Thursday, May 16, 2013

The Extortion Trial of 1861, She has been considered light & extravagant: Part 6

This is part 6 of a multi-part story.  For previous entries click on the links:
The Extortion Trial of 1861, Introducing the Shaw Family: Part 1
The Extortion Trial of 1861, Jury Selection & Questions about Ellen Shaw: Part 2
The Extortion Trial of 1861, Sex, Lies & Money: Part 3
The Extortion Trial of 1861,Who Was Dr. Gilbert: Part 4
The Extortion Trial of 1861, Testimony of Capt. Shaw & Questions About His Wife's Character: Part 5

Today's testimony is from the Memphis Daily Appeal August 13, 1861:

Conclusion of the Testimony!

Fourth Day's Proceedings
The trial of Charles N. Martin, charged with extortion by means of threats to take the life of Dr. Samuel Gilbert, was proceeded with before Judge Swayne yesterday morning.

It will be remembered that on Saturday evening the defense declined to bring Mrs. Shaw forward as a witness, and that the prosecution claimed that they were bound to do so by an agreement made withthem, when they consented to permit Mrs. Shaw to be severed from Martin in the trial.

Judge Swayne stated that he had every desire, if consistent with the nature of the case, to exclude the testimony in question, but the character of the prosecutor had been assailed in the testimony, and he thought it must be admitted.

Mr. Yerger contended that the prosecutor was not on trial for a rape, and unless he was in that position, the character of Mrs. Shaw for chastity could have nothing to do with the matter.  It was also pleaded that a woman of infamous character, the commonest prostitute, may be the subject of a rape, and therefore, whatever may be the character of Mrs. Shaw, the present case is not affected by it.  He also objected that the testimony which brought up the question of rape was brought out by the prosecution itself, in the cross-examination of Capt. Shaw.

Mr. Farrington reminded the speaker that the defense brought out testimony that Mrs. Shaw was heard to scream, and that conversation had been heard to the effect that Mrs. Shaw had been insulted.

Attorney-General Eldridge observed that the defense had questioned Dr. Gilbert as to certain delicate matters.

Mr. Yerger went on to show that the defense was that the accused was not guilty of extortion, but that the money offered and given by Dr. Gilbert, was given voluntarily to obtain silence with respect to certain proceedings of his.  The character of the proceedings between Dr. Gilbert and Mrs. Shaw does not effect the result.  Whether Dr. Gilbert offered the money to obtain silence respecting a forcible rape, or respecting an act of adultery in which the woman was a consenting party, as far as the defense on the trial is concerned, it is the same thing.

Mr. Farrington followed, contending that the defense had asked of Dr. Gilbert when under question, if he did not have ulterior intentions, and also that when the witness was on the stand they had not objected to the course of cross-examination taken by the prosecution.

Attorney-General Eldridge said an application had been made by the defense for a severance of the parties indicted, on an affidavit; that affidavit was not forthcoming.  The motion for a severance was heard upon the necessity that existed for having Mrs. Shaw's testimony; if that testimony was not admitted, the testimony of Capt. Shaw ought to be ruled out, and he asked that it should be so.

Mr. Sale admitted that thee was no case on record having precisely the point in question; he argued from analogy.  If it was assumed that violence was offered Mrs. Shaw, because she screamed, it was competent for the prosecution to show that she was of a character not likely to scream on an occasion such as that which is assumed to have existed in the present case.

Mr. Brown said the prosecution had themselves brought out from Capt. Shaw all that the defense wished to show by Mrs. Shaw's defence, and now, from prudential and other reasons, the defense preferred not to call her as a witness, yet the prosecution wished to force them to do so.

The attorney-general denied that any attempt was making to compel the introduction of Mrs. Shaw.

Mr. Brown argued at considerable length that Mrs. Shaw, not being a pasty on the record, or a witness, her character could not be called in question.

The court was of opinion that it was not necessary for the defense to introduce testimony to show evidence, but as they had done so, testimony to rebut the imputation of evidence must be admitted.  The court was reluctant to admit imputation of character, more especially in a collateral way, but the peculiarity of the circumstances made it necessary.  The witness must be called.

J.D. Williams was recalled, having been on the stand on Saturday, on which occasion the kind of testimony attempted to be drawn from him--which was as to the character of Mrs. Shaw--was objected to.  Mr. Williams said: I am acquainted with the character of Mrs. Shaw for virtue and chastity; it is bad.

