Jeptha Root Simms.

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lake, thinking it was birds; turned his head and kept
watch; saw Foster, he was bent over a little, ap-
parently, going sideways; saw him while passing, a
distance of six or eight feet; had no doubt as to the
person. Wood took up a load of traps and brought
them to the canoe; does not know but he went again;
thinks he brought them in two loads; went back out
of sight half a minute; came out very quick; clenched
up the traps and threw them in the boat in a hurry,
and then moved off; Indian, as he heard a rattling in
the bushes, shoved his boat close up to witness; they
shoved off from shore and brought the Indian between
witness and W^ood, in his own canoe; the gun then
was heard to go off upon the shore on the point; wit-
ness turned and Indian was falling backwards from
his canoe; made two motions w^ith his hands; his
legs stuck in canoe and thus he died. W^itness turned
to shore and saw Foster on shore in the direction of
the report, and where he saw him before; witness and
Wood had each a rifle; neither of their rifles were
discharged. Witness called to his companions and
said ' here is a dead man.' Waters had no fire-arms;
an hour from leaving forge to that time, he thinks,
but is not certain. Witness examined the body; un-
der the left arm, about two inches, the balls entered,



TRAPPERS OF NEW YORK. 221

arid came out about six inches below the right arm;
these killed him; gun was very heavily loaded; saw
no other person on shore but Foster; Wood was in
the boat before gun was fired.

Cross-examined.— It was two or thi^ee rods from
their boat to where Foster stood; after report saw him
in the same open spot again; did not see any gun in
his hand either way he passed; did not notice any
smoke; was pretty badly frightened.

Nelson Stimpson sworn. — Was present 17th Sept.
last; saw Waters and prisoner; mentions same party
in boat named by previous witness; Wood and Chase
were in one canoe and the Indian in another alone;
went up two miles; is not acquainted there; thinks it
may have been an hour before the catastrophe; saw a
wake in the bushes; boat passed along but Wood's
boat had stopped; witness saw Foster pass ten feet
partly bent over (lurking) in the bushes; witness and
his party were hallooed to at a distance of thirty rods
from this, and after the report of a gun, came back
and found Indian's head and part of his body lying in
the water, and his legs in the canoe; did not see any
gun in Foster's hands; did not examine body; Chase
fired oflf his gun two charges; it was a double shotter,
and appeared to have been loaded sometime; Wood
discharged his gun; did not see Foster after report of
gun; saw no smoke there.

WiLLiSTON Tyler, sworn. — Saw Foster on the 17th

of Sept. last at Foster's house; saw Waters at the
19*



222 TjIaffers of new york.

forge same day; went up from forge with party
spoken of; they w^ent up to the point (say two miles)
in' company; Wood and Chase together; Waters
alone; all making to this point of land; W. and C.
w^ent a-shore; Stimpson spoke " There goes Foster;"
witness looked and saw a man there that he (witness)
called Foster; they rowed round the point out of
sight of the rest; Foster was walking a little stooped
and sideways; rowed thirty yards, heard report of a
gun; heard Wood or Chase hallo " come back as
quick as you can; " they went back, and Chase said
they had a dead man there; Waters's head and
shoulders were in the water and his legs in the canoe;
did not examine his body; two holes in the shirt un-
der one arm; examined guns of the others and found
them charged as stated by the other witnesses; saw
no gun in Foster's hands; bushes two feet high; was
five or six rods distant when he saw him; witness
and Wood went to Foster's house; found Johnson on
the hill after this in a house occupied by Wood and
Chase carrying in some hay; Johnson lived with
Foster; this was four miles from the place of exe-
cution; did not see Foster after report of gun until
at Foster's house same day, four miles from point.

Cross-examined. — Went to Foster's house on the
way from point; found him there lying on the bed;
did not know Foster until the night before; he was a
stranger until then; Foster may have passed eight or
ten feet in witness's sight while they were going



TRAPPERS OF NEW YORK. 223

alono; in the boat; there were bushes there but not
so high as elsewhere; some were ten feet high; saw
side of his face; judge of him partly from his gene-
ral appearance; he was without a hat; was bald-
headed; he was leaning the same way they were
passing; stooped; did not see his hands; Foster was
between two and three rods from the point which was
to the left; when they found Foster he was lying on
a bed; saw his gun in a corner of the room; does
not know whether it was loaded or not; was nothing
peculiar in Foster's dress; witness was not rowing
when he saw Foster in the space; neither saw him
before nor after he was at that point.

