Among causes célèbres the Hillmon case is unique; it was not a criminal case and no famous or notorious persons were involved. Murder may —or may not—have been clone, but there was no murder trial. It was only a young woman’s suit against three life insurance companies, the question being whether she was or was not a widow. Yet it was a political and legal storm center for nearly a quarter of a century, from before the assassination of Garfield until after the assassination of McKinley. It coincided with the rise of the Grangers and the Populists and the coming of the trust busters; and for all of them it was a ready-made and graphic story of the constant struggle of the little people against the forces of big business.
The case began in 1878, at Lawrence, Kansas. John W. Hillmon, aged thirty-three, was a roving cattle herder without visible property or means, currently resident in Lawrence. His most valuable asset was the friendship of Levi Baldwin, who was known in Lawrence as a cattleman with money. In the fall of 1878, Hillmon cemented this friendship by marrying Baldwin’s cousin Sallie Quinn, a pleasant and popular waitress. Bride and groom set up light housekeeping in a room in a lodging house, while Hillmon planned how he might improve his fortune and give Sallie the good things she no doubt deserved. Baldwin let it be known that he would help his old friend and new cousin acquire a stock ranch in the Southwest, if Hillmon could find one. Unfortunately, the Southwest was still prey to Indians, wild animals, and other dangers that a loving bridegroom might want to avoid.
Baldwin advised that before Hillmon set out to seek a suitable ranch he insure his life against these dangers. If this would not save Hillmon’s scalp it would at least protect his wife. Baldwin introduced Hillmon to the proper insurance agents, and Hillmon applied for and received policies for $10,000 each from the New York Life Insurance Company and from the Mutual Life Insurance Company of New York. Then, in December, 1878, he left for the Southwest in the sole company of a coadventurer, John H. Brown of Wyanclotte, Kansas. They took the Atchison, Topeka & Santa Fe to Wichita, where they hired a wagon and horses. Hillmon returned to Lawrence for a few days in January and in February. While there, lie again saw the insurance agents and obtained a third policy—this one for $5,000—from the Connecticut Mutual Life Insurance Company. On the urging of one of the agents, and after some protest, Hillmon allowed himself to be vaccinated against smallpox on February 20. This kept him in Lawrence for a few more days; but about the first of March he went back to Wichita, where he again met Brown, and the two of them headed into the south-Kansas country.
On March 17—St. Patrick’s Day—1879, at a campnre on Crooked Creek near Medicine Lodge, Hillmon was accidentally shot and killed. Or so it was claimed. The three insurance companies, which owed his widow $25,000 if it were so, were doubtful that the dead man at the campnre was Hillmon. They knew of two or three Kansans who had recently tried to fake death for the insurance money that was in it.
In 1879 Medicine Lodge had not yet become famous as the home of Carry Nation, “The Smasher,” or of “Sockless” Jerry Simpson, the Populist leader; but the editor of its new weekly paper, being of a literary and sardonic turn of mind, had made a somewhat lasting commentary on the time and the place by naming his paper the Medicine Lodge Cresset , after the cressets of oil which, according to Milton, were used to light the palaces of hell. The cynicism of that christening was shared by the insurance companies whenever they received an unusual claim from Kansas country.
Sallie Hillmon and Cousin Lcvi Baldwin insisted that the body was Hillmon’s. There was only one actual witness to the truth—Brown—and he told two contradictory stories. After about a year of fruitless negotiation, Sallie Hillmon filed suit for her money. In the next twenty-three years the case was tried six times, before six different juries, and went twice to the United States Supreme Court. For three quarters of a century it has been a “leading case” in the law of evidence.
