ARTICLES TAKEN FROM THE MARION DAILY STAR, MARION, OHIO
IN RELATION TO THE MURDER OF GEORGE MILLER BY JERRY
(JEREMIAH) SIMMS (SIMS) AUGUST 28, 1903 AT DECLIFF, OHIO.
ARTICLES RELATING TO THE TRAIL OF JERRY SIMMS, MARCH 7, 1904
THROUGH MARCH 12, 1904.
FRIDAY, AUGUST 28, 1903
GEORGE MILLER TWICE SHOT BY JERRY SIMMS
OLD FEUD CULMINATED IN WHAT IS PROBABLY A FATAL SHOOTING
AFFAIR AT DECLIFF TODAY NOON - ONE BULLET ENTERS MILLER'S
RIGHT SHOULDER, THE OTHER HIS LEFT BREAST NEAR HEART.
LARUE, O., Aug 28 - (Special) - George W. Miller, a prominent farmer and a trustee of Montgomery township, was shot and perhaps fatally wounded by Jerry Sims, a resident of DeCliff just before noon today, the shooting occurring in the store of Byron Sorden of DeCliff.
Simms used a thirty-eight calibre revolver and, firing two shots into Miller's body, fled from the scene of the crime and from the town.
It appears that the shooting was the result of a feud of long standing between the men, who met in the Sorden store a half hour before the shooting.
According to the story of witnesses, Miller, who resides about half way between this place and DeCliff, arrived in DeCliff by train and going to the store, encountered Simms. the men talked very quietly for about a half hour. Simms left the store, but returned soon after with a revolver. Without any warning whatever, he began shooting at his victim, one bullet striking Miller in the right shoulder and a second entering his chest near the heart.
Mr. Sorden, the proprietor of the store and a witness to the shooting, had a small child in his arms, and before he could dispose of the child and offer any interference, the shooting was over and Simms left the room.
Mr. Miller was taken from behind the counter, where he had fallen and carried to the home of Mr. Sorden, where he was given prompt surgical assistance by physicians who where hastily called.
The Marshall of this place was promptly notified of the shooting and started after Simms at once, after notifying Sheriff Sells, at Marion, that he would look after the case.
Mr. Miller is a widower, aged about fifty-five years and is the father of ten children, nine sons and one daughter, some of the children being quite small. One son, Eugene, is employed in the works of the Marion Steam Shovel Company.
Simms is about the same age as his victim and also had a large family. He resides in DeCliff, and is a man of all work.
Drs. Sifritt and Hesser of LaRue and Burnsides of Scott Town, who are in attendance upon Miller, state that he will probably not live but a shot time, the
wound near the heart being regarded necessarily fatal.
A posse is now searching the vicinity of DeCliff endeavoring to locate Simms.
According to information at hand this is the second serious trouble in which Simms has been involved. He is said to have struck a Mr. Stayner on the head with a spade, several years ago, inflicting injuries from which Stayner never recovered and which, it is said, resulted in his death.
SATURDAY, AUGUST 29, 1903
George W. Miller, who was shot twice by Jerry Simms at DeCliff, Friday noon died as a result of his injuries at the home of Byron Sorden, at DeCliff, at 5:40 o'clock Friday evening.
The ten children of the unfortunate man were summoned immediately after the shooting, and when nine of the grief stricken children reached the bedside of their father, the scene was pathetic in the extreme. The oldest son was the only one failing to reach DeCliff before his father's death.
The remains were removed to the late home of the deceased, about half way between DeCliff and LaRue, at 8 o'clock in the evening.
The funeral services will be held at 10 o'clock, Sunday, at the Free Baptist Church in LaRue, and will be conducted by Rev. J. A. Sutton.
George W. Miller was about fifty-five years of age and had been a resident of the vicinity in which his death occurred all his life. He was a successful
farmer and enjoyed the respect and confidence of the community in which he resided. He filled many positions of responsibility, and at the time of his death was a trustee of Montgomery township.
The news of the shooting and his death, heralded from home to home throughout the western part of the county, was received with sincere grief and the home of the deceased was the point of gathering of many sympathizing friends, eager to assist and console the bereft children of the unfortunate father.
Mrs. Miller died about two years ago, and since that time the father with the assistance of his oldest daughter, had managed to preserve the broken family circle
MR. MILLER MAKES AN ANTE-MORTEM STATEMENT
TELLS OF VISITS TO SIMMS HOME DETAILS OF FRIDAY'S SHOOTING.
Prosecutor Fred E. Guthery was at the Sorden home, Friday afternoon, a short time before the death of Mr. Miller. He found Miller perfectly conscious, and took his ante-mortem statement in regard to the shooting and the circumstances leading up to it.
Miller said that he had been a visitor at the Simms home, going there on
the invitation of Mrs. Simms. Simms had heard of the visit and finding him at the store where the shooting occurred, called him into a back room, where Simms stated that Miller must make the matter right with him, adding that he did had not care how often Miller called on Mrs. Simms, but he must make it right with him, intimating that he must give him money.
Simms left the store, and Miller saw him go to his home, then stepped to the telephone, which he was using when, turning around, he confronted Simms entering with a drawn revolver. Miller dropped the telephone receiver and, grappling with Simms, told him he must not shoot him. After a short struggle, the shooting followed.
The prosecutor feels sure that Simms will be captured soon, but it is quite likely that unless his arrest is announced quickly, the county commissioners will offer a reward for his capture.
JERRY SIMMS YET REMAINS AT LIBERTY
Jerry Simms, the murderer of Mr. Miller, was overtaken by two members of a pose in search of him, at a point on the farm of John Clements, about two miles north of Scott Town, about the time the remains of his victim were being removed to the home of the deceased.
It appears that the men approached a well on the farm and, while discussing the direction to be taken, Simms boldly approached the well and, securing a drink of water, walked away without interference. The men stated later that they were intimidated by the fact that Simms had a weapon, and for that reason made no effort to place him under arrest.
Leaving the well, Simms went in a northerly direction, and although the alarm was given at once, the other members of the pose failed to overtake him.
It is related by residents of DeCliff that, immediately after the shooting, Simms, who was dressed in his working clothes and wore no coat, went directly home, where he changed clothing, putting on his best, and made his departure into the country. All were afraid to interfere with him because of his well known disposition and the fact he was armed.
Sheriff Sells and Chief Cornwell of this city went over to DeCliff, Friday evening, and joined in the search for the man, but nothing further is known of his whereabouts but what is contained in the report of the two men who encountered him.
MONDAY, AUGUST 31, 1903
Some are inclined to believe that he has taken his life. An old acquaintance of the murderer is of the opinion that he may put up a hot fight when found.
Jerry Simms, the murderer of George W. Miller, at DeCliff, is still at large and the authorities still have no clew as to his whereabouts.
Deputy Sheriff Sells and his brother Benjamin Sells, searched what is known as the big woods at Wild Cat, Sunday, but found no trace of the fugitive.
Deputy Sheriff Sells is positive that Simms will not be found in that locality.
The people in the vicinity are very reticent and refuse to talk about the murderer. They are in a state of much excitement. The relatives of the fugitive have been seen, but profess to know nothing of him.
As yet the county commissioners have offered no reward for his capture. Prosecuting Attorney Guthery is said to be opposed to such a move. He believes that Simms will be captured without a reward being offered.
Dr. W.H.Sager, who had known Simms for the last ten years, "says that Simms is a desperate man, and he fears that blood will be shed before he is taken.
"If Simms takes a notion that he won't be captured, "says the Doctor, "he will kill every man in sight as long as he has ammunition. On the other hand, if he takes a notion that he will be taken, a ten year old boy could get him. He's a peculiar man."
