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.
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.
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.
A. B. Smith38
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.
his mark X
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
T. S. Branne
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.
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.
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.
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.