What aroused the suspicions of the insurance companies from the first was the fact that Baldwin and Hillmon had themselves sought out agents and asked for the policies, whereas all good prospects were expected to wait for agents to seek them out. Later investigations revealed that Levi Baldwin, the reputed cattleman with money, was in fact bankrupt, or at least very hard-pressed by his creditors. One of them he had told—in March, 1879, before Hillmon’s death was reported—that he and Hillmon “had a scheme under ‘brogue’ and that if it worked out all right he was all right.” After Hillmon’s death was reported, Baldwin put oft another creditor by saying that he had arranged to get $10,000 of Hillmon’s life insurance. Worst of all (or, from their point of view, best), the insurance investigators learned that in the summer or fall of 1878, before Hillmon applied for his insurance, Baldwin had allegedly had an odd conversation with a doctor. He wanted to know how long it would take a dead body to decompose after it was buried; and then he had archly asked if it would not be “a good scheme to get insured for all you can, and get someone to represent you as dead, and then skip out for Africa or some other damn place?” All that might have been in jest, but subsequent events aroused a natural suspicion that it was in earnest.
We can be certain of very few of the facts in the case, but it is at least safe to say that Hillmon and Brown had no adequate conception of the litigation they were starting when they left Lawrence in December, 1878. Hillmon might have had some foreknowledge of his coming fame, because for the first time in his life he began a diary. (Cynical people believed he wrote the diary just for the purpose of having it planted on “his” dead body, where of course it was found.) It wasn’t a very great diary. Despite the fact that he and Brown were going, so they said, to look for a stock ranch, there was not much in the diary about that. The entries chiefly described the weather and the country.
January 6 … This kind of weather will make one almost curse camp life, and himself for being so silly as to start on a trip of this kind during the winter months. … The sun goes down tonight dark with snow and wind. I think it has been as blustery an afternoon as I have ever witnessed. This kind of weather is what will condemn this part of the country for stock. It will be almost impossible to save near all of the stock .…
February 8 … I think I have never did as hard work in my life as I have done in the past six weeks. It is killing me almost by inches to loaf around and do nothing as I have been doing of late. …
February 23 [back home in Lawrence] … Don’t see as thereis any good to grow out of me trying to keep track of my misdeeds, while I am apt to err as any one. And that I would be sure ashamed not to make a memorandum of, and only show up the best parts as others have done before me. …
That was the last entry in the diary when it was found in the dead man’s clothing at Crooked Creek. Hilhnon and Brown had made camp there on the evening of March 16. The nearest farmer, about three quarters of a mile away, called on them the next morning. In the afternoon, according to Brown, the two spent some time shooting. About sundown, Brown said later, he went to put the gun in the wagon and somehow caught the hammer of the gun and discharged it. Hillmon, standing by the campfire some twelve feet away, was hit in the back of the head and killed. Brown seized him by the arms and swung him away from the fire, but could not save his life or prevent his face from being singed by the flames. Brown’s actions then were all very prompt and correct. He immediately went for the farmer who had called on them, and next morning Brown and the farmer went for a justice of the peace, George Washington Paddock. An inquest was held on the spot. Then they took the body to Medicine Lodge, the nearest burying ground, where another inquest was held. Brown wrote the widow a proper letter and gave it to Paddock to send to her:
Medicine Lodge, March 19, 1879
Mrs. S. E. Hillmon:
I am sorry to state the news that I have to state to you. John was shot and killed accidentally by a gun as I went to take it out [ sic ] of the wagon, about 15 miles north of this place. I had him dressed in his best clothes, and buried in Medicine Lodge graveyard. I shall wait here until Mr. Paddock hears from you. If you will leave me to take charge of the team, 1 will dispose of them to the best advantage, and take the proceeds, and when I come back to Lawrence I will relate the sad news to you. Probably you have heard of it before you get this letter.
Yours truly,
JOHN H. BROWN
Levi Baldwin came to Medicine Lodge at once, without Sallie, and he and Brown neatly fenced the grave. Then three men came from Lawrence to view the corpse for the insurance companies. They insisted that the body be disinterred, and that being done, they promptly declared that it was not Hillmon. Because of this dispute the body was sent to an undertaker in Lawrence, where it was finally seen by the “widow,” minutely examined by physicians, and elaborately photographed.