Some are inclined to think, that when Simms is found, it will be his body, holding to the theory of suicide. The authorities doubt this however. They believe he is being sheltered by some of his relatives in this county.
WEDNESDAY, DECEMBER 9, 1903
Mr. Eugene Miller and Miss Carrie L. Stoddard were united in marriage last Sunday evening at 6 o'clock by Rev. J. A. Sutton. Mr. Miller, who lives a few miles north of town (LaRue, Ohio), is the son of George Miller, who was shot by Jerry Simms a short time ago, and is administrator of his father's estate.
SATURDAY, DECEMBER 12, 1903
Jerry Simms, who shoot and killed George Miller, at DeCliff last August is a prisoner at the county jail, having appeared at the jail and gave himself into the custody of the sheriff about 4:20 o'clock this morning.
About the hour mentioned, the sheriff was called to the front door by a vigorous rapping, and was surprised, to say the least, when the caller announced that he was Jerry Simms, and desired to be taken into custody.
The Sheriff has been following various clews all over the country, hoping to apprehend Simms, and has been sending out pictures of the man that were given into his hands as a likeness of Simms, but the Sheriff having no personal acquaintance with him failed to recognize the man by the picture.
Simms was given quarters in the jail and, although not disposed to be too talkative, made a frank statement to the Star in an interview this morning, as to where he has been since the shooting. He stated that, immediately after the shooting, he walked to Upper Sandusky, where he took a train for Chicago, and from there he went to Kansas. Having relatives and friends in the West, he carefully avoided the vicinity in which they reside. After working for a time in Kansas, he went to Oklahoma, and later worked in Missouri and Iowa.
Simms states that he is well satisfied that he could have remained out of custody for years, but, after thinking matters over, he decided to return and stand trial for the charge against him. He also states that he heard nothing from his family while he was gone and they heard nothing from him. As time passed, he became very anxious to see his children, but he thought it best not to stop at DeCliff on his way to Marion, regardless of the fact that the temptation was strong.
Simms came east on a passenger train as far as Bellefontaine, but missing his train while he took luncheon there, he thought it best not to linger along the road and came to Marion on a freight.
Simms states further that he is ready for trail at any time, and expressed confidence that he will be cleared when all the facts are known. He is apparently in the best of health and spirits but the tears glistened in his eyes when he talked of his children and he is expecting them at the jail with much anxiety.
A reward of $250 was offered by the county commissioners for the arrest of Simms.
MONDAY, MARCH 7, 1904
Jerry Simms, who has been a prisoner at the county jail for the past three months, was called to trail in the court of common pleas, this morning, on a charge of murder in the first degree. A special venire was drawn sometime ago and was expected to furnish a jury for the trial. But few of those included in the special venire were absent when the case was called, and the work of securing a jury was entered upon at once.
Attorneys Mouser and Quiqley were present to look after the interests of the defendant, while Prosecutor Fred E. Guthery was assisted by William E. Scofield in the prosecution.
At noon, but a half dozen jurymen had been secured and all where subject to peremptory challenges in reserve by the defendant.
About 150 witnesses have been called to give testimony in the case of which number more than an hundred will appear on the side of the defense. It is presumed by those associated with the case that the trial will occupy four or five days.
As to the history of the case, it will be remembered that Simms was indicted on three counts for the shooting and killing of George W. Miller, at DeCliff August 28, 1903.
At the time of the shooting, it was announced that the killing was the result of a feud of long-standing, and the trial promised to produce a number of sensational features.
The shooting occurred in the store of Byron Sorden at DeCliff, Simms using a thirty-eight calibre revolver from which, it is alleged he fired two shots, one striking Miller in the right shoulder beneath the collar bone and the second striking him in the left side. Miller was carried into the home of Sorden, where he died at 5:30 o'clock in the evening, the shooting occurring just before noon.
Immediately after the killing, Simms according to his own story, made his way on foot to Upper Sandusky, carefully avoiding the searching parties looking for him and there took a train for Chicago, eventually finding a refuge in western states and territories.
As the Christmas season approached, filled with a desire to see his children, Simms returned to Marion and gave himself up to answer to the indictments, which had been returned against him by a grand jury in session a short time after the shooting occurred.
Simms has been in jail since that time, the charge against him not admitting to bail.
Much interest was shown in his appearance for trial, this morning, and the court room was filled with spectators.
At two o'clock, this afternoon, the venire of forty-two possible jurymen was exhausted with but eleven jurymen selected, and they all are subject to peremptory challenge.
Court was adjourned until 9 o'clock Tuesday morning, to give the sheriff and clerk an opportunity to draw another special venire and issue the necessary summons. Tuesday will probably be given chiefly to the selection of a jury and the taking of evidence may not begin until Wednesday morning.
TUESDAY, MARCH 8, 1904
The Trial of the State of Ohio against Jerry Simms, charged with the murder of George W. Miller, was resumed, this morning, at 8:30 o'clock, the special venire drawn, Monday afternoon, responding to the summons issued by the Officers of the Court.
The first hour was given to the impaneling of the jury, the state using but one peremptory challenge and the defense but two.
The jury is as follows: David Frank, William Bolander Jr., Everett Brewer, Ambrose Baldwin, Joseph Long, John Coffey, Martin Dudley, Sidney Baker, D.A.Black, William Bean, Levi Roseberry and C.M. Stockwell.
Immediately after the filling of the jury bonds, the state presented its indictment of the defendant and Attorney Grant E. Mouser, representing the interests of the defendant, gave a statement of what the defense expected to produce in evidence.
All the seats in the court-room and much of the apace reserved for the court officers were crowded with spectators, the crowd being drawn largely from DeCliff and the neighborhood in which the killing for which Jerry Simms is being tried, occurred.
The statements concluded and the formalities observed, the court granted a brief recess, after which the taking of evidence was begun by the calling of Byron Sorden, in whose store at DeCliff the tragedy occurred.
Considerable interest centered in the testimony of Mr. Sorden, because of the fact that the shooting had occurred in his business place and he was accredited with having seen all of the immediate preliminaries leading up to the killing, of which he was a witness.
Mr. Sorden, in the course of his statements, related the circumstances of the appearance of the parties to the tragedy in his store and told of a short controversy in a back room of the store between Simms and Miller. What was said by the men Sorden did not hear but the shooting occurred a few minutes later, and Sorden asserted that Miller made little or no defense of his person from the assault, which resulted in his death. Sorden also related the circumstances of the removal of Miller to the Sorden home, where he died a few hours later. At this pint, the court announced an adjournment for dinner.
Mrs. Simms, who the defense charges with being to a certain extent the cause of the trouble, was not present in the courtroom during the morning, but many members of the Simms and Miller families were in attendance to give evidence or to witness the proceedings.
AFTERNOON SESSION
Promptly at 1 o'clock, this afternoon, court convened and the examination of Mr. Sorden was resumed, the attorneys for the defense taking the witness.
The courtroom, which was well filled with spectators during the morning, was packed when the trial was resumed.
On cross-examination, Mr. Sorden testified in a general way as to the interest he had taken in the case and to having made a survey of the locality in which the tragedy occurred for the prosecuting attorney. He further testified to the arrival of Miller about 8:30 o'clock in the morning of the shooting, that Simms came to the store room after and remained about thirty minutes. During this time, Simms and Miller had a private conversation and then Simms returned to his home.