Direct testimony resumed. — Foster discharged and
reloaded his gun before he started; this was about
one quarter of a mile from Wood's house; Foster's
house is on the right-hand side of outlet; and he
saw him at the other side of the outlet; the nearest
way to get to that place from Foster's house was to
cross the bridge at the forge; had a conversation with
Foster after he fired the gun and reloaded; witness
inquired " have you shot the deer? " " No, that d — d
Indian," showing on his wrist a scratch and blood;
" have had a squabble with the Indian and he cut this
spot; and if it had not been for Mr. Wood and Chase
the Indian would have killed me; go either forward
or behind; I shall not go fishing."

Cross-examined, — The place called the forge has
not been used in many years; this is about eighteen



224 TRAPPERS OF NEW YORK.

miles from any settlers; the outlet is from ten to fif-
teen rods wide; they talked of going to the Fourth
lake; lives in Leyden, Lewis county; the houses were
dwelling-houses erected by some past settlers.

William S. Wood sworn. — Knows the prisoner;
knew the Indian killed; was with Chase; did not see
Foster there [on the point] that day; went ashore to
get traps; heard the report of a gun; the Indian was
killed; saw no person in the bushes; heard no noise;
was very busy ; got into the boat about as quick as
usual; was about three or four yards from Waters
when shot; Waters's boat lying still; w^itness was in
his boat when the gun was fired ; did not see Foster
at all up there; saw him at home lying on his bed
after the killing; also before that at my house in the
morning; it was three fourths of an hour from the
time Foster left my house in the morning to the gun
report; not far from 9 a.m. when gun was fired;
about four miles from my house to the point.

For the prisoner. — The counsel for the defence here
offered to show that the premises where the Indian
was killed, were leased on the 4th of May, 1830, by
Caleb Lyon, for himself and as agent, to David and
Solomon Maybee; that the Maybee's went in and oc-
cupied under the lease, until the 26th of February,
1832; at which time David Maybee assigned the lease
for the sum of ten dollars, to the defendant, who took
possession and occupied under said lease until the
alleged murder was committed; at which time his



TRAPPERS OF NEW YORK. 225

right had not expired. Judge Denio said that the
defendant was presumed to occupy in his own right;
and rejected the evidence offered as conventional.

William S. Wood recalled. — Has known the In-
dian eighteen months; was twenty-eight years old as
he said; was a short able-bodied Indian; have hunted
with him.

Counsel. — Did you ever hear this Indian threaten
to kill Foster?

Counsel for prosecution. — -Objected to, on the
ground of irrelevancy.

Counsel for defence. — We urge the evidence, be-
cause it is competent, and goes to establish the fact
of " imminent danger," to the life of Foster; and
whether it sufficently establishes that fact is for the
jury to determine.

Judge Denio said the testimony was inadmissible,
and Judge Dygert was of his opinion; but when the
whole Bench was appealed to, behold! the other three
judges were for admitting it; and for the first time
and probably the last time in his official station, his
Honor found himself over-ruled by the Common Pleas
judges.

Witness. — Has heard Indian at different times
threaten to kiU Foster. " He said Foster was calk*
ing his boat (this was in July) and he had a mind to
go up and tomaha\\k Foster and throw him into the
the river; but his squaw took hold of his coat and
persuaded him to go to his shantee;" he said he had



226 TRAPPERS OF NEW YORK.

a notion to go back; " If I can not do it now," said
he, '' the first time I catch him alone I '11 be the death
of him." This was a year ago last July; Foster
came to witness's house the morning of Sept. 17, to
see how long before witness would be ready to start
up the lakes; witness lives on south side of outlet,
and Foster on the north side; a mile from w^itness's
to Foster's; one and three-fourths miles from witness's
house to the forge; Foster came to the door, (Chase
and witness were eating breakfast). " How long be-
fore you w^ill be ready to go? " asked Foster. '' In an
hour or perhaps less," we answered. Foster turned
round to go out; Indian was standing at the fire-place
and said, " What you call me d — m rascal, d — m
Indian, so much for ? " " Because I am a mind to,"
he answered; the Indian sprung upon Foster, took
him by the neck and drew his knife upon him, which
Foster knocked out of his hand upon the floor; Indian
said, " You old devil, I got you now, I kill you;"
witness then sprang and grabbed the Indian, and
Chase secured Foster's rifle; then witness relieved
Foster, who stepped to the door, saying, " Where 's
my rifle." Indian said, " Where 's my tomahawk ?
d — m old cuss! " Witness said, " You want no toma-
hawk; be peaceable;" said Indian after Foster w^ent
out, " Now Foster wont live to see another Christmas!
I'll kill him, d — m old cuss!" It was an Indian
hunting knife which he carried by his side; in a
sheath in his belt; knife looked as if it had been a