Cross-Examined by the Defense:  My acquaintance with Mrs. Shaw's character as a notorious woman goes back fifteen years and extends to the present time.  I have known my partner, Mr. Lemmon, to speak of it lately; also Dr. Gilbert--the latter is not the principal source of my information; he has frequently spoken to me of it within the past year, but mostly within the last two years.  I do not remember other persons who have spoken to me on the subject, but her character is generally notorious.

H.C. Dollis:  I know the general reputation of Mrs. Shaw for virtue or chastity as it stood in 1845; it was considered, among the class in which I moved, not so very good.  She was considered as prodigal, and as having injured her character before her marriage.  I could not tell her reputation as to having resided in an improper house in Cincinnati.

Cross-Examined:  I suppose she has been married ten or twelve years; I know nothing of her reputation since, but I have heard it remarked on the streets.  I am acquainted with the general character of Dr. Gilbert for morality, chastity and virtue; he is good at curing old sores and charging mighty high, and I have heard a great many people speak of it in other points--some say he is a good man, some say he is rather handy in that way; I have heard people say he was a mighty nice man and a good doctor; I have heard people talk on both sides.

W.R. Smith: I have lived here twenty-one years; Mrs. Shaw's reputation has not been good; from what I have heard during the last twenty years, it is bad; 1842 was the time I first heard of her; I have heard she  sort of reformed a little while back; I have not heard whether she held on to it; it was said she reformed somewhat, after Capt. Shaw married her; but I do not mean to say she had no bad reputation during that time; I heard she held off a while; since her marriage I have heard people speak of her badly; the general opinion is that she is a woman wanting in virtue; she was not believe to have reformed entirely after her marriage.

W.C. Anderson: I have lived here since 1855; Mrs. Shaw's reputation is bad; Dr. Gilbert's reputation is good; I have never before heard his character questioned; he has been looked upon as a moral and religious man.

W.B. Miller: I have lived here twenty-five years: Dr. Gilbert's character has been good, for morality and chastity; Mrs. Shaw's character I have heard impugned very often.

Jas. M. Flaherty:  Mrs. Shaw's character is rather bad; I know her, she was at my store lately; so was Mr. Martin.

A question was here put by the prosecution to witness, respecting martin having got the blank notes from him?  It was objected by the other side that the question could not be asked, the examination in chief being concluded.  The prosecution said that this, and some other testimony of an important character, had only come to their knowledge since the closing of the examination in chief.  Affidavits were handed the judge in support of the application, and authorities were cited.  The question was laid over and the defense proceeded to cross-examine the witness, who said:

I have heard Mrs. Shaw spoken of lately and years ago; I do not know she ever was married, I suppose she was; I know Dr. Gilbert's character and have heard nothing against it.

S.B. Williamson: Dr. Gilbert's character is good as far as I know for virtue and chastity.
J.N. Moon:  Dr. Gilbert's general character is good for chastity and morality;  I bought two notes of hand from him about the 1st of August; it was nine or ten in the morning.  The transaction took place in Bayliss' office on Madison street; I think he was alone; he had proposed to trade me the paper the day before; he did not say what he was going to do with the money.

F.W. Smith:  Dr. Gilbert has had a good character for morality, chastity and virtue, for twenty years.  Mrs. Shaw's character for chastity is bad.

W.H. Grider:  Mrs. Shaw's character for morality and chastity has been bad for the last eighteen or nineteen years.  Dr. Gilbert's has been good.  I belong to the Methodist Church.

Dr. Shanks:  Dr. Gilbert's character for morality and chastity for twenty years I never heard anything against, and Mrs. Shaw's character for chastity and virtue were bad when she came; she lived a long time with Capt. Shaw without being married; when they were married it was by the influence of the Odd Fellows' society.  I have known little of her for many years; her bad character may have been owing to the circumstances under which she came here and lived with the captain.  I have never heard Dr. Gilbert's character called in question.

Eugene Magveney:  Dr. Gilbert's character for morality and chastity had been good for twenty years.  Mrs. Shaw's, since she came here, has not been very good, owing I suppose to her living with Capt. Shaw without being married.  Since her marriage, I have heard nothing against her, but she has been considered light and extravagant.