A few minutes later the witness saw Simms enter the store and draw a revolver, Miller was sitting on the arm of a chair and as Simms reached him Miller grabbed the right hand of Simms. During the scuffle ensuing a shot was fired and witness had an impression, from the position of the pistol and the smoke that Miller had been shot in the face. the struggle continued and another shot was fired. Sorden testified that he had a small child in his arms at the time of the shooting and made no effort to take a part in the affair until after Miller had fallen. He then picked up a fork and prepared for his own defense, but Simms did not offer him harm.
Witness denied telling that he was present when the shots were fired. At this point, under pressure, Sorden stated that he had, himself, been arrested for adultery with another man's wife, but the court forbade an answer as to whether he had not been shot by the aggrieved husband.
After this break in the story of the shooting, the witness testified as to the conversation Miller had had with Mrs. Simms over the telephone just prior to the shooting. Sorden was then dismissed with a few questions of minor importance and W. F. Dutton, a resident of Agosta, was placed on the stand.
Mr. Dutton is agent of the Chicago and Erie Company at DeCliff and gave testimony as to a conversation he had with Simms about three days before the killing. Witness stated that he on that occasion had taken an option on Simms' property and Simms had related his story of domestic troubles. Simms told witness of watching his wife at night and finding her at the barn under suspicious circumstances with George Miller. Simms also told witness that he had on one occasion caught Miller and taken him to his house, where he confronted his wife with accusations of wrong doing.
Dutton also stated that on the morning of the shooting and immediately after it, Simms came to the telegraphy office and asked him to telegraphy the sheriff to come and get him, as he had fixed or tried to fix George Miller; he had shot him. Simms was very much excited and came to the office on a "dog trot."
It was also brought out in Mr. Dutton's evidence that Simms wished to sell his property and leave the country, giving the impression that his desire to leave was prompted by the conduct of Mrs. Simms.
WEDNESDAY, MARCH 9, 1904
Court was late in convening this morning and it was almost 9 o'clock before the trial of the case of the State of Ohio against Jerry Simms was resumed.
When the Jurors took their places in the box, there was but a sprinkling of spectators about the courtroom, most of them being intimate friends of the parties to the tragedy, anxious to follow the testimony adduced in every detail.
The morning being bright and the weather most inviting, it had its effect on the attendance from the country, and as the forenoon passed, new faces from DeCliff and the vicinity were added to the audience until the courtroom was comfortably filled.
While the testimony of tuesday much of which was not of the most refined character, was being taken the presence of the three children of tender years children of the prisoner at the bar attracted general attention. One of the first acts of the officials of the court, this morning, was to see to the removal of the little people.
The first witness called was A.J.Ducat, a resident of DeCliff, who testified to an intimate acquaintance with George W. Miller, who was killed by Simms.
Ducat said he called on Miller soon after the shooting at the Sorden home, Miller gave the witness a review of the happenings of the past few days and especially what had transpired in the back room of the store just before the shooting. Witness said Miller told him that Simms demanded a settlement and that Miller thought the matter had been settled at the time Simms caught him with Mrs. Simms, when, by threatening their lives, both were forced to an exhibition of illicit relations in his presents. Miller said to the witness that after this exhibition, all parties shook hands and declared that in the future the matter was never to be mentioned, and Simms was to leave the country and never return.
According to the story of the witness, Miller said that Simms, meeting him at the store, did not demand any specified amount of money. Miller also said he had never been in trouble before, and he would not have gone to the Sims home had he not been invited there. He told Simms this and that he supposed the matter was settled, whereupon Simms left the store only to return a short time after and the shooting followed.
William Hickman another resident of DeCliff was called. Hickman is a brother-in-law of Simms and, immediately after the shooting, Simms sent his revolver by his daughter, Inez, to Hickman's home. A few minutes later and while the weapon was lying on the table, Simms walked into the house and secured it, leaving soon after, witness had a conversation with Simms the day before the shooting and had warned him to watch Miller after Simms had told him of catching Miller, and Mrs. Simms under suspicious circumstances.
Mrs. Rachael Hickman, a sister of Mrs. Simms was the next witness called and after some immaterial statements as to acquaintanceship and relationship, related the story of the coming and going of Simms at her home on the day of the shooting and how Simms stated that he had been tormented all summer by Miller and had shot him. Mrs. Hickman said that she "used to be a sister of Mrs.Simms," and manifested a disposition to be hostile to the defense on cross-examination.
After a recess of ten minutes, Prosecutor Fred E. Guthery was called to the witness stand.
The prosecutor detailed how he was called to the Sorden home at DeCliff August 28, 1903, by the announcement that Miller had been shot by Simms.
Arriving at the Sorden home he found Miller in a dying condition and fully cognizant of what was passing in the room and able to identify clearly those about him.
The prosecutor had the doctor present inform him of the fact that he must die and stated his intention to secure Miller's version of the circumstances of the shooting. Miller said he was aware that he would not live until midnight and possible not until dark.
Miller detailed the story of how Simms had caught him with Mrs. Simms and had forced him to have unlawful relations with her in his presence. He also told the prosecutor of the meeting of himself and Simms in the back room of Sorden's Store, and that when Simms asked for a settlement he thought that the matter was settled. Simms, thereupon, left in an angry mood, Miller seated himself on the arm of a chair in the main part of the store. A few minutes later Miller saw Simms coming with a revolver, in his hand. As Simms approached in a menacing manner Miller grabbed his right wrist and said "Jerry, don't do this," a scuffle ensured and Simms fired a shot, the bullet striking Miller in the shoulder. As the struggle continued another shot was fired, the ball striking Miller in the left side, Miller fell to the floor behind a counter and Simms left. The prosecutor stated that not realizing the full danger of Miller's condition he asked questions at first without taking notes. Warned by a physician that death was approaching, he preceded to take notes but before he had finished Miller died. A statement outside the notes was to the effect that Simms asked for a settlement, asked how much he would give him to settle but stated no specific amount that he wanted.
The defense throughout the taking of the testimony has shown a disposition to illustrate that person situated in the circumstances such as Miller and Mrs. Simms were in, could not comply with a demand such as is alleged to have been made by Simms. The prosecutor was asked on cross-examination as to his opinion as to this but the court ruled out opinions.
THE DEFENSE OPENS
An half hour before the opening of the afternoon session, the courtroom was comfortably filled with spectators, and when late comers were putting in an appearance the court bailiff experienced much difficulty in keeping the space within the railing reserved to court officials clear of encroachment.
The announcement that the state had rested and that the defense would produce the first of its witnesses, this afternoon had gone forth at the noon hour, and as there was much interest in the nature of the defense to be made by Simms ad his attorneys, this had a tendency to augment the attendance.
An adjournment had been taken until 12:30 o'clock, but it was 1 o'clock when the first witness was called to the stand.
Lewis Thompson, a farmer residing in Grand township, appeared as a witness and testified to the good character of the defendant and his reputation for industry and sobriety.
Will Russell of Grand township also testified to the peaceable disposition of Simms.
A.P.Rhoads of the same neighborhood was called, and after testifying to the good character of Simms, was questioned on cross-examination as to Simms having struck a man, named Stayner over the head with a spade some 33 years ago. Stayner died with in the year, but witness understood death was due to typhoid fever and in no way do to the blow received at the hands of Simms. Witness said the trouble with Stayner did not effect the good reputation of Simms in the Community and Simms was regarded as a very good man by those about him.
G.T.Everett, John D. Hastings, Elmer E. Kerr, E.E.Owen, William Ducat, Milton Morral and Addison Bain were called in turn, as character witnesses and also testified to an intimate acquaintance of long standing and that Simms was of good reputation and peaceable.