TRAPPERS OF NEW YORK. 227

case-knife, ground off to a peak and pointed; Foster
was cut across his wTist and face in the flesh; Indian
belonged to the St. Regis tribe, a Canada Indian;
British Indian stout and athletic; after Foster went
out Indian said, " I should have killed him then if it
had not been for Chase and witness;" three-fourths
of an hour after this, Indian was killed; witness was
with Indian about six weeks, and left him.

Cross-examined. — Did not tell Foster the last threat
at witness's house; about a quarter of an hour after
this they started; were about half an hour in walking
up to forge; Waters w^ent with witness and Chase;
were not long at forge; found others at forge; about
twenty or thirty minutes at forge, can't say precisely;
took perhaps twenty or thirty minutes to go to point;
never told Foster of any of the threats; witness and
Chase and Indian were going trapping together;
Chase was not in first partnership of witness and
Indian.

Counsel for defence. — Object to evidence of de-
fendant's confessions, as opening the case anew after
the prosecution had rested; overruled; witness went
to Foster's house, and Foster went back with them
[to the lake to get the body] ; did not hear Foster
say any thing.

JuDAH C. Marsh sworn. — Was at Foster's between
the 15th and 20th of August, a year ago; Foster
asked Indian for seventeen shillings, pay for sundry
articles; Indian offered to pay a part but not all:



228 TRAPPERS OF NEW YORK.

Foster said, " I 've let ^^ou have articles to keep you
from starving; Indian meal and potatoes which I
have carried on my back seventeen miles; " Indian
offered to pay a part; " why not pay the whole? I've
dealt with you like a brother; I 've heard you threat-
ened to take my life; you came once where I was
fixing a boat (I 've been informed) on purpose to kill
me; you came once to my house with your rifle load-
ed and called me to the door to kill me; " "yes;"
" why do you want to hurt me ? I never wanted to
hurt you; I would as soon kill a white man as an In-
dian; I would not kill you for a million of worlds; "
Indian asked how soon he would come to the Seventh
lake; said "You must never come there; if you do
you never come back again alive; we're now on
Brown's tract and out of the way of all law; if you
kill me you kill me; if I kill you I kill you; " Foster
said, "I agree to no such thing; am afraid of your
sly Indian way of fighting; I have heard that you
threatened to kill several at Lake Pleasant; and a
man by the name of Lyon; I shall complain of you
and have you taken care of; I am afraid of my life;"
Indian said, " Complain and be d — d, me meet you; "
Indian threatened to kill David Foster (son of defend-
ant) if he came to the Racket lake; Indian started to
the door, took up his tomahawk; prisoner stepped
into the house, and Indian let his tomahawk drop
after prisoner was out of sight.

Cross-examined. — Is a son-in-law of defendant;



TRAPPERS OF NEW YORK. 229

resides at Auburn j went there last July; don't recol-
lect the amount of flour, &c., that Foster called over;
when items were mentioned once he said it was cheap
enough; Indian spoke tolerably good English; some-
broken; witness staid but eight or ten days on tract
after this; David left after October; witness advised
defendant to come away; he said he should come as
soon as he possibly could; for he considered his life
in danger every moment; Seventh lake is some fifteen
miles from Foster's; Indian had a squaw and two
children; squaw went back to St. Regis; defendant
and wife, son and son's wife, witness and his wife,
and Johnson were in the house, and three children,
two of David's and one of witness's.

Direct testimony resumed. — Foster said, " as soon
as I can get the old lady away, I shall go;" she was
rather feeble; she was not able to go with witness;
wanted to wait till sleighing; David's wife was un-
well; a numb palsy affection.

Abner Blackman, sworn. — Knew the Indian named
and Foster; Foster w^as narrating a story about In-
dian's coming to his house; he said the " Indian had
loaded his rifle and come to his door to shoot him;
Indian said it was well for him that he was not at
home, as he came to shoot him; he would have put a
bullet through him; he (Foster) would have seen his
God in two minutes;" witness told him that the In-
dian had told him the same thing, as to his coming



230 TRAPPERS OF NEW YORK.

to his house to shoot him; has heard the Indian
threaten the life of Foster.

