Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #42
The "Sydney Men"
(Thomas Berdue)
CALIFORNIA
By the Omnibus Bill of 1850, California was admitted into
the Union as a state. Society in this newly organized state was composed of
persons coming from all quarters of the globe, drawn there by the gold
fever. Many were lawless adventurers who gave no end of trouble to the
law-abiding citizens, partly due to the inadequacy of law-enforcement
machinery. Among these elements were some escaped convicts from the penal
colony in Australia, and they came to be feared as the "Sydney men." In the
boom town of San Francisco, the "Sydney men" were the scourge of the city,
committing murders and robberies with apparent impunity. Public opinion
became enraged at the uninterrupted wave of crime. It broke beyond bounds in
February, 1851, when Mr. C. J. Jansen was attacked in his store on the night
of the nineteenth, was mercilessly beaten, and was robbed of approximately
$2,000.
Mr. Jansen was the senior partner in the much respected firm of C. J. Jansen
& Company, dry-goods merchants. As was the custom of many merchants, Mr.
Jansen on the evening in question was working upon his books. He was alone
in the store and was seated at his desk working by the light of a candle,
the sole light in the large room. At about eight o'clock, a bewhiskered man,
wearing a gray coat and broad-brimmed hat, entered the store and started
looking at various piles of merchandise. He then called Mr. Jansen and said
that he desired to purchase some blankets. While these were being shown.,
another man entered and also desired to see blankets. This man was taller
than the first, wore a hat pointed at the crown, and was wrapped up in a
coat. As Mr. Jansen was bending over some blankets, one man cried., "Now,"
whereupon the other struck the merchant, sending him sprawling, and then
beat him nearly to death. Thereupon, the desk was opened and the money
stolen.
Jansen soon recovered sufficiently to crawl to the door and give the alarm.
Theodore Payne, a storekeeper across the street, rushed to the victim's
assistance. The authorities were notified and an immediate search
instituted. The description given by Jansen of the tall robber corresponded
with that of one of the most notorious of the "Sydney men," James Stuart,
who had a striking record for knavery throughout the California mining area.
He was one of those heroic desperados who delighted in his crimes and in
thwarting the law. He was already wanted by the authorities for many crimes,
among them being the cold-blooded murder of Charles Moore, near Foster Bar
in Yuba County. The attack upon Jansen intensified the search for Stuart.
Within twenty-four hours, the police arrested a suspect, and he was
immediately charged with the crime. Another Australian, Robert Windred, was
apprehended as the accomplice. Both men denied having had anything to do
with the attack on Jansen; and the first man arrested swore that he was
Thomas Berdue, an innocent British subject, and that he was not the
notorious James Stuart. This was a common trick among the "Sydney men" and
he was not believed. Both men were taken before Jansen, who was wavering
between life and death, and he identified Berdue as his principal assailant.
When the people heard that James Stuart was in custody, excitement ran high.
The legal machinery had slipped so often and had so frequently permitted the
criminals to escape, as had Stuart on previous occasions, that there arose a
spontaneous insistence that Stuart must not escape punishment.
While the men were being conducted under heavy police guard from Jansen's
residence back to the police station, a large crowd of men tried to seize
the prisoners to hang them at once, but the attempt failed. On Saturday,
February 21, the men were arraigned before Justice Shepherd for examination.
They attempted to establish alibis. The crowd outside the courthouse, now
numbering nearly seven thousand people, was almost frantic at the further
delay and again attempted to seize the prisoners, but the sheriff, assisted
by the Washington Guards, saved them. A meeting was then organized which
appointed a citizens' committee to stay at the jail to make sure that the
prisoners did not escape. Adjournment was then voted until ten o'clock the
following day, Sunday. The crowd quietly dispersed.
On the following morning a throng of eight to ten thousand persons
congregated. The complete lack of confidence in the courts was manifest. The
crowd was determined to see the prisoners punished. Mob violence was feared.
Mr. William T. Coleman addressed the throng and suggested the organization
of a popular court of citizens to try the prisoners at once before they
could escape. This was heartily and boisterously approved. Judge, jury, and
counsel were selected and the trial held during the afternoon and evening in
the recorder's room of the City Hall--but in the absence of the prisoners.