TESTIMONY TAKEN LATE TUESDAY AFTERNOON
The manner and time and place when Simms secured the thirty-eight calibre revolver with which he shot and killed George W. Miller, August 28, 1903, was brought out in the evidence of Ross McDonald, who was placed on the witness stand shortly after 2 o'clock, Tuesday afternoon.
McDonald resides near DeCliff and was an old acquaintance of both parties to the tragedy which cost Miller his life. On direct examination the witness stated that he sold the defendant the revolver with which the shooting was done during Wednesday evening preceding the killing, which occurred shortly before noon, Friday.
According to the statements of the witness Simms paid two dollars for the weapon which he at first announced was to be used in killing rates. After securing possession of the revolver Simms said "I'll fix the trouble now - you know I was in trouble worse than hell!"
McDonald then related a story of what Simms had told him as to his wife's actions and a story of how he had caught her with Miller, the story corresponding with that told by Simms to other witnesses, Simms also told witness of how he ran Miller down in an oat field and, taking him to the house compelling Miller and Mrs. Simms to confess their intimacy.
James Rush was next called to the stand and stated that Simms had told him prior to the shooting that if Miller did not fix matters with him he would kill him, Simms was also quoted as having said that if he had had a weapon when he caught Miller with his wife at the barn and ran him down in the oat field he would have killed him but he was without even a pen knife. Rush credited Simms with saying that Miller had broken up his home and his family.
After a brief recess Dr. Newton Sifritt of LaRue was called to the stand and gave testimony as to the location and character of the wounds inflicted by Simms upon the body of Miller. He found one the bullet wound under the right collar bone and one in the left side both of a dangerous and of a fatal character. Miller was in bed at the Byron Sorden home, was in a sinking condition and died about 5:30 o'clock in the evening.
While the doctor, together with the prosecuting attorney, and others were assembled about Miller's bedside, Miller was informed by the physician that he had but a short time to live, Miller responded that he believed it. Miller was apparently in possession of all his mental faculties and was not dazed or confused.
The witness, on direct examination was asked as to statements made by Miller during the afternoon. Witness said that Miller stated how he had had trouble with Simms over Mrs. Simms and "he thought they had it fixed," Miller said he had been at Simms' home the previous Sunday evening and been caught at the barn with Mrs. Simms. Miller ran according to his own statement, and after being brought back by Simms to the house and into the presents of Mrs. Simms. Simms threatened them, and said that Miller and Mrs. Simms must have unlawful relations in his presence. Mrs. Simms said, 'If that will settle it, we'll do it." Witness said that Miller stated it was done.
Miller also informed witness that on the day of the shooting while in the back room of Byron Sorden's Store, Sims did not ask him for money.
On cross-examination the doctor stated that Miller said he thought the matter had been fixed up at the store before the shooting.
Witness said that Miller admitted to him that he had had unlawful relations with Mrs. Simms three or four times. The prosecution was present and took the statements of Miller in writing, was reading them over to Miller and was about half through when Miller died.
The next witness was Dr. S.M. Hesser of LaRue who was also present at the time Miller died and heard many of his statements prior to his death. The doctor confirmed the testimony of the proceeding witness as to the nature and location of the wounds of Miller.
Chauncy Owens, the next witness substantiated the statements of the former witnesses in several details as to the troubles of Simms and Miller but added little that was new to the testimony already adduced. Simms worked about seven years for Owens and for several days before the shooting was in such a mental and physical condition, according to the witness that he was unable to work and on Wednesday before the shooting was sent home by the witness to remain there until such time as he might recover his composure and be better fitted to perform his duties.
James M. Rush was called to the stand and testified to meeting Simms coming out of Sorden's store immediately after the shooting. Simms had a revolver in his hand and remarked as he passed ''I shot him I'll learn people not to meddle with my family."
Witness passed Byron Sorden coming out of the store carrying his little girl. In the store witness found Miller lying behind the counter and assisted to carry him to the Sorden home.
Eugene Miller, a groceryman of DeCliff and a cousin of George W. Miller said that he saw Miller arrive from Kenton on a train about 8:30 o'clock on the morning of the shooting. Latter he was at the Sorden Store when Simms and Miller were in the back room, Simms came out of the back room in an angry mood and left the store with out a remark. He was closely followed by Miller. Witness was not present at the time of the shooting.
Abraham C. Brady was called next and although he added a touch of humor to the proceedings but little was received from him that could be regarded material.
WEDNESDAY AFTERNOON'S ACCOUNT OF SIMMS TRIAL
The interest taken by residents of the township located in the north-western part of the county in the trial of Jerry Simms for the killing of George W. Miller was made manifest by the attendance from that quarter of the county at the proceedings Wednesday afternoon.
The Common Pleas courtroom has on very few occasions contained so large a company as that which packed it to the doors at this time. When all seats had been taken extra chairs were placed in available places within hearing of the proceedings and when these were occupied the audience pushed its way into the aisles apparently content with elbow room and to be within sight of the trial if not within hearing.
The audience contained a plentiful sprinkling of women, and being shown no special deference many remained standing throughout, the entire afternoon.
In the course of the calling of a long army of character witnesses the defense placed Amos Wilson, John Leslie, John Rhoads, Elmer Mayfield, Chauncy Owen, Dallas Deal, Hugh Smith, Edward Gardner, and James Deal on the stand. All testified to the peaceable disposition and good character of the prisoner at the bar.
About 2 o'clock Mrs. Alice Wilson a daughter of Jerry Simms, was called and after stating that she was one of a family of nine children she was questioned as to a conversation she had had with Byron Sorden since the killing of George Miller.
Mrs. Wilson stated that Sorden told her he did not witness the shooting and as he passed into the store he met Jerry Simms coming out. Mrs. Wilson stated that Sorden had told her that Miller had been talking on the telephone to Mrs. Simms just before the shooting occurred and that on the first meeting of the morning Miller called Simms into the back room of the store, Mrs. Wilson was asked at this point to state something of the home life of her father and mother and the relations existing between them but, the court refused to allow the witness to answer. She was not cross-examined.
Lewis Wilson was next called to the stand and in the course of the direct examination confirmed the statements of his wife, the preceding witness, as to what Sorden had told her.
Mrs. Galista Edgington, another daughter of Jerry Simms, was called to the stand and after stating that she resided near Brush Ridge with her husband related the circumstance of a stay her mother made at her home a short time before the shooting and how George Miller called over the telephone for her, Mrs. Edgington responding. The witness informed Miller that her mother could not hear over the telephone and told him to communicate his message to her. This he refused to do. Witness did not tell her father of the incident and did not see him again until after he had surrendered and became an inmate of the county jail.
William Mack, an old resident of LaRue, related the story of a meeting of Simms and Miller in a store at LaRue on the Saturday preceding the shooting. Witness saw but little and heard nothing of the conversation of the men.
Inez Simms, the eighteen-year-old daughter of Jerry Simms related something of the appearance of her father at his home during the morning of the shooting just after the first meeting of Simms and Miller at the Sorden Store. Miss Simms said her father was much excited and remained for about twenty minutes at his home. He then returned to the store to secure sugar. Returning home after the shooting, he was much disturbed in mind apparently but the court ruled out answers as to what Simms said, also as to whether Mr and Mrs Simms agreed well in everyday life.
James Boyd, a resident of DeCliff, testified to an extended acquaintance with Simms and said that some days before the shooting Simms appeared to be much worried but he paid little attention to it, not being familiar with the domestic troubles of Mr and Mrs Simms. He was forbidden a statement as to financial transactions with Simms and was not cross-examined.
