Gravesite in Lawrence’s Oak Hill Cemetery might hold clues to the mystery of Crooked Creek
The uneasy 127-year sleep of John Wesley Hillmon is about to be disturbed – again. Assuming, that is, that it’s really Hillmon lying in the remnants of a simple wooden coffin at an unmarked gravesite in Lawrence’s Oak Hill Cemetery.
University of Colorado professors Mimi Wesson and Dennis Van Gerven are planning soon to dig up whatever may be left of the cattle dealer and sometimes ranch hand, who was reportedly accidentally shot by his partner on the trail back in 1879.
Their goal is to answer definitively: Who dwells in Hillmon’s grave?
Though he died in relative obscurity, Hillmon’s demise soon became a frontier cause celÃbre, and today his name is familiar to most law students and legal practitioners.
The epic case of Mutual Life Insurance Co. v. Hillmon – which generated no fewer than six trials and two U.S. Supreme Court rulings over 20 years – gave birth to an enduring piece of federal evidence law.
The problem is, that law might have sprung from fraud by insurance companies to counter what they suspected was an attempt to defraud them regarding the identity of the man who was killed near Medicine Lodge and now rests in a Lawrence graveyard.
“It’s a great historical mystery, a window not only onto the law, but onto life in the frontier in the late 19th century,” said Wesson, a longtime CU law professor.
And, she might have added, a Wild West murder mystery.
John Wesley Hillmon, born in 1848, married the former Sallie E. Quinn on Oct. 3, 1878, in Lawrence. A short time later, he decided to venture west with a companion, John H. Brown.
The pair’s intent was to find and lay claim to some decent cattle ranching land in the Southwest. The two departed in a light wagon, passing through the tiny settlement of Medicine Lodge.
On the night of March 17, 1879, at their campsite along Crooked Creek – now known as Spring Creek – a man was shot and killed.
Brown went into Medicine Lodge to report the incident, saying the dead man was Hillmon.
He readily admitted he had shot his friend in the head accidentally while pulling a rifle off the wagon.
Two inquests were promptly conducted in Barber County. The first was inconclusive, but the second supported Brown’s account.
Hillmon was buried – for the first time.
But because he had died with no fewer than three life insurance policies in his name totaling $25,000, a more than handsome sum at that time, Hillmon was destined to stay buried no more than 10 days.
Insurance fraud was rampant in the 1870s. When Hillmon’s widow sought to collect on the policies, the insurers believed they smelled a rat and refused to pay up.
Then they set out aggressively to expose the suspected ruse.
The Medicine Lodge Cresset reported on April 15, 1879, that “parties were sent to this place to identify the body and take it home.
“And now comes forward divers (sic) and sundry medical experts, versed in the intricacies of insurance swindling, and propose to choke down our throat the monstrous falsehood, that Mrs. Sadie (sic) E. Hillmon and the man John H. Brown are accomplices in a matter of selling human life and blood for money.”
When the body, wearing Hillmon’s clothes and accompanied in the coffin by Hillmon’s journal, arrived back in Lawrence, another inquest was conducted under the direction of the coroner – with a far more agreeable result for the insurance companies.
The coroner later admitted under oath that his and the assistant county attorney’s fees had been paid by the insurance firms.
According to the Lawrence Standard, the verdict stated that the deceased was “unknown to the jury,” and that death came to him – whoever he was – “in a felonious manner at the hands of one J.H. Brown.”
But murder charges were never pursued against Brown.
Finding a missing man
Instead, the insurance companies went into overdrive, trying to select a missing man whose identity they could assign to the cadaver.
After several false starts, they found a candidate: Frederick Adolph Walters, a 24-year-old man who had left his home in Fort Madison, Iowa, in 1878 to seek his fortune.
The insurance companies were aided by several factors.
One is that Walters had, in fact, gone missing.
The second is that Brown, despite first having given an official statement supporting his story of accidentally shooting Hillmon, recanted and gave a sworn affidavit – which he later admitted in a deposition was done with heavy coaching by an agent of one of the companies – “admitting” to conspiring with Sallie Hillmon and others to defraud the companies.
Brown soon retracted his recanting and returned in the first of the six Hillmon trials to his original account.
But his brief departure from the original version would cause lasting problems for Sallie Hillmon’s cause.
Thirdly, and most famously, the insurance companies produced a letter, ostensibly from Walters to his sweetheart, Alvina Kasten.
A key portion of that letter, authored March 1, 1879, and postmarked in Wichita the next day, read as follows:
“I will stay here until the fore part of next week and then will leave here to see part of the country that I never expected to see when I left home, as I am going with a man by the name of Hillmon who expects to start a sheep ranch, and as he has promised me more wages than I could make at anything else, I concluded to take it for a while, at least until I struck something better.”
