiana University Press, 1961), 39-40; C. L. Sonnichsen, Cowboys and Cattle Kings: Life on the Range Today (Norman: University of Oklahoma Press, 1950), 44; Robert Utley, High Noon in Lincoln: Violence on the Western Frontier(Albuquerque: University of New Mexico Press, 1987), 20; Richard Maxwell Brown, “Western Violence: Structure, Value, Myth,” The Western Historical Quarterly 24 (February 1993): 15; C. L. Sonnichsen, Tularosa: Last of the Frontier West (New York: The Devin-Adair Company, 1963), 21; and Joseph G. Rosa, Wild Bill Hickok: The Man and His Myth (Lawrence: University Press of Kansas, 1996), 105.

5. Atherton, The Cattle Kings, 39-40.

6. See Brown, “Western Violence: Structure, Value, Myth,” 15; Sonnichsen, Tularosa, 21-23; and Utley, High Noon in Lincoln, 20-21.

7. See Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (New York: Oxford University Press, 1991), preface and 3-38.

8. Brown, No Duty to Retreat, 5. For a discussion of English common law, see J. H. Ehrlich, Ehrlich’s Blackstone Part Two: Private Wrongs, Public Wrongs (New York: Capricorn Books, 1959), 384-401. For an argument against this doctrine, see Joseph H. Beale, Jr. “Retreat from a Murderous Assault,” Harvard Law Review 16 (May 1903): 567-82.

9. My current research suggests that many Californians refused to back away from a fight, and this usually led to a homicide. See Clare V. McKanna, Jr. “The Unbalanced Scales of Justice: Ethnicity and Homicide in Nineteenth Century California,” manuscript in preparation.

10. San Diego Herald, September 9, 1854, June 23, 1855, August 5 and 25, 1855, and September 22, 1869. See also Lyle C. Annable, “The Life and Times of Cave Johnson Couts, San Diego County Pioneer,” (M.A. History Thesis, San Diego State University, 1965), 5.

11. There is no record of an indictment on this charge. See San Diego Herald, July 14, 1855.

12. Annable, “Life and Times of Cave Couts,” 184. See also San Diego Union, May 19, 1870.

13. Annable, “Life and Times of Cave Couts,” 180.

14. Paul Bryan Gray, Forster vs. Pico: The Struggle for the Rancho Santa Margarita (Spokane: The Arthur H. Clark Company, 1998), 111.

15. See Testimony of G. P. Tebbetts and Louis Rose, body of Juan Mendoza, February 6, 1865, Coroner’s Inquests, San Diego County, San Diego Historical Society Research Archives, hereinafter SDHCRA.

16. Pourade, The Silver Dons, 256.

17. Ibid., 255-56.

18. Annable, “Life and Times of Cave Couts,” 183-84. Since Couts hired Mendoza to be his mayordomo, one wonders about his ability to the judge character of the people he employed.

19. Most of their facts in the Couts shooting came from Rufus K. Porter, Letters to the San Francisco Bulletin, 1866. In fairness to both authors, Pourade’s The Silver Dons is a popular history for local consumption and Annable’s work is a masters thesis in history. It is possible that neither writer was aware that the coroner’s inquests and court records were available at the San Diego County records center. They are currently housed in the San Diego Historical Society Research Archives.

20. Testimony of G. P. Tebbetts, body of Juan Mendoza, February 6, 1865, Coroner’s Inquests, San Diego County, SDHCRA. The exact spelling of George P. Tebbetts’ (also Tibbetts) name is unclear. Since either could be correct, I have chosen to leave Tebbetts remain unchanged in the document. See the Great Register of Voters, San Diego County, 1866-1879, 100, San Diego Public Library. Hereinafter Great Register.

21. Testimony of G. P. Tebbetts, ibid.

22. Testimony of Louis Rose, ibid

23. Rufus K. Porter, in one of his letters to the San Francisco Bulletin, claimed that Cave J. Couts had shot “an unarmed man while walking in broad daylight across the Plaza.” See Porter’s letter of October 9, 1866 to the San Francisco Bulletin.

24. Deposition of Eugenio Morillo, October 11, 1866, People v. Cave J. Couts, District Court, San Diego County, SDHCRA.

25. Ibid.

26. Benjamin Hayes, a very influential lawyer, had recently served as First District Court judge and had defended Cave Couts’ brother William Blunt Couts indicted for an earlier homicide that had occurred at the San Luis Rey Mission cemetery. See Crawford, Stranger Than Fiction, 52-53.

27. See Letter from our Correspondent, October 15, 1866, in Rufus K. Porter, Letters to the San Francisco Bulletin, 1866. There is no proof that such murders occurred in Baja California.

28. Ibid. It is interesting to note that Forster, who acted as interpreter for the court, also testified for the defense and helped to post a bond for the release of Cave J. Couts prior to his trial.

29. Ibid.

30. Ibid. Andrew Cassidy, a member of the jury, also had helped to post a bond for Couts’ release on bail.

31. See Deposition of Morillo, October 11, 1866, People v. Cave J. Couts, District Court, San Diego County, SDHCRA.

32. The coroner’s office has a long tradition in both British and American history. The office of the “Crowner” was instituted in 1194 to act as a check on the powers of the sheriff. Coroners kept records of all criminal justice proceedings in the county, collected revenues for the crown, and more importantly, claimed jurisdiction over all instances of “sudden or unexplained” death. This latter power is the one that best defines the coroner in nineteenth-century California. The coroner remains an elected official in most California counties. See R. F. Hunnisett, The Medieval Coroner(London: Cambridge University Press, 1961) and Thomas Roger Forbes, “Crowner’s Quest,” Transactions of the American Philosophical Society 68 (January 1978): 1-52.