Wilson Mason of DeCliff was next called and proved another good character witness for the defense. On cross-examination it was brought out that the witness was present at the time Simms had trouble with Stayner. Witness related that the affair occurred when Simms was but about eighteen years of age and although he struck Stayner a glancing blow on the side of the head with a shovel, the latter was not much injured and apparently suffered no ill effects. Witness stated that he was present when Stayner died of typhoid fever a year later.
Hugh McWilliams told of a conversation he had at his home in DeCliff with Simms on the Thursday preceding the shooting of Miller. He said Simms was pale and he gathered the impression that Simms was sick, not being conscious of what was passing in the Simms Family life. Witness denied telling the prosecutor and others that Simms was a desperate character and the officers who went after him should be careful. On cross-examination McWilliams could not remember that he had had any conversation whatever with the prosecutor.
At 4:25 o'clock Jerry Simms, the prisoner at bar, was called to the stand and stated that he was fifty-one years of age and has been married about thirty-four years.
Witness said he had known George Miller about thirty-seven years and that Miller was a frequent visitor at the home of Mrs. Simms before she was married. He could hardly be regarded as a suitor, however, in the opinion of the witness.
Simms related that he was the father of nine children and, continuing told places the family had resided throughout the years.
Leading up to the shooting the prisoner said that he and Miller had been the best of friends, the very best of friends up to August 23, 1903, a Sunday evening. He related that during the evening he was not feeling well and remained at home reading while his wife and two small children went to church.
In time the children returning without their mother, caused him to investigate. After a trip in the direction of the church for some distance, he looked thorough the back yard and there met his wife, who appeared to be frightened and uneasy. At the same time he saw a man running from the barn and, following him caught him in an oat field some distance away.
Simms said he was greatly shocked when he found the man was George Miller and exclaimed, "My God, George is it you. My God what have you done!"
The prisoner then with eyes brimming with tears told of how he forced Miller to return to the house with him, Miller protesting.
Mrs. Simms was waiting outside the house and Miller seeing her called out "Jane, they have caught us." Simms said he lectured both and reminded Miller of the fine family he left to come and destroy the happiness of a home and called on him in the name of the good women Miller had buried but eight months before to keep away from his home.
Miller wanted to leave, and, after Simms had told him what he thought of his actions, he permitted him to do so but warned him never to go near Mrs. Simms again or he would kill him.
A few days later Miller forced his company onto Simms at his home and was there for dinner. Witness stated that Miller asked him "What in the hell he proposed to do about it? Mrs. Simms thinks more of my little finger than she does of your whole body."
Simms said that he was engaged in threshing that day and was so tempted to kill Miller and felt so outraged that he dug his fork into the ground to resist the temptation to run it into Miller.
As the prisoner proceeded with his story in broken, yet dramatic voice his children and little grandchildren assembled near him, present a pathetic scene. All were overcome and many spectators as well as some of the jurors were in tears.
As the hour had grown late court was adjourned until 8:30 o'clock this morning with the story of the prisoner but half completed.
THURSDAY, MARCH 10, 1904
When the trial of the case of the State of Ohio against Jerry Simms was resumed this morning, the common pleas courtroom was again packed to the doors with spectators: the attendance being fairly well divided between the city and the country.
There was quite a contest for points of vantage from which to hear the proceedings and the court experienced much trouble in keeping the crowd within proper bounds.
As court had adjourned, Wednesday evening with Simms on the witness stand and the story of the defendant as to the killing of George W. Miller and the circumstances surrounding the unfortunate affair but partially given, it was fully understood that Simms would be the first witness of the morning, and this doubtless had much to do with the early morning crush for seats.
The appointed hour for the opening of court had passed when the jurymen took their places in the box and the court bailiff rapped for order in the room.
The interest centered in Simms was manifested by a subdued murmur running through the audience when he was called to the stand and as the identity of the prisoner was made known to all new-comers, all were alert for the best view and to hear every word of his statement of the details of the tragedy.
In direct examination the witness stated that he could not remember what he done during Tuesday and Wednesday but was sure he did not work, Thursday he related that his wife left him in the morning after he told her that he could live with her no longer.
As to the occurrences of Friday morning, the witness remembered a conversation with William Dutton as to his troubles and his desire to sell his property and to leave the country. Witness stated that during the morning his children called his attention to the fact that there was nothing to eat in the house and with his little son he went to Byron Sorden's store where he bought the lad some crackers and cheese. The child took the staples and as father and son were leaving the store, Miller took him by the sleeve and called him into the back room. The child waited while the men where in the back room. Simms said Miller asked him why he was so "damned grouchy," and told him Mrs. Simms thought more of him than of Simms. Miller asked where Mrs. Simms was and as the response of Simms was not satisfactory he told witness a barking dog would never bite and he, Miller, was not afraid of him.
The men separated and, Simms returning home, was sent back to the store by his daughter, Inez, for sugar. Arriving in the store witness claimed Miller arose from a chair and came at him. Witness knowing trouble was imminent drew his revolver. As he did so Sorden picked up his child and fled from the store. Miller and Simms grappled and in the struggle which ensued many boxes were overturned and Miller backed Simms behind a counter where the first shot was fired. Witness did not remember how many shots were fired but remember seeing Miller fall to his knees behind the counter.
At that time, Simms was in full possession of the revolver, although before Miller collapsed there had been a hard struggle for its possession Simms left the store, and as he passed out the door he met Byron Sorden coming in.
Witness then recounted going to the depot and asking the operator to sent for the sheriff to come and arrest him. Then, going to his home, he told his daughter, Inez, of the shooting. Changing clothes, he started for Marion expecting to meet the sheriff coming after him. As he walked he thought the matter over and decided to leave the country, which he did.
The story of the prisoner traveling through various western states and his return to give himself up to the authorities was told and the attorneys returning to the scenes preceding the shooting asked the direct question if witness had ever forced Miller to have unlawful relations with Mrs. Simms in his presence.
Witness said he never did and would rather die in the electric chair than do any such a thing.
Witness also denied ever asking Miller for money in any manner or form or for any amount, definite or otherwise.
The circumstances of how Simms came into possession of the revolver with which he shot Miller was reviewed, but witness did not know of the present whereabouts of the weapon as he gave it to his daughter, Inez, before leaving the country. Simms stated that when he went to the Sorden store he had no idea of killing Miller, but had only contemplated shooting him if he ever troubled his family again.
Witness said his wife had never called on him since his incarceration in the jail and he had no desire to see her.
Various points of evidence were adduced in a disconnected way. Witness testified that he had reason to fear Miller and did fear him and gave a number of other points of minor importance.
On cross examination witness stated that, although he threatened to shoot Miller in the oat field after catching him with Mrs. Simms he had nothing to do it with. Miller at first proclaimed himself a friend of Simms in the oat field, but refused to go back to the house until the threat was made.
Simms told Miller that if Mrs. Simms would say his presence at their home was with good intentions and innocent, he would belief her, as she had never lied to him. Instead of this however, both confessed their unlawful relations and Mrs. Simms begged her husband not to harm Miller.
Witness admitted threshing the next day with Miller present for a time, but denied any greeting of him in a friendly manner, either on that day or any of the days following. Witness also denied calling Miller into the back room of the Sorden Store, but said Miller preceded him and opened the door to the back room.
As to the relations of witness with Byron Sorden, he stated that he knew of no reason why Sorden should not be friendly to him as he had always in the past regarded him as a friend. Simms positively denied ever telling anyone that he intended killing Miller without qualifying the statement by saying if her ever returns to bother my family."
"You want to say to the jury, then Mr. Simms that you did not kill George Miller because he had debauched your wife?" asked Attorney W.E.Scofield.