Cross examined. — Had a conversation with Foster;
he said the Indian had threatened to kill him a good
many times; and indifferent w^ays; he had spoke of
not being afraid of Indian, but he was really afraid,
and looked behind every old log and bush expecting
the Indian ready to kill him; he trembled as he
walked; said he would have been glad to have got
away, if he could conveniently; but his property and
family were there; his son's wife unwell, and could
not be moved then; he said like this, "he had a gun
that had always told him the truth, and he had pushed
a bull off the bridge;" he said they came down to his
house for him to go up; he went, and found Waters
in the canoe; no one dared to take hold of him; he
took hold of him and pulled him up; did not tell him
how the Indian got killed, nor that he killed him;
was talking about hunting and killing deer when he
said he pushed the bull oiF the bridge; and, perhaps,
about the Indian also; were not talking about the
Indian when he said his gun always told the truth;
has seen Indian at witness's house; heard Indian say
he belonged to St. Regis tribe; witness lives in Greig,
Lewis county; conversation in that town on witness's
way to and from HerreshofF's; Greig is nineteen or
twenty miles from HerreshofF place.

Joshua Harris, sworn. — Lives in Grieg, Lewis
county; was a magistrate in September last. The



\



TRAPPERS OF NEW YORK. 23 1

defence offered to prove by this witness that Foster
applied to him to get a warrant, and complained that
he was in fear of losing his life; that the Indian had
threatened to kill him repeatedly; had intimated
several times that Indian had threatened to kill him.

Witness. — Has conversed with Indian; has heard
him say repeatedly, he would kill Foster; " if Foster
goes up to Fourth, Fifth, Sixth or Seventh lake again,
he will never return alive if I can catch him there;"
the Indian roused up, " Foster, how many deer you
kill ?" " Don't know." " D— m him, I'll pile him up
with my deer by-and-by;" at another time in harvest,

he said, '' I'll serve Foster, d d old cuss, as I have

a number of the d d Yankees, I Avill take his life,

or butcher him;" the threats were often repeated; he
would rave against Foster.

Cross examined. — Indian was there a year ago last
October, and often, until killed, shantied [lived in a
shantee or hut] on witness's farm, forty rods from
house, about two months; was about twenty-eight
years of age; has conversed with Foster since the
death; he intimated as much as though he had killed
the Indian; said " he was not guilty of shedding inno-
cent blood ; what he had done w^as done in his own
defence;" he was talking about his being taken for
killing the Indian, and his trial.

Asa Brown, sworn. — Knows Foster; knew Indian;
has heard the Indian threaten the life of Foster; In-
dian came to witness's house in Greig, Lewis county,



232 TRAPPERS OF NEW YORK.

in the fore part of August, a year ago; between the
first and twentieth; he said he did not want to say-
much about old Foster; he d d old cuss; Mrs.

Foster good old w^oman; he went on and stated how
well she had used him, and squaw, and little pap-
pooses; then he said, after the favors, " old Foster,
d — m old cuss, want to make me pay for it;" he said
he should not; he meant to kill old Foster; " me get
good rifle; me shoot straight; me put ball right
through the heart." I said, " Peter, you m.ust not talk
such language as that, for you are liable to be had u^
and confined." " Me care not a d — m for thai ; no
law on Brown's tract." Said T, if there is no law on
the tract, there is here, and will put you where the
dogs wont bite you. "Me no care for dat; me kill
d — m old cuss." Witness advised him to peace with
Foster. "Mrs. Foster use me well; good woman;
Foster d — m old cuss; put ball through his heart."
Never saw" him alive after that.

Cross examined. — Saw" Foster about two weeks
after this, and told him what the Indian said; Foster
replied, " If the Indian would come in sight, and
shoot quicker than he did, then he (Foster) would be
killed; if not, not; he had a rifle that never told a lie;
and said he had heard a great many such threats from
the Indian, and felt in danger of losing his life when
traversing the forest for his traps: he said his eyes
were continually on the watch, for fear the Indian
was skulking about to shoot him;" has seen Foster



TRAPPERS OF NEW YORK. 233

but once since the Indian's death; heard no confession
of killing.