Kasten proved to be a helpful witness to the insurance companies, identifying photographs of the Medicine Lodge cadaver as Walters.
A transcript of her deposition, recorded in the flowing hand of a court reporter and preserved in the National Archives at Kansas City, Mo., contains this rather skeptical inquiry about her photo identification, posed to Kasten during cross-examination by a lawyer representing Sallie Hillmon:
“Now, don’t you think it is rather an uncertain thing for a person to undertake to swear that they recognize a person who they have not seen for nearly two years, from the photograph of a corpse that had been buried several days, then taken out of the ground and exposed to the air and carried across the country across ninety miles by stage and over 200 miles by railroad in warm weather and then laid about an undertaker’s establishment exposed to the atmosphere for two or three more days, and then buried again, then taken up again, and exposed to the air embracing in all a period of nearly three weeks from the time it was killed, such photograph having been taken at the last time it was taken up, and after all this had transpired, don’t you consider that it is very uncertain whether one can make a recognition from a photograph of such a corpse taken under such circumstances after all the decay that must have followed and the change that must have naturally taken place in a body under such circumstances of a person whom they had not seen for nearly two years?”
After an objection by an insurance company lawyer that runs for about five pages, Kasten was permitted to answer.
“That is rather an uncertain thing,” she conceded, “but still the countenance and general expression of the corpse I cannot help as recognizing as being of Mr. Walters.”
Who’s buried in John Wesley Hillmon’s coffin?
Who really is in the grave, which, according to Oak Hill Cemetery records, is that of John Wesley Hillmon?
The true circumstances of Hillmon’s purported 1879 demise became clouded during a 20-year legal battle in which three companies carrying Hillmon’s life insurance policies fought the claim of Hillmon’s widow. They argued that a man named Frederick Adolph Walters actually was the body in the Hillmon coffin.
University of Colorado professors Mimi Wesson and Dennis Van Gerven will soon file a petition in a Lawrence court that, if granted, should lead to the exhumation of the Hillmon grave in the next few weeks. Van Gerven, an anthropology professor, thinks a firm identification could be made quickly, depending on the condition of the remains.
What the law says
Hearsay evidence – an out-of-court statement presented in court as true – is usually not admissible. But the law permits numerous exceptions.
One enduring and important exception in federal law is known as the “state-of-mind” exception. Permitted under this exception is: “A statement of the declarant’s then-existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health).”
The exception owes its place in the federal rules to the 1892 U.S. Supreme Court decision in Mutual Life Insurance Co. v. Hillmon.
Today the quest of Wesson and Van Gerven challenges that rule’s very roots.
The first two trials to resolve Sallie Hillmon’s suit against the insurance companies for refusing to pay the claims, conducted in 1882 and 1885, resulted in hung juries.
The third trial, in 1888, ended with a verdict returned in favor of Sallie Hillmon.
A key development in that trial was the trial judge’s refusal to allow the Walters letter to be admitted as evidence, blocking it as inadmissible hearsay.
The refusal was immediately appealed to the U.S. Supreme Court, which set aside the verdict and ordered a new trial.
The trial judge, according to the nation’s highest court, erred in not admitting the Walters letter as “competent evidence.”
The letter represented an admissible exception to the rule prohibiting hearsay, the Supreme Court ruled, because it clearly showed the author’s state of mind and intent.
According to the American University Washington College of Law Evidence Project, since the Supreme Court’s ruling in the Hillmon case, it has been settled law that a person’s statement that he intends to do something can be used as evidence that he carried out the stated intentions.
Codified as Rule 803(1)(b) in 1975 within the Federal Rules of Evidence, Wesson said the rule “more than nearly any other rule of evidence, owes its existence to a single decision.”
But Wesson says it may be based on a lie.
It is the insurance companies, she theorizes, that actually conspired to defraud Sallie Hillmon, in an effort to dodge payment on her policies.
The “Walters letter,” she believes, is a fake.
Enter the stranger
John H. Brown’s first account of the death at Crooked Creek placed just two men at the scene – him and Hillmon.
But Brown’s second version, in the affidavit “prepared and urged” on him by the insurance companies, said three people were actually present. The third man, according to his affidavit, was a stranger he and Hillmon encountered “on this trip out from Wichita, about two and one half miles from town. Who Hillmon invited to get in and ride.”
Brown’s affidavit stated that the man called himself “Berkly, Burgis, or something like that” and that “we always called him Joe.”
It was this “Joe” whom Brown later claimed was murdered – by Hillmon – as part of a conspiracy involving Hillmon, his wife and Sallie Hillmon’s cousin, Levi Baldwin, to fraudulently collect on the $25,000 in death benefits.