A third and much more formal inquest was held. Brown, Baldwin, Sallie, and about a dozen others identified the body as Hillmon’s. Honest persons at Medicine Lodge and elsewhere who had seen Brown and Hillmon on their trip said the body was Hillmon’s, or at least that of the man they had seen with Brown. But the insurance companies produced two or three dozen persons who had known Hillmon at Lawrence or other places, who said the body was not his. The undisputed facts were that the corpse was wearing HiIlmon’s clothes except for his hat, which had been burned, and his shoes, which were somehow lost. The corpse measured (he feet eleven inches; the face was marred by burns, but a perfect set of teeth was preserved, and there was a vaccination scab on the arm. The measurement corresponded with Hillmon’s height as stated on the insurance policies, but an insurance doctor and some other witnesses swore that Hillmon was actually only five feet nine. (The insurance doctor said he had forgotten to report the shorter measurement to the company until the dispute arose.) There was medical testimony to the effect that Hillmon’s vaccination in Lawrence in February would not have left a scab like the one on the body; but the effect of this was undoubtedly lost on the jury because one of the insurance doctors had carefully removed the scab from the body and never returned it. There was a nose scar that some said they remembered on Hillmon; but there was no sign of other scars and marks that Hillmon was said to have had. In particular there was much testimony that Hillmon had been missing a tooth. Sallic denied that; she said her husband’s teetli were perfect, like those in the dead body. Sallic was not very good at descriptions. Before the body had arrived at Lawrence the insurance men had tried to get her to describe her husband, but she would say only that he had more hair than her questioner, who was bald. The insurance witnesses, on the other hand, were precise in their recollections of Hillmon’s physical peculiarities—considerably more precise, indeed, than they were when cross-examined about the equally obvious peculiarities of other locally well-known persons.
With some of this evidence before them and the insurance lawyers in back of them, the inquest jury brought in a finding that the body was that of an unknown man feloniously shot by John H. Brown. The effect of this verdict on Brown was impressive. Hc went for help to his father, who lived in Wyandotte, and wrote another letter to the “widow”:
Mirs Hillmon i would like to now where Johny is and How that business is and what i shall doe if any thing. Let me now threw my Father.
JOHN H. BROWN
His father sent him to a locally influential lawyerpolitician named Buchan—the Honorable State Senator W. J. Buchan. Jn the many trials of the case the insurance lawyers liked to refer to Buchan as Brown’s “own attorney”; but what pay Buchan received—some Sfioo or §700—tame from the insurance companies. The court of appeals called his conduct “unprofessional,” but he seems to have thought of himself as an arbitrator. In any event, after discussing Brown’s difficulty with him and his father, Buchan went to see the agents of the insurance companies; returned; discussed the situation again with Brown; and then someone—allegedly Brown—concluded that Brown should turn state’s evidence, and that Buchan should arrange a deal with the insurance companies. Brown would make a complete confession and get Mrs. Hillmon to surrender the policies, while the insurance companies would take no steps to prosecute the Hillmons, Baldwin, or Brown. Buchan prepared the “confession” in the form of an affidavit:
… Along about the ioth day of December, 1878, John W. Hillmon, Levi Baldwin, and myself talked about and entered into a conspiracy to defraud the New York Life Insurance Company and the Mutual Life, of New York, out of some money to be obtained by means of effecting a policy or policies on the life of said John W. Hillmon. Baldwin was to furnish the money to pay the premiums .… Hillmon and myself were to go off southwest from Wichita, Kansas, ostensibly to locate a stock ranch, but in fact to in some way find a subject to pass off as the body of John W. Hillmon, for the purpose of obtaining the insurance money aforesaid. We had no definite plan of getting the subject. …