33. Whenever a suspicious death occurred the coroner went to the scene of the deceased and selected from six to twelve men to serve as coroner’s jurors. They inspected the body of the deceased, questioned witnesses, and then made a statement of the cause of death based upon the information collected. Coroner’s inquests offer an important beginning point for historians who research homicides. They provide basic data about the victim and the crime, including race, gender, time, age, occupation, location, relationship, and cause. Although victim oriented, they are the best source for the collection of county-level homicide data and often include extensive testimony by individuals that witnessed the crime. For methodology on using state and local records, see Richard Crawford and Clare V. McKanna, Jr., “Crime in California: Using State and Local Archives for Crime Research,” Pacific Historical Review 55 (May 1986): 284-95.

34. Louis Rose, born in Germany, became a naturalized citizen in 1846 and was a merchant in Old Town. See Great Register, 69 and William E. Smythe, History of San Diego, 1542-1908: Volume I, Old Town (San Diego: The History Company, 1908), 287, hereinafter Smythe, History of San Diego.

35. George P. Tebbetts served as mayor in 1852 and operated a butcher shop in Old Town. See Great Register, 100 and Smythe, History of San Diego, 290.

36. John Compton, born in Waterford, Ireland, became a naturalized citizen in 1856. He worked as a harness maker in Old Town. See Great Register, 12.

37. The members of the coroner’s jury were typical with one rancher, two teamsters, and one farmer (A. Hande could not be identified). They ranged in age from thirty-one to forty-nine. David King, a teamster, served as the jury foreman. See Great Register, 24, 46, 65, and 79.

38. Albert B. Smith, an early settler in San Diego, gained some notoriety by climbing “the Plaza flagpole to shake out the American flag during the United States conquest of California.” See Pourade, The Silver Dons, 255.

39. Whenever a person is accused of a crime a grand jury, “of at least twelve grand jurors” is usually called to hear witnesses testimony. If they find enough evidence they issue an indictment charging the defendant with committing the crime and bind him/her over for trial. See Articles 1530-1566, Digest of the Laws of California (San Francisco: S. D. Valentine and Son, 1857), 287-91. By the early 1880s the information, filed by the district attorney, replaced the indictment as the preferred way to bring the accused into the criminal justice system.

40. The indictment had to specify the city, county, and state in which the crime was committed, mainly to fix the venue. See People v. Wallace 9 Cal 30 (1858); People v. Cox 9 Cal 32 (1858); and People v. Coleman 10 Cal 334 (1858).

41. During the first decade after California became a state, some defendants were released on appeal to the California Supreme Court because the indictments against them were not specific. Therefore, prosecutors and grand juries usually would over-write the charges against the defendant. There was also the tendency to write the document in heavy legal terminology. In a test case in 1858, the California Supreme Court ruled that “it is sufficient if a man of ordinary intelligence can understand from the indictment that . . . a mortal wound was inflicted by the defendant upon the deceased, of which wound he died within a year and a day from its infliction.” See People v. Dolan 9 Cal 576 (1858) and ibid.

42. This passage in Spanish, recorded by the county clerk, indicates that the recorder did not have a command of the Spanish language. It cannot be literally translated; however, it basically means: “I met him [Mendoza] on the road on horseback and he shouted to me, I am not going to pay you one cent until I am paid. I will shout this in the house and in the mountains.”

43. George Allen Pendleton, born in Georgia, Cave J. Couts’ West Point classmate and a lieutenant in the U.S. Army, resigned his commission and served as a clerk of the court for over a decade. See Great Register, 67 and Smythe, History of San Diego, 285-86.

44. The jury seemed fairly representative with three farmers, two ranchers, three merchants, and one baker. One juror T. S. Branne could not be found in the Great Register. It is possible that his name is misspelled. Andrew Cassidy, age thirty-six and from County Cavan, Ireland, operated a tidal gauge for the U.S. Army Engineering Corps. Alfred W. Luckett lived in Green Valley where he operated a store. Thomas Lush (not Lusk) worked as a bartender in San Diego. Heyman Mannasse (not Herman) worked in a store with his uncle Joseph Mannasse. Samuel Warsock (not Wamock) farmed near Ballena. William Wolf farmed near Palomar. See Great Register, 4, 12, 34, 47, 52, 65, and 79; Smythe, History of San Diego, 267; and Pourade, The Silver Dons , 243.

45. Rufus King Porter, born in Massachusetts, practiced farming and lived in San Diego. He served as the jury foreman.

46. Francis Stone, born in Ohio, and employed as a rancher had previously served on the coroner’s jury. It is surprising that the prosecutor and defense counsel did not challenge him during the impanelling. More importantly, the judge should have dismissed him from the jury. It seems logical that he would have been prejudiced, one way or the other, by his coroner’s jury experience. In other words, he knew a great deal about the killing and should not have been placed on the jury. It is possible that Judge Pablo de la Guerra, from Santa Barbara, may not have known that Stone had served on the coroner’s jury. See Great Register, 79.

47. Henry Hailer, born in German, worked as a baker in San Diego. Oddly enough, he was convicted of assault with intent to commit murder several years after the Couts trial. See Great Register, 34.

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Clare V. McKanna, Jr. is the author of Homicide, Race, and Justice in the American West, 1889-1920 (1997) and is currently working on a manuscript discussing ethnicity and homicide in nineteenth-century California. He is a lecturer in the Department of History and the Department of American Indians Studies, San Diego State University.