"I can not say that I shot George Miller," said Simms. "He had as much control of the pistol as I had at the time of the shooting."
"Did you pull the revolver because George Miller had debauched your wife?"
"No, I pulled the revolver because he was coming at me. I pulled the revolver in self defense. The only reason Miller had for assailing me was because he was scheming to give me all the trouble he could."
Witness said that Byron Sorden was a liar and everybody knew it, that Sorden had changed his story a couple of times since the shooting that he was not in the store at the time of the shooting and that he did not pick up a fork to defend himself. Simms said he had never intended to shoot Miller unless he came onto his premises that his friends had advised him not to shoot him under any circumstances and that he had to certain extend listened to their advice.
Witness said he had left the county because his daughter, Inez, had bagged him never to let them put him in jail and had advised him to leave also, because he feared that a mob might raise and, not understanding the; circumstances, cause further trouble.
At this point, the witness was so much overcome by his feelings that he could scarcely talk and many about him were crying. This concluded the examination and the witness was dismissed.
Jerry Simms was an extra ordinary witness in many ways and withstood a constant cross fire of questions remarkably well.
MRS. SIMMS ON STAND
After a short recess Mrs. Simms, who had not up to this time, appeared in the courtroom was called and there was a craning of necks for a glimpse of the woman who had been accounted one of the important facts in the case.
Mrs. Simms testified that she was fifty-six years of age and the mother of eleven children, nine living. She said she had lived a happy life as the wife of Jerry Simms and that George Miller had been accounted a neighbor and a friend.
Mrs. Simms said Miller waited for her as she was returning from church with her two children on the evening she was caught with him by her husband. She stated that he enticed her to a small hay stack on the Simms premises despite mild protests made by her. She related the circumstances of her husband coming upon them unexpectedly, substantially as given by Simms, and told of how her husband cried over the wrong she had committed, and during the days following acted like a crazy man.
Mrs. Simms denied that she ever invited Miller to come and see her, and as to the story that her husband had compelled her to have unlawful relations with Miller, she denied it in every detail. She said that such a thing was not ever suggested. Mrs. Simms then recounted how Miller had called her over the telephone and refused to allow her daughter to talk for her, this being after the separation of herself and husband.
On cross-examination, Mrs. Simms admitted going to the Miller home unaccompanied by her husband. She also told how Miller came to the house for dinner on the day following the Sunday evening incident. She stated that Miller ate a hearty dinner but her husband refused to talk to him and ate no dinner. Mrs. Simms also told the circumstances of the separation the following day and how she took her little son and went to Nevada after Jerry had told her he could not live with her. Witness also stated that Simms was the father of all of her children, many of whom where assembled in the courtroom.
Mrs. Simms related the circumstances of a meeting with Miller in LaRue on the Saturday preceding the shooting he followed her into a store and talked to her but nothing relating to the circumstances following passed between them.
The first of their adultery was committed on the Sunday evening when Simms came upon them. During her examination Mrs. Simms found some refuge from the curious gaze in heavy veiling. Her responses were prompt and in firm tone with not a trace of embarrassment.
Chauncey Owen, the next witness called, appearing for the third time, stated that Simms seemed to be "in lots of trouble" when he talked to him and said if he had had a revolver when he caught Miller with his wife he would have killed him.
Court was then adjourned for the noon hour.
THE AFTERNOON SESSION
Just prior to the noon recess the attorneys for the defense announced that they had practically submitted their evidence and if the state did not introduce too many witnesses in rebuttal the arguments might begin during the afternoon session.
Court was adjourned until 1 o'clock but it was after that hour when the bailiff rapped for order and the taking of evidence was resumed.
Theodore Uncapher was the first witness called, and in the course of his testimony stated that he was a resident of Marseilles and well acquainted with the prisoner at the bar. He never knew anything contrary to the good name of the defendant and always held him in high regard. Witness said he had never heard of Simms striking a man with a spade until recently.
Grant Pole, another resident of Marseilles testified to an extended acquaintance with Simms and to his good reputation.
At this point, the defense rested and the state announced that it had finished.
Without preliminary of any kind Prosecutor Fred E. Guthery, representing the state, proceed with his address to the jury and launched into a summary and analysis of the evidence taken.
The first part of the address of the prosecutor was marked by no special effort at oratorical or dramatic effect, but simply consisted of a plain review of the circumstances leading up to and surrounding the tragedy and the testimony as to the actions and statements of the parties involved in the case from the view-point of the state.
As the prosecutor proceeded, a statement made by the speaker an in a remark made by Simms immediately after the shooting to the effect that "he had fixed him," was challenged by the attorneys for the defense but before the stenographer could look up the statement the objection was passed and the speaker continued.
At this point, a daughter of Simms, the defendant, was overcome and had to be assisted from the courtroom.
The speaker launched into a severe arraignment of Simms and his communication with Miller in the back room of Sorden's Store, charging him with attempting to settle the matter with Miller for dollars and cents. A graphic word picture of the death bed scene at the Sorden home was presented, and the dying statement of Miller were gone over in detail.
FRIDAY, MARCH 11, 1904
When the argument in the trial of the case of the State of Ohio against Jerry Simms was resumed, this morning, the courtroom was packed to suffocation with spectators.
Attorney Grant E. Mouser, representing the defense, gave a concise exposition of the evidence and then illustrated the downfall of Mrs. Simms a scarlet women though the good mother of eleven children in the past, and of George Miller, who, professing to be the kind friend of Jerry Simms, wrecked his home and cast a shadow over all the after life of not only the children of the unfortunate woman but of those of the wife who had passed to the great beyond.
The illustration was dramatic in the extreme and before the picture of the broken home was half completed the children of Simms and the children of Miller assembled about were overcome with grief. Tears were the tribute of sympathy paid the broken-hearted children by many in the audience.
''The guilty man flee when no man pursues," declared the speaker, George Miller and Mrs. Simms were not caught in the actual act of adultery but, knowing his quilt, Miller betrayed his presence by running across the oat field. His first effort to excuse himself when caught was a declaration of his lasting friendship for Simms, but, when marched before his companion in sin he could not repress an accusation of himself and called out, "My God! Jane, they have caught us."
The charge that Simms compelled Miller and his wife to make an unlawful exhibition and attempted to blackmail Miller carried the speaker to the deathbed scene when Miller, hating Simms to his last breath, endeavored to cast all the blame on Jane Simms and left a lie recorded against the man he had wronged. His conscience, however, forbade that his own daughter would know of his part in the tragedy and he bagged the witnesses about his bed side "Don't tell my girl, don't tell my girl." By casting aspersions on some and accrediting the balance, he sought to hold the good opinions of his own children. George Miller was an intelligent man, but instead of sending for a minister and looking to the preservation of his soul, he pleaded to preserve his good name, cost what it might.
As the argument proceeded the audience involuntarily broke into a demonstration, an outburst of applause that caused the court to give a very sharp admonition and to announce that a second offense of the kind would be followed by the immediate clearance of the courtroom.
THE AFTERNOON SESSION
Attorney Grant E. Mouser occupied the entire morning with his statement of the case and did not conclude until after 12 o'clock.
Court was adjourned until 1 o'clock, and beginning at that hour, Attorney William E. Scofield concluded the argument for the state.
The speaker prefaced his statement with a splendid tribute to the effects and oratorical abilities of the opposing counsel in conducting the defense.
The speaker, therefore, stated that the jurors should not allow their attentions to be diverted by such things from the case in hand, Mr. Quiqley had stated that if he were prosecutor, he would withdraw from his position rather than prosecute Simms under the indictment against him, Mr. Scofield advised the jury not to be controlled by sentiment, by sympathy for the families concerned or for the defendant, but recommended that nothing but the law and the evidence would be considered in the returning of a verdict.