[On the 5th of March] we left [Wichita] on our second trip. … We overtook a stranger on this trip, the first day out from Wichita, about two or two and one half miles from town, who Hillmon invited to get in and ride, and who he (Hillmon) proposed to hire to herd and work for him on the ranch as proposed to be located. This man was with us during all this trip. Hillmon proposed to me that the man would do to pass off for him. I contended with him that the man would not do to pass off for him … and I protested, and said that was going beyond what we had agreed, and something I had never before thought of, and was beyond my grit entirely. But Hillmon seemed to get more deeply determined.… Pains were taken not to have more than two of us seen together in the wagon.… Hillmon kept at the man until he let him vaccinate him, which he did, taking his pocket knife and using virus from his own arm for the purpose. He also traded clothes with him.… This man appeared to be a stranger in the country, a sort of an easy-go-long fellow, not suspicious or very attentive to anything. His arm became very sore, and he got quite stupid and dull. He said his name was either Berkley or Burgess, or something sounding like that. We always called him Joe. He said he had been around Fort Scott awhile, and also had worked about Wellington or Arkansas City. I do not know where he was from, nor where his home or friends were. I did not see him at Wichita that I know of. I had but very little to say to the man, and less to do with him. … I frequently remonstrated with Hillmon, and tried to deter him from carrying out his intentions of killing the man.
The next evening after we got to the camp last named [on Crooked Creek], the man Joe was sitting by the fire. I was at the hind end of the wagon, either putting feed in the box for the horses or taking a sack of corn out, when I heard a gun go off. I looked around, and saw the man was shot, and Hillmon was pulling him away around to keep him out of the fire. Hillmon changed a daybook from his own coat to Joe’s, and said to me everything was all right, and that I need not be afraid. … He told me to get a pony … and get some one to come up. He took Joe’s valise, and started north. … I have never heard a word from him since.…
I make the above statements in the Hillmon case as the full and true facts in the case, regretting the part I have taken in the affair.
Brown executed and swore to this affidavit on the fourth of September, 1879. At the same time he gave Buchan written authority “to make arrangements, if he can, with the insurance companies for a settlement of the Hillmon case, by them stopping all pursuit and prosecution of myself and John W. Hillmon, if suit for money is stopped and policies surrendered to companies.”
Then began a period of correspondence and visits between Brown and Sallie Hillmon. He first had a midnight rendezvous with her at Baldwin’s house, told her what he had done, and got her to meet Buchan. She did so on several occasions—and once stayed at Buchan’s home at Wyandotte for three weeks. She was always in need of funds, and did not hesitate to ask him for train tickets or money that she could not get from Baldwin. In September she wrote Buchan from Ottawa, Kansas, that:
… it will never do for you to come to my sisters. I will tell you the reason when I see you.… I will be obleged to ask you to send me enough to bye my Ticket to your city. … I did write that letter to Riggs & Borgholthaus [her attorneys] have got no answer and don’t want any.
I will be on the Wendsday’s Train without something offle happens.
In September, 1880, Sallie gave Buchan a full “release” of all her interest in the insurance policies; but she did not have the policies themselves. They were in the hands of Baldwin’s lawyer, who refused to give them up, saying he had a lien on them for $10,000. Buchan showed her Brown’s statement and the agreement of the companies not to prosecute him; but then, somehow—perhaps at her insistence—Brown’s statement got torn up and dropped into a stove. (Later, when negotiations with her finally broke off, it was remembered that the stove was unlighted, and the pieces of the statement were fished out and preserved.)