WiLLARD JoHxNsoN, swom. — Knew Foster and In-
dian; resided on Brown's tract; has heard Indian
threaten Foster to kill him; the first difficulty was
about a boat; Foster said, " you should not do so; if
you want a boat, ask for it." Indian said, " d — m
old Foster, I'll put the ball there," pointing his finger
in center of his forehead. The next, Foster had let
him have things, and Peter refused to pay; about two
or three months after, can't say exactly, Foster said,
" this is the usage I get, I backed in these things and
paid my money for them." Waters flourished his
hatchet; Foster went in quick, and if he had not, he
would have struck the hatchet between Foster's
shoulders. Again, the morning before Waters was
shot, witness was at his own place, a mile from Fos-
ter's, when he saw Waters; talked with him; said
"go along with me and make peace with Foster;"
" old Foster I will kill, if I can get him out to shoot
him. I'll butcher him in his bed; I know which side
of the bed he lays; and if you hear anything there,
don't you come nigh, you may get hurt; old woman
is good; I wont hurt her; but you must not come nigh
me." [The Indian requested Johnson to tell Mrs.
Foster to keep her own side in the bed.]

Cross examined. — Thinks he told it to Foster the
night before the killing; every time witness saw Wa-
ters, he w^ould enquire when he was goino^ home; and



234: TRAPPERS OF NEW YORK.

witness did not know what to make of it; an Indian
is an Indian; Foster went to swear the peace; Indian
was a crabbed sort of a fellow; had no conversation
with Foster since Indian was killed.

The counsel for the prisoner offered to prove threats
of the Indian to kill Foster, by several other persons,
but was overruled, and the defence rested.

For the prosecution.

WiLLiSTON Tyler, sworn. — Was at Foster's the
evening before killing; he said the Indian had threat-
ened his life; but he was not afraid of the d d

black blood, unless it were by secret revenge; he said
if he could catch him out any where, he would put
him where the dogs would not bite him; they were
talking about his complaining against Indian; he said
it would be of no use: he would go into the woods
before they could take him; but if he should catch
him out, he would put him where the dogs wouldn^t
bite him; in going back up to the point where killed,
witness asked the question whether he was standing
or sitting the moment he was shot; Foster replied,
" Sitting down; why I say he was sitting down is,
that they always did sit down, and never stand up in
a bark canoe;" Foster went to the place where In-
dian was killed; they covered up Indian; went back
next morning and re-covered it [the grave] ; might
have been four hours from time witness saw Foster
last to killing.

Cross examined, — Wood told Foster, " I've bad



I



TRAPFEKS OF NEW YORK. 235

news to tell you; Peter's dead;" Foster asked, " Did
he die in a fit ?" Wood informed Foster that he was
shot and at what place, in answer to his inquiry; pre-
sumes they generally sit in a bark canoe.

David Chase, sworn. — Don't remember every item
of the scuffle; they were fixing to go away that morn-
ing; Foster came in his house; said " Good morning;"
wutness was busy packing up things to go away;
Foster was eight feet from a small fire place; witness
about ten feet away, packing; Indian spoke, but don't
know what he said; Foster answered, but don't re-
member what; Indian pitched upon him and grabbed
Foster; witness rose up and took Foster's rifle and
set it up side of the house, about twelve feet from
where they clenched; got back and Indian had thrown
Foster; witness got his right hand, and Wood his
left hand, and told Indian to let loose; Indian rose up;
one called for his tomahawk and the other for his
rifle; Foster went out, and witness said stay and get
your things; he did so; witness went into the house,
got his hat and rifle, and gave them to him; after this
Foster said, " How long before you will be along ?"
As witness turned to go back, he saw blood on his
own hand; this was pretty early in the morning; it
was near noon when the shooting happened; between
three and four hours; Indian, Wood and witness were
going trapping.

Cross examined. — Did not see a knife; as they took
them apart, Indian was talking fast; and when he



236 TRAPPERS OF NEW YORK.

came back he was cooled down; Wood got to Indian
and Foster first; had no conversation w^ith Foster
since.

Nelson Stimpson, sworn. — Saw the Indian clench
Foster; Foster w^ent into the house and spoke to Chase
and Wood; asked them what time they w^ould be up
the lake; Indian " How many times more will you

call me d d liar ?" Foster, " Do you want to

pick a quarrel with me this morning, you black son
of a bitch ?" The Indian sprang and clenched him,
and jammed the door too, and w^itness saw no more of
it; saw Foster as he came out; he told witness to go
down to the forge; four hours from time of scuffle to
killing; had some conversation with Foster coming
from tract next day.

Francis E. Spinner, sworn. There was some con-
versation when Foster came down from Martinsburg;
he said something; don't think he said he killed him;
witness advised him to say nothing; he said there
would probably be no dispute about the facts; there


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