Testimony was heard on both sides. The jury stood nine to three for
conviction and reported a disagreement. The three dissenting jurors had
doubts as to the prisoners' identities. The congregated people were disposed
to lynch the accused just the same, and several attempts to seize them were
made, but wiser counsel prevailed and the prisoners were safely secreted and
detained for action by the regular courts. On several occasions within a few
days, the two accused men had been within a hairbreadth of popular
execution. There was no doubt as to their guilt in the popular mind. Windred
later escaped.
The man who claimed to be Thomas Berdue was regularly indicted under the
name of James Stuart for an assault with intent to kill Mr. Jansen. He was
brought to trial on March 14 in the District Court before Judge Parsons. The
District Attorney, G. K. Platt, and C. M. Brosman appeared for the
prosecution. The prisoner was defended by Messrs. Calhoun Benham and Hall
McAllister. The principal witness for the state was Mr. Jansen, who
positively identified the prisoner as his assailant. An attempt was made to
establish an alibi, but it was not conclusively established. According to
the defense witnesses, the prisoner left a group of friends to go to bed at
just about eight o'clock on the fatal evening. Eight o'clock was the time of
the assault. The jury returned a verdict of guilty, and the prisoner was
sentenced to fourteen years' imprisonment in the state prison. The large
amount of money which had been found upon the accused when arrested was
delivered to Mr. Jansen.
The convicted prisoner was not imprisoned under this sentence, for he was
immediately sent to Marysville, in Yuba County, to stand trial in the
District Court for the murder of Moore. This trial was held from June 28 to
July 4, 1851. There was no question but that the notorious James Stuart had
committed this murder. This was not contested by the defendant. The sole
issue was whether or not the defendant was James Stuart as contended by the
state, or was an entirely distinct and innocent person, Thomas Berdue, as he
claimed to be. An interesting account of the testimony as related by one of
the attorneys appearing in the case is quoted by Mr. Bancroft in his history
of popular tribunals:
Witnesses for the prosecution were generally bold and entirely positive; but the witnesses for the prisoner, with the exception of Judge Stidger and B. F. Washington, appeared to feel uneasy, and often hesitated in their testimony. Some three or four witnesses testified that they had worked with Jim Stuart at Foster Bar, and had known him well before he went there. They had eaten with him at the same table often, and had played cards with him; and one or two testified they had slept with him. They testified that Jim Stuart was of the same height as the prisoner; that he had curly hair, like him; that he was slightly bald on the top of the head, like him; that his actions were like his--the court having made the prisoner stand up several times so that the witnesses could see him better than when sitting; that his voice and accent were the same, being English; that the color of the eyes and hair were the same; and that Jim Stuart had a stiff middle finger on the right hand, and a ring of Indian-ink round one of his fingers, and marks of Indian-ink between each thumb and forefinger; and further, that Jim Stuart had a rather long scar on his right cheek. The jury then examined the hands of the prisoner, and there was found a ring of Indian-ink on one of his fingers, several figures or spots of the same ink between the thumb and forefinger of each hand; and the right middle finger was not stiff, but had had a felon under the nail of the corresponding finger on the other hand, which had given it a short but stubby appearance, heavier at the end than elsewhere, the nail of the finger being broad and thick, and bending inward over the end of the finger. This was startling to the defence, indeed. It remained now to see if the prisoner had a scar on the right side of the face. His face could not be satisfactorily examined, as it was almost completely covered with a short growth of hair. The court ordered the prisoner to be shaved before being brought into court next morning, and on being examined a scar about the length of the one described by the witnesses was found, commencing on the edge of the jaw on the right side and running down the neck. The witnesses now seemed confident, and said that they had no doubt that the prisoner was Jim Stuart. On a cross-examination they said, in a positive and unhesitating manner, that it was not possible that they could be mistaken in their opinion that the prisoner was Jim Stuart. Colonel Prentiss swore positively that the prisoner was Jim Stuart, and that he could not possibly be mistaken. Some four or five witnesses swore positively as to the identity of the prisoner, and that he was Jim Stuart beyond a question; each giving some one or more new reasons for his belief. No witness on the side of the prosecution would admit a probability that he could be mistaken in the prisoner; that