The situation grew more and more puzzling. Despite all her friendly visits with Buchan, Sallie evidently never made any statements of fact that were inconsistent with her previous claims, or contrary to any of her testimony in the case. If she had, Buchan was not the man to have kept it secret. Indeed, it may be just as likely that Sallie was playing a game with Buchan as that he was spinning a web for her. The fact is that Buchan got no further results. The policies were not surrendered. Sallie’s “release” had no legal effect. Only Brown’s statement, rescued from the fireless stove, took its place among the mass of evidence served up to six juries. But soon after Sallie filed her suit and it became clear that he was in no real danger of criminal prosecution, Brown—can it surprise you?—repudiated his “confession” and reverted to his original story. With not unreasonable caution, Sallie’s lawyers took Brown’s deposition before the case came on for trial, and had him repeat his original story of how he had accidentally shot Hillmon. The insurance lawyers cross-examined him for nineteen days, but they were unable to get him back to the tale he had told in his written “confession.”
Up to this point the insurance companies’ conclusion that there had been a conspiracy was based on their own natural suspicions, the odd remarks of Levi Baldwin, and the written “confession” of Brown. As late as the summer of 1879 they thought the body was that of one Frank Nichols. who had disaooeared from Wichita; but he turned up. Then perseverance and luck brought them evidence concerning another person whose description might fit the dead body.
In Fort Madison, Iowa, there lived the parents, the sisters, and the sweetheart of a young German named Frederick Adolph Walters. Fred had left that town to seek his fortune about a year before the occurrence on Crooked Creek. During this year he had wandered around Missouri, Iowa, Nebraska, and Kansas, spending time in various towns, including Wichita. On the first of March, 1879, a few days before Hillmon and Brown left on their final trip, Walters wrote his sister a letter from Wichita:
I in my usual style, will drop you a few lines to let you know that I intend leaving Wichita on or about March 5th, with a certain Mr. Hillmon, a sheep trader, for Colorado, and parts unknown to me.…
At about the same time he wrote his sweetheart, Alvina Kasten, a longer letter dated March 1, 1879:
Dearest Alvina:
… I will stay here until the fore part of next week, and then will leave here to see part of the country which 1 never expected to see when I left home, as I am going with a man by the name of Hillmon, who intends to start a sheep ranch, and as he promised me more wages than I could make at anything else, I concluded to take it for a while, at least until 1 struck something better. There is so many folks in this country that have got the Leadville [mining] fever, and if I would not have got the situation that I have now, I would of went there myself; but as it is at present, I will get to see the best part of Kansas, Indian Territory, Colorado and New Mexico. The route that we intend to take would cost a man to travel from $150 to $300, but it will not cost me a cent; besides I get good wages. I will drop you a letter occasionally until I get settled down, then I want you to answer it (you bet, honey).
Thereafter time passed without further letters to sweetheart, sister, or family, though previously Fred Walters’ letters in “usual style” had been steady and regular. When his new silence extended into weeks and months, the family became alarmed and began to make inquiries. The inquiries eventually came to Lawrence, and from there someone sent the family photographs of the controversial dead body. These they immediately declared to be pictures of the missing Walters. There was even a mole on the back of the dead body in just the place where the new witnesses swore Walters had had a mole. To be sure, his sister said that he had had a scar on his ankle, received from a dog bite when he was twelve years old; the doctors’ minute examination of the dead body in Lawrence had revealed no ankle scars, but the scar might have disappeared over the years.
The Hillmon case was now popularly reduced to a single question: Was the dead body Hillmon or Walters? There were several difficulties with the Walters theory. All the testimony identifying the body as Walters was based on photographs of a weeks-old corpse with a burned face. Apart from such identification there was nothing to connect Walters with Hillmon and Brown except the letters to his girl friend and his sister. No one was ever produced who had seen Walters with Hillmon or Brown, or who had seen Walters near Crooked Creek or Medicine Lodge. And if Brown’s “confession” is referred to, there is nothing in it that is completely consistent with the Walters letters. If Hillmon hired Walters in Wichita, either he did not tell Brown about it or Brown’s “confession” was not forthright. The name “Berkley or Burgess” which Brown cited in his statement is certainly not “Walters”; “Joe” is not a likely nickname for “Frederick Adolph”; and the travels that Brown ascribed to Joe do not correspond with the known travels of Walters.
