Grand Jury Indictment
August 1885 saw the threat of legal action renewed in the Luffsey murder case when District Judge William Francis, opening court for the first time in Mandan, also convened a grand jury. By August 20 talk on the streets of both Mandan and Bismarck was of an indictment, although the jury's report was not released for some time.
The Marquis was in New York City when word of the indictment reached him. Though he took the news philosophically, some press reports suggest he suspected blackmail by his enemies who hoped to see him "lie in jail three or four months before my case could be tried." His answer, now as before, was that "he had no money for blackmail but thousands to spend in his defense." By August 31 he was back in Mandan where he appeared for arraignment with Eldridge Paddock, who had also been included in the grand jury indictment.
The Marquis's Bismarck attorney, Frank B. Allen, had already been retained as counsel. Allen was an old friend from the Marquis's earliest days on the Little Missouri and, in fact, had handled the legal details involved in scripping the Medora townsite as well as incorporating the meatpacking company.
Change of Venue
Allen’s first move was to apply for a change of venue to Bismarck, a few miles east on the opposite side of the Missouri River. The petition listed the Marquis’ reasons he did not believe he could get a fair and impartial trial in the Second Judicial sub-Division. He stated that the lawless element residing in the Badlands were averse to the establishment of business by a titled foreigner, the Irish element in Mandan were in sympathy with Luffsey who was of Irish extraction, and the idea that he was a man of means who should be indicted in order that he might be compelled to pay tribute to obtain justice. As a result of this petition, a change of venue was granted, despite strong opposition by Theodore K. Long, the prosecuting attorney. The judge then placed the Marquis and Paddock without bail in the custody of the Burleigh County Sheriff.
Editors across the territory were soon commenting on the situation. Because of the controversy which surrounded his decision, Judge Francis felt compelled to make a public statement which would clearly state his position.
This is not a question between Mandan and Bismarck, although in the arguments of counsel, it drifted in that direction. It is not a question of the representative heights of morality reached by Mandan and Bismarck, but it is a simple question – shall these defendants have a change of venue which they asked for? All that is necessary is to satisfy the court that these defendants could not have a fair and impartial trial in this subdivision, or that there is a reason to believe such to be the case. These affidavits, as well as other reasons coming within the general knowledge of the court since this term began, I am satisfied that this prayer – for that is what it is- should be granted.
On the morning of September 2 the gavel of Judge Francis came down upon his large oak desk, calling district court into session before a large and curious crowd. District Attorney Long of Mandan moved that the case be set for trial on September 10, since a number of his important witnesses were a long distance from the city. Judge Francis granted the motion and the Marquis was returned to his cell in the county jail.
During the ten days between the opening of the court session and the beginning of the trial, the Marquis conducted his business operations from the Burleigh County jail, where his friend Sheriff McKenzie made him feel at home. He seemed to pay little attention to the legal proceedings as he caught up on his correspondence and chatted with frequent visitors, including Theodore Roosevelt.
The trial began at Bismarck on September 12, 1885, with the Honorable William H. Francis presiding as judge, T. K. Long, of Mandan, district attorney, prosecuting, and Allen & Allen, Bismarck, defending.
The morning of the opening of the trial in the new Court House at Bismarck, the tenseness of the situation was easily discernible. Partisan feeling was running high even in Burleigh County. The court room was crowded beyond capacity with the friends and followers of the Marquis, and friends and supporters of law and order. It was a most unusual gathering, and, as it now appears, a historic one. Stockmen from the Bad Lands, arrayed in the garb of the cowmen, with six-shooters strapped about their waists, sat on one side of the court room, and their countenances evidenced a grim determination to see that justice was done and that law must take its course. On the other side sat the servants and friends of the Marquis similarly garbed and similarly armed. To a keen observer the difference in the two factions was easily detected. Unfortunately for the good name of the Marquis, many of those numbered that day among his followers were renegades of the west, and outlaws of the Bad Lands. Outside of the clink of guns and the jingle of spurs as the men shifted about taking their seats in the court room, there was no disturbance and, on the surface, at least, all was set for a fair and impartial trial.
When Judge Francis entered the court room and took his seat on the bench, all eyes centered on the court, and a perceptible silence spread through the court room. When the judge quietly announced that the clerk would call a jury in the case of the Territory of Dakota against Antoine de Vallombrosa, Marquis de Mores, the audience received its first thrill of the famous trial. The Marquis and the attorneys entered the room, and instantly the court room was agog. The Marquis, dressed with his customary meticulous care, presented a stately appearance. His entire bearing indicated annoyance that such a proceeding had been launched against a gentleman of his standing. As he was seated behind his attorneys the Marquis presented, indeed, the appearance of a gentleman of rank, and his presence alone seemed commanding.
Early in the trial Judge Francis was severely criticized by attorney Long, and the relations between the court and the prosecutor became very strained. Long was jailed for contempt, and the judge, evidently relenting somewhat, imposed a fine of $250, which was paid by a check drawn by Long on the Northern Pacific Bank of Mandan. There is no doubt that T. K. Long, coming from "west of the river, was as bitter and as prejudiced as some other good citizens had been in that territory. It is equally true and apparent from the proceedings that Judge Francis was much more prejudiced in favor of the defendant than an impartial trial judge should have been. Unfortunately there are no stenographic notes of the evidence adduced at the trial, and although Frank Allen read his speech to the jury, even this speech is not now part of the court records. From lawyers who attended the trial, however, a partial synopsis of the evidence can be given.