The speaker called upon the jury to consider whether Jerry Simms killed George Miller in self-defense or whether Miller, in the struggle killed himself and, laying aside all question of sentiment follow the line of circumstances down to the day and the time of the tragedy.
Mr. Scofield then proceeded to review the various points of evidence and to call the attention of the jury to such as was calculated to support the charge of murder in the first degree. The attorney thought that the statements of Byron Sorden, regardless of the impeachment of his past character, attempted by the defense, were clear and truthful and worthy of acceptance in every detail. The speaker gave most of his attention to the evidence bearing directly upon the actual killing, not dwelling upon the family relations of the parties as his predecessors had done.
JUDGE YOUNG MAKES HIS CHARGE TO JURY
DEFINES THE DIFFERENT DEGREES OF CRIME WHICH THE JURY MAY FIND
"Gentlemen of the Jury - The evidence in this case has been submitted to you that you may arrive at a correct and just conclusion. You have seemingly given to this case that attention and have listened with that care which the importance of this case demands. It is now my duty to instruct you upon the law applicable to this case. In every case when a person is charged with the commission of crime, he is presumed to be innocent until full proof of his quilt is made: generally speaking, there is no presumption more highly favored than that of innocent, and therefore in entering upon the investigation of this case, you are to presume this defendant to be innocent of the crime charged in this indictment and this presumption of innocence remains with the defendant in the examination of every fact and preposition necessary to be established on the part of the State. It is a shield and protection, which the bar throws around him until overcome by that proof which convinces the mind beyond a reasonable doubt.
"It is your duty in entering upon the investigation of this case to lay aside any and all bias, prejudice or suspicion that you, or any of you may entertain against the defendant by reason of his arrest and indictment and if in any manner, except from the testimony permitted to be given you during this trial, you have formed any opinion, it is your duty to completely eliminate it from your mind and try the defendant upon the testimony which you have heard in this case and the instruction which will now be given you in charge.
"As to the matters of fact in dispute in this case, you are the judges. the provinces of the presiding judge and jury in cases of this character are distinctly and clearly separated. It is the duty of the jury to pass upon and determine all questions of fact. You should receive and apply the law as given you in these instructions. Having instructed you as to the rules of law which would govern deliberations in this case, the presiding judge will have done his duty.
"I have no right to instruct you as to what I may think is established as to any controversial matter of fact: and if in the course of these instructions, or at any time during the trial, it should seem to you, I have intimated or expressed any opinion upon such questions of fact, or made any remarks that you have though expressed my opinion favorable to one side or the other. It is your duty to wholly exclude the same from your minds.
"This defendant, Jerry Simms, has been indicted by the grand jury of this county, charged with the crime of murder. To this indictment he has pleaded not guilty. This indictment will be before you for your examination, and it is proper that you carefully read it upon your retirement, it is not, however, to be taken or considered as evidence in this case. This indictment contains three counts, each count in substance charges this defendant, Jerry Simms, with having purposely and of deliberate and premeditated malice killed George W. Miller, by shooting him, on or about the 28th day of August, 1903.
"This is a concise statement without the legal details set out in the indictment, to call to your attention the substance of the issue.
"By the laws of this state, whoever purposely and of deliberate and premeditated malice, kills another is guilty of murder in the first degree. Before any conviction can be had under this indictment, there are certain essential facts which must be established beyond a reasonable doubt. What these facts are will be stated in these instructions. The crime must have been committed by the defendant in the county of Marion and in the State of Ohio, on or about the 28th Day of August 1903. That George W. Miller, named in the indictment, is dead, and that he came to his death by, reason of a mortal wound inflicted upon his person by the defendant, Jerry Simms, in the manner and form and by the means described in the indictment.
"Under this indictment, it is essential, to a conviction of murder in the first degree, that it appears that defendant, Jerry Simms, in the manner and form charged at about the time charged, and at the place charged, did purposely and of deliberate and premeditated malice kill George W. Miller.
"An act is done unlawfully when done in violation of law. The word purpose is used in the statute in its plain, ordinary meaning-it means intentionally: it imports intention or design to do an act. Purpose to kill may be determined from the circumstances under which the killing is done. If the instrument used in inflicting a mortal wound was a deadly weapon calculated to destroy life, the jury may infer the intent or purpose to kill by such use of the weapon. It is a general principle that what a man does willfully and knowingly he intends to do and intends the natural consequences of his voluntary acts. the presence of intent or purpose is a question of fact to be determined by the jury from all the circumstances proven.
"While the indictment charges the crime of murder in the first degree the statute requires the jury, in case they find the defendant guilty under such indictment to determine the degree of the offense of which they so find him guilty. And included within the limits of this indictment are two lesser offenses which, though not, specifically named therein, are strictly speaking, a part thereof, one being murder in the second degree, which is defined in our statute as purposely and maliciously killing another without deliberation and premeditation, not by poison or in attempting to perpetrate rape, arson, robbery or burglary.
"A second lessor offense included within the terms of this indictment is that of manslaughter: under our statute, whenever one unlawfully kills another when such unlawful killing does not amount to murder in the first degree or the second degree, as herein defined, is guilty of manslaughter. Such unlawful killing may be without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act. Having given you these instructions of the several crimes legally included within the terms of this indictment. It devolves upon you, from the facts and circumstances you have before you to determine the question involved here: and if you, find the defendant guilty, to find and determine the offense within the terms of these definitions, as herein given, of which you find him guilty.
"Every element herein explained to you, going to constitute either of these offenses, must be found by you from the evidence to exist beyond a reasonable doubt, before you can find and determine the defendant guilty of such offenses as determined by you.
"As the court has herein before stated, this indictment contains three counts. The first count charges the defendant, Jerry Simms, with having killed George W. Miller, by inflicting a mortal wound upon the right front shoulder below the collar bone. If you find the defendant guilty under the instructions heretofore given and further find the death of George W. Miller was caused solely by the wound upon his right shoulder, then you will find him guilty as charged in the first count of the indictment and not guilty as charged in the second and third counts of the indictment.
"If you should find the defendant guilty and further find that the death of George W. Miller was caused by two mortal wounds as alleged in the third count of the indictment then you will find the defendant not guilty as charged in the first and second counts of the indictment but guilty as charged in the third count of the indictment.
"Deliberation means to think upon, to turn over in the mind, to weigh. To premeditate means to think over beforehand. If the defendant cooly formed to kill any time before he executed it, the act was deliberated and premeditated. Malice is an evil design, the influence of a malignant heart bent on mischief.
"If you are satisfied from the evidence beyond a reasonable doubt that the defendant, Jerry Simms, on or about the 28th day of August, 1903, in the county of Marion and in the State of Ohio, in manner and form and by the means mentioned in the indictment find purposely, and of deliberate and premeditated malice kill George W. Miller, then you will find the defendant Jerry Simms, guilty of murder in the first degree.
"If, however, you have a reasonable doubt upon any element which goes to make up the crime of murder in the first degree then you should acquit the defendant of the crime of murder in the first degree as charged, in the indictment and proceed to inquire whether the defendant is guilty of murder in the second degree, which has herein before been explained to you.
"If you find the defendant not guilty of murder in the first degree and not guilty of murder in the second degree you will then proceed to inquire whether the defendant is guilty of manslaughter, which has herein before been explained to you.