So the letters from Wichita were the only real support of the Walters theory. Their genuineness was not questioned, and the inferences drawn from them seemed inescapable in the light of Walters’ complete disappearance. Sallie’s attorneys tried to destroy the effect of the letters in two ways—factually (by pointing out to the jurors that Hillmon was a very common name in Kansas and that the letters did not say “John Hillmon”) and legally (by objecting that the letters were “hearsay” and as such inadmissible in evidence).
For at least two centuries the rule against hearsay has been one of the foundation stones of the law of evidence. Indeed, about the time of the Hillmon case, an Alabama court declared that this rule had been one of the rights guaranteed to Englishmen by the Magna Charta. This was more than a slight historical error, but it showed the reverence that courts and lawyers have had for the rule. Chancellor James Kent, the author of America’s first great law book, gave this reason for the rule against hearsay:
A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.
Popular faith in the cross-questioning of witnesses was expressed by the commercial Mr. Moulder, in Anthony Trollope’s Orley Farm: “It is the fairest thing that is. It’s the bulwark of the British Constitution. Trial by jury is, and how can you have trial by jury if the witnesses are not to be cross-questioned?”
There are and always have been exceptions to the hearsay rule, to allow for statements made by one who cannot be in court for questioning but who is nonetheless presumed to have told the truth—deathbed statements, or routine business entries, or confessions of something which it would be to his interest not to confess. But Walters’ letters were not his dying declarations, though his doom may already have been sealed when he wrote them; they were not confessions or admissions of anything that Walters could have been expected to want to conceal. The insurance lawyers argued that the letters were a kind of business entry; but a man’s business ought not to include his love letters.
The legal question was not resolved for twelve years. At the first trial, in 1882, the letters were admitted in evidence, despite objection; but the jury disagreed seven to five, and no verdict resulted. So the case was retried in 1885, with the same result, except that the division in the jury was six to six. On the third trial, in 1888, Judge O. P. Shiras refused to admit the letters in evidence, and then the jury brought in a full verdict for Sallie Hillmon for the amount of the policies plus accumulated interest. The defendants appealed to the United States Supreme Court; and the Kansas state superintendent of insurance (who had been of counsel for the insurance companies in the second trial) included in his annual report a full account of the evidence in the case, reporting that which had been admitted by the court and some which had not, and adding comments of his own, mostly favorable to the companies. (This report, as republished in The Principles of Judicial Proof by the late, great writer on the law of evidence John Henry Wigmore, is the principal authority for many of the statements in the present account.)
In the first hearing before the Supreme Court, in 1892, the insurance-company attorneys apparently presented no sound theory by which the Walters letters could have been held admissible, and we are told that the point was “miserably argued.” Nevertheless, the Supreme Court justices voted unanimously to decide in favor of the insurance companies on general principles, thus reversing the lower-court findings and clearing the way for a new trial.
The preparation of the Supreme Court’s opinion was assigned to Justice Horace Gray, who could be relied upon to find a precedent for the decision if anyone could do so. He was the most learned and resourceful member of the court—a Harvard graduate, a former chief justice of Massachusetts, an heir to wealth, and a thorough Bostonian. Typically, his opinions were larded with judicial citations and legal principles. Yet we are reliably told that even he was in “dense darkness” about how to justify the admission of Walters’ letters, until a suggestion came from his young legal secretary’s father, James Bradley Thayer, professor of evidence at the Harvard Law School. Together Justice Gray and Thayer brought forth a new legal theory and adorned it with their authority. A man’s intention, they said—whenever that intention is a distinct and material fact in a chain of circumstances—may be proved by his own contemporaneous oral or written declarations. For truly, how better can we find out what a man thinks than by what he does or says at the time? And was not Walters’ intention to leave Wichita with Hillmon the sheep trader a distinct and material fact in the chain of circumstances that may have led him to Crooked Creek? To be sure, as the professor knew, no court would have allowed Walters’ letter to be admitted in evidence if he had written his sweetheart, saying, “I have left Wichita with Hillmon the sheep trader.” Such a letter would indisputably have been hearsay. But the learned professor suggested that there was a logical difference between a hearsay account of a past fact and Walters’ personal expression of his then present intent; the Supreme Court agreed.