he certainly was Jim Stuart! On the side of the defence, Judge Stidger swore positively that the prisoner at the bar was not Jim Stuart; that there was a strong resemblance between Jim Stuart and this man, but that Jim Stuart was at least two inches taller than the prisoner; that their eyes were different in color; that the expression of the eyes of the two men was different; that Jim Stuart was much quicker in his motions than the prisoner; that Jim Stuart's motions were very uncommon, being as quick as those of a wildcat; that he had always head erect, much more so than the prisoner, and that the real Jim Stuart was straighter in his personal formation, and had a different complexion. This witness testified that Jim Stuart was often arraigned before him as a judge at Foster Bar, and that his recollection of him from this and other facts was clear and distinct. Stidger also testified that Jim Stuart had a stiff middle finger, but not such a one as the prisoner had. B. F. Washington, who was at the time recorder of Sacramento City, testified that he knew Jim Stuart from the fact of his being a notorious character in that city, and from the fact that he had often been brought before him on different charges. Mr. Washington said that the prisoner at the bar was not Jim Stuart; that there was some resemblance, but they were to his eye quite different men; that Jim Stuart was an inch and a half or two inches taller than the prisoner. Other witnesses for the defence testified to about the same facts, but they seemed to be uneasy, in some trepidation, and acted in a manner most provoking to the defence. One witness on behalf of the prosecution, a Mr. Thompson, testified that the prisoner, about the date of the alleged murder, came into a camp on Slate Range, in said county of Yuba, on horseback, and seemed to have plenty of money, and was betting with the boys on a string-game which he played very skillfully. That he had a conversation with the prisoner in the jail, and that the prisoner admitted that he was at Slate Range at the time mentioned, but denied that he was Jim Stuart.
After deliberating approximately two days, the jury, on July 4, 1851, returned a verdict of guilty. The prisoner was sentenced to be hanged. Resigned to his fate, after attempting to prove throughout the popular trial and the two regular trials that he was not James Stuart, his money exhausted, and deserted by his friends, the prisoner prepared for the end by communicating his wretched fate to his family. All the while he protested his innocence.
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The popular discontent with the enforcement of law in San
Francisco led, early in June, 1851, to the organization by local business
men of a Vigilance Committee. They often took the law into their own hands
and proceeded forthwith to try persons and execute those who it was thought
merited such punishment. The executions were public and notorious, and were
generally supported by public opinion and the press.
On July 1, 1851, a shack in the outskirts of the city had been robbed. A
party of men were beating the brush in search of the thief. Unexpectedly
they came upon a neatly dressed man who could give no proper account of
himself. Although it did not appear that he had robbed the house, he aroused
the searchers' suspicions and was taken to the rooms of the Vigilance
Committee. The man gave his name as William Stevens and made an excellent
impression upon the Committee by his pleasing personality and apparent
frankness. They proposed to release him, when one of the citizens on guard
duty recognized the prisoner as the much dreaded outlaw, James Stuart. Great
was the delight of the Committee. Within a month of the creation of their
organization, fortune had placed within their grasp one of the worst
desperados of California. Elation did not, however, completely overshadow
the recollection of the man who claimed to be Thomas Berdue, who had been
convicted as Stuart in San Francisco, and who had been sent to Marysville to
be tried for one of Stuart's murders. Letters were at once dispatched to
Marysville with the news of the capture of the real Stuart and with the
request that the outstanding identification witnesses be sent to San
Francisco. The Marysville people were skeptical, but the witnesses were sent
as requested. A number of people were found near by who had known James
Stuart and they now identified him without any hesitation. Mr. Jansen became
convinced of his mistake in identification, though the resemblance between
Berdue and Stuart was said to be close. On July 8, 1851, four days after
Berdue had been sentenced to death, Stuart signed a written confession of
his many crimes, including the assault upon Mr. Jansen. The Vigilance
Committee successfully evaded several writs of habeas corpus which were
issued to force the delivery of Stuart to the regular authorities, and on
July 11, 1851, he was publicly executed in the presence of five hundred
members of the Vigilance Committee and thousands of residents. This was done
with the approval of public opinion and of the leading newspapers.