"If you find the defendant guilty of neither of the offenses then your verdict will be not guilty or if you find from the evidence, that at the time George W. Miller was shot and killed there was a conflict and fight between Jerry Simms and George W. Miller, the deceased and further find, that the defendant was not to fault for the commencement of said conflict or fight and find that defendant, Jerry Simms, fired the shot or shots which killed George W. Miller and further find that at the time the defendant in the careful and proper use of his faculties bona fide believed, in good faith believed that he, the defendant, was in imminent danger of death of great bodily harm and that his only means of escape from such danger was by taking the life of George W. Miller and this will be true, though in fact the defendant was mistaken as to the existence or immense of the danger. If you so find from the evidence the defendant would be justified upon the grounds of self defense, then your verdict should be not guilty.
"A reasonable doubt is not a captious doubt, but is an honest uncertainty, remaining in the mind of the juror, after he has heard the evidence and honestly tried to determine the quilt or innocence of the accused.
"You will be justified and are required to consider a reasonable doubt if the material facts, without which quilt cannot be established may fairly be reconciled with innocence. From the nature of things reasonable certainty in all that can be attained on many subjects. When a full and candid consideration of the evidence produce a conviction of quilt and convinces the mind to a reasonable certainty, a mere captious or ingenious artificial doubt is of no avail. If the evidence satisfies you of the defendant's quilt, beyond a reasonable doubt, you should not hesitate to so find in your verdict: but if a reasonable doubt remains in your minds as to the quilt of the defendant of either or all of the grades of crime charged in the indictment, then you should not convict as to any or all concerning which said reasonable doubt remains.
"It has not been attempted here to call your attention to the many details of the testimony before you. You are the judges as to the reliability of witnesses and you are to determine what evidence is accepted to be true and what evidence is to be rejected as false. You will carefully consider the evidence and from it arrive at such a conclusion as will satisfy your judgement.
"This is a case of the first importance, not only to the defendant but also to the state, and the duty with which you are charged is one of the most solemn and sacred that can devolve upon a citizen in any relation in life. It is essential to the peace and welfare of society and good government that every guilty man be punished when the quilt is established by the measure of proof to convict of the crime in a court of justice.
"You should bring to your consideration of this case your most careful and deliberate judgement. You will fully have discharged your duty to the state and to the defendant if, when your verdict is made up, after a careful consideration of the law and evidence you can truthfully say that you have conscientiously discharged your solemn obligation to make it a true deliverance between the State of Ohio and the defendant.
"The forms of verdict will be three verdicts finding the defendant, Jerry Simms guilty of murder in the first degree as he stands charged in the three several counts of the indictment. The next three will be exactly like the first three with the addition to each of the second four words, which are "The Jury recommends mercy."
"The statute of this state provides that the jury, in cases where in finds the defendant guilty of murder in the first degree, it thinks proper, recommend mercy. The legal effect of such recommendation being to change the penalty of death-fixed for the simple finding of murder in the first degree to that of imprisonment for life.
"There will next be three forms of the verdict finding the defendant guilty of murder in the second degree, one under each of the three several counts of the indictment.
"There will next be three forms finding the defendant guilty of manslaughter one under each of several counts of the indictment. The next will be a general verdict finding the defendant not guilty.
"While you are considering this case it is an absolute requirement of law, that you be kept together in the custody of an officer, and the meaning of this is you must have no conversation or communication with any person outside of your jury room concerning this case, in any form, nor must you separate at any time. You will be in this officer's charge at all times while you deliberate upon your verdict but you will not permit him, at any time, to be with you in the room while you are consulting, and you must not communicate with him or through him to any one anything pertaining to this case, except such matters as the court permits to be submitted through the officer.
"In case you shall not agree, when it comes time for your meals, you will remain together in a body in the custody of the officer and at the conclusion of your meal at once return to your room, having no conversation pertaining to this case with each other outside of the jury room or any one else in any manner concerning this case.
"When you retire, you will appoint one of your number foreman who will sign the verdict agreed upon and return it into court.
"You may now retire for deliberation."
THURSDAY AFTERNOON'S ARGUMENT IN THE TRIAL
REVIEW OF TESTIMONY MADE BY OPPOSING ATTORNEYS
When the argument in the trial of the case of the State of Ohio against Jerry Simms was opened in the court of common pleas, the courtroom was crowded to the doors by those anxious to hear the review of the testimony to be made by the attorneys for the opposing sides.
After reviewing the evidence as to the preliminaries of the tragedy and the statements made by Miller on his death-bed, the prosecutor flatly accused Simms of forcing his wife to have relations with Miller in his presence and denied that Miller, about to face his maker, would have falsely accused Simms in regard to it.
The speaker explained that Simms' only reason for delay in the killing of Miller was his desire to blackmail and it was only after his wife had left his home and he saw no chance to extort money that he took his gun and went out and did murder.
In the flight of Simms and his absence of several months, the prosecutor
found no evidence of a conscience sustained by justifiable circumstances or of a killing in self-defense.
Prosecutor Guthery referred to a possibility that George Miller was not the only caller upon Mrs. Simms, that possible George Miller had paid the penalty for other men's sins as well as his own. At this point the attorney's for the defense asked the court to reprimand Mr. Guthery for departing from the evidence and making accusations that were not supported by the testimony. The incident passed with a comment by the court that counsel should confine itself to the evidence and deduce nothing that was without support by testimony.
The prosecutor concluding, the court announced a recess of ten minutes,
Mr. Quiqley appeared before the jury a silence fell over the audience that was not lifted until the speaker finished.
Mr. Quiqley was dramatic in the extreme from the beginning and dwelt with much power on the divine command. "Thou shalt not covet thy neighbors wife.''
The attorney turned his attention to a review of the testimony as to the charge that Simms was endeavoring to blackmail Miller, it was met with the assertion that if Simms had so little care for the mother of his children as to wish to realize money on her flesh he would not kill the hen that was to lay the golden egg. He would rather have begun a suit for damages.
SATURDAY, MARCH 12, 1904
The trial of the case of the State of Ohio against Jerry Simms, charged with murder in the first degree, was concluded in the court of common pleas at 7:45 o'clock, Friday evening, when the jury, after deliberating five hours, returned a verdict of not guilty.
When the case was submitted to the jury and the jurors retired for deliberation, the courtroom was packed with spectators, and hundreds lingered
about the courtroom all afternoon expecting a return to be made early.
The prisoner and his children were accommodated at the county jail during the wait for a report and many friends called there to brighten the hours of anxiety with a word of sympathy, encouragement and good cheer.
Early in the evening the courtroom was comfortably filled with spectators and when it was announced that the jury was about to make its report additional hundreds pored into the room and seized upon every available spot from which to witness the closing scene of the trial.
The prisoner, with his family circle grouped about him, all eager with hope yet expressing anxiety in every movement, appeared in his accustomed place and was quickly joined by Attorneys Mouser and Quiqley, who have conducted the defense. The judge had been called and immediately after his arrival the report of the jury was received.
When clerk William T. Johnson concluded the reading of the verdict with words "not guilty". The spectators stood up and cheered, unrestrained by the court, while the family and friends of the man who has been on trial for his life, embraced him and were overcome by their feelings of thankfulness. For fully an hour the crowd surged about the room congratulating Simms, the jurors, the attorneys and members of the family, and so great was the excitement that the judge was not given an opportunity to thank the jury for its services and give the formal dismissal.
It is learned on that the first ballot of the jurors as to the quilt or innocence of the prisoner was taken soon after the jury retired to its room and showed ten to favor acquittal and two conviction for manslaughter. The jury was then taken out to supper and upon its return the evidence was reviewed in certain particulars and a vote was taken, which resulted in the verdict returned.