The Marquis testified in his own behalf substantially as the altercation took place, although he never admitted that it was he who fired the fatal shot which resulted in Luffsey's death. He justified, however, his actions as the necessary defense of himself and property. Upon cross examination he admitted having killed two men before, but stated that both had been his challengers in duels fought in France. This admission instead of prejudicing his case, won him much favor, for the West in those days liked dash and daring. The Marquis this time related his dealings with Henry Gorringe over the lands at the Little Missouri crossing:
[He] was attracted to the Little Missouri country because we considered it an available point for marketing cattle; met some parties in new York who claimed to have an interest in the land about Little Missouri. These parties were Commodore Gorringe and Frank Moore. These men attempted to swindle him, claiming to hold options on the lands; they wanted to sell him their option for $25,000; upon his arrival he found that the country was not surveyed, and that these men had no title whatever to the lands and if he had paid them he would have been “out.”
While there was no proof offered that in the shooting up of Medora, Luffsey and his party were in any way attempting to do personal harm to the Marquis, and further there was no proof at the beginning of the engagement with the Marquis they intended anything further than to scare de Mores. As the shooting progressed, however, they no doubt acted with more serious intentions.
For a period of more than a week the trial continued, with each side presenting evidence favorable to its cause and evidence to weaken that submitted by the opposition. The climax came on September 19th. The jury, after having deliberated several hours, indicated to the bailiff that they had agreed upon a verdict. The judge immediately notified counsel on both sides. Word was soon passed around Bismarck that the jury had agreed, and the court house was soon filled to capacity. There was very little change in the complexion of the crowd from its appearance on the first day, except that perhaps a number of the "curious" had supplanted the space occupied during the trial by partisans, and except that the appearance of the gathering was more serious, more alert, and somewhat more nervous than it had been on the previous days. The Marquis and his attorneys now occupied their accustomed seats at the counsel table. If there had been any change in the thoughts of the Marquis, since the trial began, or if the ordeal of the trial had in any way affected him, it was by no means apparent. He sat erect, with military bearing, his dark eyes casting occasional glances at the judge and in the direction of the jury room.
Presently the jury entered and took their seats in the box, and the foreman presented the verdict to the court. The court handed the verdict to the clerk to read, and as the clerk arose and unfolded the verdict, a sudden stillness swept over the court room. Every face in the crowd involuntarily moved forward, every ear was tuned to receive the words of the clerk, and many sat with parched mouths, the suspense and the occasion evidently affecting them.
As the clerk slowly read the verdict: "We, the jury, find the defendant not guilty," a mighty shout went up from the supporters of the Marquis, and it was with much difficulty that the judge was able to restore order. At the request of District Attorney Long, the jury was polled, each man answering that the verdict as read was his verdict.
The Marquise pleaded with her husband to be allowed to attend the trial, but the proud Marquis could not countenance the thought of having her subjected to the ordeal of the trial, nor would he permit her fair name to be brought into the proceedings; more than that, he was determined that the rare grace and beauty of the Marquise should in no way be permitted to contribute in the slightest degree to a favorable verdict in his behalf.
The explanation made by the defense, while not a complete vindication of the Marquis, evidently convinced the jury, under the very favorable instruction given by the Court, for their verdict (was the verdict of every man on the jury.)
After the jury retired for deliberation, so sure was the Marquis of his acquittal that he wired to his foreman at the plant at Medora the following message:
"Will be back tomorrow—killing will be resumed."
While the message seems somewhat indefinite as to what the killing would consist of, the Marquis intended it to mean that killing of cattle at the plant would be resumed, and not that he intended to lay the foundation for any further murder trials.
While the Marquis gained his liberty, the verdict did by no means mend the feeling against him in the Medora country. The seeds of bitterness had been sown, to last for a generation, and even to this day men can be found who will on the one hand rush to his defense or on the other hand condemn him to the extreme.
The judicial examination and subsequent trial of the Marquis de Mores for the crime of murdering William Riley Luffsey, variously described as a cowboy or a hunter, near the town of Little Missouri, Dakota Territory, in June 1883, covered a period of nearly twenty-seven months. During much of that time it was a cause célèbre and was the source of considerable journalistic speculation, largely because the colorful and unpredictable Marquis made good newspaper copy.
Even so, the lengthy time between the original crime and the final judicial resolution of the case has raised questions about whether the young Frenchman was accorded the quick and timely trial traditionally required under America's system of justice. The truth is, however, that de Mores, along with several colleagues and employees, was subjected to the full spectrum of judicial scrutiny available under the codes of Dakota Territory, including two preliminary examinations, investigation by a grand jury, and finally a full-scale homicide trial.
Reading 4 was excerpted from Frank E. Vyzralek, “Frontier Justice in Dakota Territory: the Marquis de Mores-Riley Luffsey Murder Case, 1883-1885.” Virginia Heidenreich-Barber, ed. Aristocracy on the Western Frontier: The Legacy of the Marquis de Mores. Bismarck: State Historical Society of North Dakota, 1994. D. Jerome Tweton, The Marquis de Mores: Dakota Capitalist, French Nationalist. Fargo: North Dakota Institute for Regional Studies, 1972. Usher L Burdick, Marquis de Mores at War in the Badlands. Fairfield, Washington: Ye Galleon Press, 1929.
Questions for Reading 4
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