The insurance companies then built a case that “Joe” was actually Walters – traveling under an alias – and that Brown’s tale of picking up a stranger who then turned up dead was consistent with the plans Walters outlined in the letter.
Wesson, however, finds several problems with this scenario.
One is that Brown’s affidavit – which he would completely recant in favor of his original story in time for the first Hillmon trial – spoke of their party being joined by “Joe” after leaving Wichita, headed west.
How then, Wesson asks, would “Joe” have managed to write to his sweetheart about meeting Hillmon while westward-bound a number of miles west of Wichita and mail a letter that recounted such a meeting in Wichita?
More dramatically damaging to the insurance companies’ story line was the surprise testimony of Henry Simmons, a Leavenworth cigar factory owner.
After the verdict favoring Sallie Hillmon was reversed by the U.S. Supreme Court, for reasons that included the trial judge’s exclusion of the “Walters letter,” the fourth and fifth trials both ended in hung juries.
The sixth and final trial in 1899 marked the first time a jury heard from Simmons, appearing as a witness for Sallie Hillmon.
“He testified,” said Wesson, “that two months after the death at Crooked Creek, he had employed Frederick Walters in his factory to make cigars.”
Simmons even produced employment records corroborating his claim.
Van Gerven, the CU anthropologist who will supervise the exhumation of the Hillmon grave, thinks the insurance companies attempted a fraud of their own to combat what they perceived to be a fraud against them.
“I believe the insurance companies, while they were doing it illegally and immorally, believe they were doing the right thing,” said Van Gerven.
“They believed they were being screwed. This kind of fraud was rampant, and I think the insurance companies made up their minds that they were going to make an example out of this one.”
The final trial ended in November 1899 with a verdict in Sallie Hillmon’s favor.
But, again, the verdict was appealed to the U.S. Supreme Court, and once more the verdict was reversed – on grounds unrelated to the admissibility of the “Walters letter.”
The New York Life Insurance Co. had settled with Sallie Hillmon’s lawyers before the sixth trial, and the Mutual Life Insurance Co. of New York paid off in July 1900 on the $22,068 judgment against it from the sixth trial.
But the third policy holder, the Connecticut Mutual Life Insurance Co., appealed the sixth trial verdict to the Supreme Court. There, the verdict favoring Sallie Hillmon was reversed yet again.
There would be no seventh trial. Connecticut Mutual elected, finally, to also settle with Sallie Hillmon.
The records of Oak Hill Cemetery in Lawrence state that the body occupying Grave 555 in Section 4 is that of Hillmon.
But Wesson doesn’t believe the insurance companies ever abandoned their conviction that it is Walters – and not Hillmon – in the ground.
“They didn’t admit, explicitly or implicitly, that the insurance claim was valid, or that the body was Hillmon,” said Wesson.
“The whole generation of lawyers and managers of the insurance companies had changed from the beginning to end,” said Wesson. “And, finally, some newer people came in and said, ‘This is insane. We have spent three or four times as much as the face value of this policy defending this claim. Let’s just pay and move on.'”
Safe for business
The legal battle had been waged for 20 years, Wesson believes, as a test case through which the companies hoped to show that fraud perpetrated by wily frontiersmen – and women – would not be permitted to impede the growth of business.
The insurance companies were so determined to make the American West safe for business, she is convinced, that they committed fraud of their own. And she believes the resulting federal evidence law is saddled with an exception to the hearsay rule based on that fraud.
“I hope and believe that if we’re able to confirm that this body belongs to Hillmon, the courts and legislatures responsible for creating and amending the law of evidence may re-examine the state-of-mind exception with a new eye, an eye less enchanted by the story of an insurance fraud foiled that has always propped up the rule,” she said.
The legal rule is particularly worth re-examination, Wesson contends, because of the shaky premise it advances – that what a person says they’re going to do is what necessarily occurs.
“On the contrary,” Wesson contends, “it would seem to be easier to lie about one’s intentions than about nearly anything else, since the likelihood of being caught out in a lie is small.
“Any discovery of later acts incompatible with the expressed intention can always be explained by the simple phrase, ‘I changed my mind.'”
Paul Bergman, who teaches evidence at the University of California at Los Angeles School of Law, was intrigued to hear of the planned exhumation.
But, he said, “I hope they don’t solve it – only because it’s sort of fun leaving students with this being an open-ended mystery.”
At the same time, he predicted that a firm determination of the corpse’s identity won’t matter to the law.
“The (state-of-mind hearsay exception) principle has been established and has carried through,” he said. “Whoever it is under there won’t have any effect on the legal system.”