Justice Gray’s opinion (Insurance Company v. Hillmon, 145 U.S. 285) is famous among lawyers. Generations of them have debated whether such a distinction between a past fact and a present intention is sound or unsound. Forty years later, Justice Benjamin Cardozo, speaking for the Supreme Court in Franklin Roosevelt’s day, said the decision in the Hillmon case “marks the high water line beyond which courts have been unwilling to go.”
But the legal points of the decision were lost on the Kansas public of the nineties. To them the real question was one of motive: Who was being made the victim of conspiracy—the insurance companies or the Kansas widow? These were the years of full flood for the People’s party in Kansas and the Midwest. One Mary “Yellin” Lease rode all over the middle border, telling the farmers that “Wall Street owns the country” and urging them to “raise less corn and more hell.” At their first national convention—in Omaha on the Fourth of July, 1892—the Populists declared:
We meet in the midst of a nation brought to the verge of moral, political and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress and touches even the ermine of the bench. … From the same prolific womb of governmental injustice we breed the two great classes—tramps and millionaires.
To those Kansans who followed the Populists, the Hillmon case was a heroic contest between the wealth of Wall Street and a poor, defenseless widow of Kansas whose cause involved the very good name of the state itself. They had no more faith in the motives and ways of the insurance companies than the companies had in Hillrnon. Wealth had paid the doctors to lose Hillmon’s vaccination scab; wealth had paid Euchan to extort a false confession from Brown and to deceive Sallie; and in everything the hand of wealth and influence was fashioning a crown of thorns and a cross of gold for one poor, weak, bereaved woman. When the insurance companies persuaded one of Hillmon’s old girl friends and his sister and brother-in-law to take the witness stand to testify that Hillmon had a blackened or missing front tooth and not, like the corpse, a perfect set of teeth, those with Populist leanings called the brother-in-law a wretch and the girl friend a spiteful old maid, and accused the insurance companies of buying their false testimony.
Sallie’s lawyers scorned the defense’s accusations. “Such a conspiracy as the defense alleges must [if true] result in lasting separation from his young wife —the blighting of both their lives forever—her lifelong misery and his eternal damnation.” If, they said, the arguments of the insurance lawyers were to be believed, “Hillmon must have been a marvelous man. One of a party of three, traveling through a settled country, camping out, and stopping at houses, he succeeded in concealing one of the party through the entire journey from Wichita to Medicine Lodge. Not only that, but he vaccinated him, made it work, kept the protesting Brown at bay, and succeeds in his conspiracy.” Finally—and mark you—“These insurance companies with boundless wealth and inexhaustible resources at their command, with agents scattered the world over, with … years to operate in, have failed to find Hillmon.… With all their money and all their power they have never been able to find a vestige of Hillmon.”
Defending themselves against this sort of attack, the insurance companies at first hinted that Hillmon’s whereabouts were known to the authorities, and that it would be only a matter of time before he would be produced. When time passed and he was not brought forth, they pictured him as a “typical Western bravo,” and it was “surmised that the detectives are more afraid of him than desirous of getting the reward for his capture.” But no one ever found Hillmon.
Walters never showed up either; but Sallie’s lawyers had no difficulty in explaining that they never had the money and the resources to search for him .