Upon full proof that James Stuart, the person executed on July 11, was the
true perpetrator of the crimes for which Thomas Berdue had been convicted in
the District Courts of San Francisco and Yuba County, Gov. John McDougal
pardoned Berdue. The members of the San Francisco Vigilance, Committee,
learning that the poor fellow was penniless, collected for him a fund which
amounted to $302. The money which had been taken from him and given to Mr.
Jansen at the time of his arrest, over $1,700, and some gold dust, was
returned by Mr. Jansen, with a liberal gift in addition.
On January 21, 1853, Senator Kurtz of San Diego presented to the Senate of
California the petition of Thomas Berdue for reimbursement of the $4,000
which it was said he had expended in his fight to prove his innocence. The
petition was referred to the Committee on the Judiciary, of which Senator J.
W. Ralston was the chairman. The Committee recommended that the petition be
refused for the following reasons:
To grant the prayer of the petitioner, would establish
a precedent which, if carried out in all cases of the kind, would more than
exhaust the entire revenue of the State. We know of no legislative precedent
for such appropriation. The most that has been done, was to refund fines
illegally collected from innocent parties, leaving them responsible for
their own expenses.
In society it too often happens that the innocent are wrongfully accused of
crime. This is their misfortune, and Government has no power to relieve
them. It is a part of the price each individual may be called on to pay for
the protection which the laws give. He should rejoice that the laws have
afforded that protection to him when wrongfully accused, rather than seek
remuneration for his expenses from the government whose justice has
protected him from ignominious death.
H. H. Bancroft, the historian, comments as follows on this reasoning:
That is to say, stripped of verbiage, to correct the errors of law would cost more than all the expenses of government combined. We have never known a legislature to right a wrong done by the law to a citizen, therefore we will not. Prosecution may be the price of protection; and fortunate is he who is not done to death by laws established to save his life.
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The mistaken, identity in this case almost resulted, as in the Purvis case (p. 210), in an execution of the wrong man. In three separate trials Berdue was convicted of crimes committed by Stuart. That the popular excitement and demand for revenge, aroused by the frustration of justice on so many occasions, was largely responsible for Berdue's convictions is highly probable. It is not an unusual operative element in similar miscarriages of justice. That Berdue came very close to destruction by mob violence is apparent. That the victim of the crime identified Berdue, naturally operated most strongly against him, and his perfectly sound and truthful alibi was disbelieved. The legislative committee's reason for refusing to reimburse Berdue's expenses is an antiquated one and is destitute of foundation, yet it is on occasion heard now. The Vigilance Committee and Mr. Jansen did what they could to restore the money that was taken from Berdue, but his real injury remained irreparable. His public vindication, which is often denied to less fortunate but equally deserving victims of similar error, lay in the fact that the real culprit proved to be so notorious a criminal as Stuart and in the fact that the case became a landmark in the early history of California as a state. An advance in the conception of public obligation in such matters has taken place, as is manifest in the California law, of 1913, which would, had it been in force in 1851, have afforded Berdue a natural opportunity for indemnity and vindication.
BIBLIOGRAPHY
1. Williams, Mary Floyd. History of the San Francisco
Committee of Vigilance of 1851, Vol. XII of the "University of
California Publications in History" (Berkeley, 1921), pp. 170-176, 252-274,
303.
2. Williams, Mary Floyd. Papers of the San Francisco Committee of
Vigilance of 1851, Vol. IV of the "Publications of the Academy of
Pacific Coast History" (Berkeley, 1919).
3. Soulé, Gihon, and Nisbet. The Annals of San Francisco; Containing a
Summary of the History of California and a Complete History of Its Great
City (San Francisco, 1855), pp. 314-320.
4. Bancroft, Hubert Howe. Popular Tribunals (San Francisco, 1890),
I, 179-200.
5. Royce, Josiah. California, from the Conquest in 1846 to the Second
Vigilance Committee in San Francisco (Boston, 1886), pp. 407-417.
6. California Senate Journal of 1853, pp. 67, 68, 116, 192, and appendix
documents 20 and 37.
7. Daily Alta California of San Francisco for February 20-26; March
15-23; July 6-12; August 26, 1851.