B. Graham spoke of Dr. Gilbert's character as good, of Mrs. Shaw's as the reverse.  Mr. Titus asked if a man could be considered to live a good life who lived by humbugging, and made a deal of money by it.  The doctor's moral character stands fair, his success was good at sore shins, but he made a great blow.  Mrs. Shaw was understood to have been a prostitute, and to have had children before her marriage.  Mr. F. Wade state: Dr. Gilbert's character is good; Mr. Connell said the same; Mr. Musso the same, but Mrs. Shaw's not very good.  Mr. Patrick said Dr. Gilbert's character was good; Mrs. Shaw's was not considered good; she lived with Capt. Shaw before her marriage, and had one or two children; he had lived near her twelve years, and heard nothing against her since her marriage.  Esq. Waldran: Dr. Gilbert's character is good, Mrs. Shaw's not good; Mr. Simmons spoke in similar terms, also Mr. Antoine; J.H. Swan never heard a good character of Mrs. Shaw at any time before or since her marriage.  Mr. Bayliss spoke well of Dr. Gilbert.  Mr. Whipple said Mrs. Shaw's character was bad.  Mr. Cleaves spoke of both parties as other witnesses had done; Mr. Green did the same, also Esq. Chase,  who said Dr. Gilbert had worked with him as a tailor; Mr. Ray spoke in similar terms of both; O.C. Jones spoke of Mrs. Shaw as before.

The court then decided that the testimony recently discovered might be introduced, and G.J. Richardson was called:

I was at Capt. Shaw's to tea on the 28th of July; Martin asked me for blank printed notes; he said Capt. Shaw wanted them; he went out with me; we got the blanks at Flaherty's; he got five or six others from em during the week; the kind he got from Mr. Flaherty were of the red kind now shown me.  It might have been three weeks before the 28th that the notes were obtained.

The court adjourned for dinner.

Afternoon Session.
The prosecution announced that they were through, and the defense proceeded to call their rebutting testimony.  Capt. Shaw was again called.  His condition was so weakly that on his reaching the court it became necessary to lay him upon the carpet, and sprinkle cold water upon his face.  On reaching the stand he was asked what were the social relations between his family and that of Dr. Gilbert.  After some objection to the question on the part of the prosecution, Capt. Shaw said:

I have known Dr. Gilbert twenty-two years; in 1845 my wife's sister, Eliza McLean, and Dr. Gilbert's daughter, now Mrs. Kennedy, went to school together; when the weather did not permit her to go home, she came to my house; the families have visited ever since; they have been to my house twice where my folks have been to theirs once; Mrs. Kennedy visited my people when she was last here from New York; I suppose she was then staying at her father's; Mrs. Shaw sometimes visited at Dr. gilbert's, and his family visited us; the doctor and his wife called in June last and staid an hour; Mrs. Shaw's name before marriage was Ellen Jane McLean; she was born in August, 1827; we were married June 11, 1843, on board the steamboat, Gen. Pike, the big Pike, by Dr. Jno A. Hungary, Unitarian preacher of the District of Columbia at ----Ripples, on the Ohio river; I took her to board at Capt. John Rowes of Louisville, where she took music lessons; I had to leaver her there and could not again be with her for a time; I kept the marriage a secret for some time for reasons of my own; we came to live in Memphis in October after; I knew no more about her than I did about your wife, until after I married her; her mother made such a fuss about it that we were married a second time; the marriage certificate of Dr. Hungary was burned up on the steamer White; we were married a second time about the next October, by parson Coons, after my first child was born; Capt Joel Green was captain of the boat I was married on; the second marriage is on register here.

Cross-examined:  The first marriage is the one put down in my family register; the White was burned in 1850, I kept it till then; the Odd Fellows never got after me, my partner told me that something was said in the lodge about my marriage, this was four weeks after my second marriage; the second marriage was in a private house on Main street of Jacob Martin's, now torn down, it was not at my house; I think my wife's mother was with us this time; she thought that a marriage on the river was not good; my oldest living child will be twelve in October; my first child was born March 12, 1844; I had no child by my wife until I married her; when Dr. Gilbert's daughter went to school she staid very often at our house; within the last three years  Mrs. Gilbert has visited us three or four times a year, she has said she visited us oftener than any one else; I never sent my wife to Dr. Gilbert's for money.

A number of letters were shown the witness, all but one of which he recognized as being written by Dr. Gilbert; his council said they were introduced for the purpose of showing the intimacy existing between Dr. Gilbert and Capt. Shaw.  The prosecution said they were dated ten years since, and were merely business letters.  Dr. Keneday is Dr. Gilbert's son-in-law, and one of the letters was signed by him.

Dr Gilbert was recalled:  To the best of my knowledge my family has seldom been at Capt. Shaw's since my return from New York, and then reluctantly.  When the captain was sick he wished my wife and daughter to call and see him; Capt. Shaw's sister-in-law was a good little girl; she and my daughter were fond of each other as school-girls.

Both sides announced that their testimony was now all in, and Gen. Sale proceeded to open the pleadings, which will probably take up the whole of this day.  Messrs. Sale, Farrington and Eldridge, the latter closing the case, speak for the prosecution--Messrs. King, Payne and Yerger for the defense.

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