Between 1892 and 1897 two more trials were held (the fourth and fifth of the series) and two more juries disagreed. In 1897, when the Populists were in control of the Kansas state administration, Sallie’s lawyers took a new tack; and Webb McNall, as superintendent of insurance, denied Mutual Life a license to continue to do business in Kansas, because “I am satisfied that your company has not dealt fairly with the plaintiff, Mrs. Sallie E. Hillmon, in refusing to pay the death loss and in the litigation of the same pertaining to her deceased husband.” When this came to the attention of federal judge John A. Williams, who had presided at the fifth trial, he promptly had a federal grand jury bring in an indictment against the superintendent of insurance for interference with the rights of litigants in his court, and on the petition of the insurance company he issued a mandatory injunction against both the superintendent and the attorney general of Kansas, enjoining them from interfering in the insurance company’s transaction of business in Kansas. Apparently no one actually went to prison, but the insurance companies continued in business. By this time New York Life had thought it wise to settle with Sallie Hillmon, but the other two, Mutual Life and Connecticut Mutual, continued to contest the case.
The sixth trial began in October, 1899. In the course of it the trial judge surprised the defense by ruling that Brown’s “confession” of conspiracy against the insurance companies, and Baldwin’s conspiratorial remarks about Hillmon, dead bodies, and insurance, were not proper evidence against Sallie since she was not charged with being a party to the conspiracy. This ruling so weakened the case for the insurance companies that the jury brought in a verdict for the plaintiff. Mutual Life then gave up the battle and paid; but Connecticut Mutual made 108 assignments of error and appealed. The circuit court of appeals affirmed the trial court, but on further appeal the Supreme Court, in 1903, again reversed the judgment and ordered a new trial.
The opinion was written by Justice Henry Billings Brown of Michigan. He had had the misfortune of losing the sight of one eye shortly after he was appointed to the court in 1890, but with his good eye he had no trouble seeing that the “widow” stood to benefit from the conspiracy whether she was a party to it or not, and in his view the whole case was simply one of “graveyard insurance.” (Even the annual premiums of $600 for the life insurance were more than Hillmon had ever earned in a year.) This time, however, the court was not unanimous. Two of the justices dissented—Justice (later Chief Justice) Edward White of Louisiana and Justice David Brewer of Kansas, who had himself presided at the second trial and was presumably more intimately familiar with the case than any of the justices. They wrote no dissenting opinion, but perhaps they agreed with the words of the circuit judge, Amos M. Thayer:
This case has been pending… for more than 21 years, and it would be a matter of great regret, and a reproach to our method of administering justice if, after six laborious and lengthy trials, an error had crept into die record of such consequence as to require reversal.
In any event, a seventh trial was then too much to contemplate even for the parties themselves; and a settlement with the last of the insurance companies was finally reached. (Counting accumulated interest, the “widow” eventually received a total of $35,700 from the three companies.) She had been for some years happily remarried, with no apparent apprehensions of bigamy; and whether or not her sang-froid was justified, it would not be too long before a future Chief Justice of the United States, Charles Evans Hughes, would gain first fame by his investigation of New York life insurance scandals.
The truth in the Hillmon case is as debatable today as it was when it began. Some twenty years after the last court decision the dean of Kansas journalists, T. A. McNeal, in a book of reminiscences, When Kansas Was Young , would express the novel opinion that Hillmon did conspire to defraud the insurance companies, but that something went wrong and he was really killed at Crooked Creek. McNeal is entitled to respect because he began his newspaper career on the Medicine Lodge Cresset in the spring of 1879, just after the first inquest; and if in the next fifty years or so either Hillmon or Walters had ever been heard from, McNeal would have reported it. However, his little book does not reveal how or why he came to his odd conclusion.
You now have all the facts and theories that are known; perhaps the best way to conclude is with the words with which Justice Brewer, a son, grandson, and nephew of clergymen, concluded his charge to the jury in the second trial:
Consider all the facts in the case. Fear not. Be just; and may that infinite Being, who from His unseen throne in the center of this mystic universe, who sees and knows the very fact, help you to be strong and guide you to truth.