University of Virginia Library

CHAPTER IV.

ARRESTED AND ARRAIGNED.

J. Samuel McCue was arrested at 5:20 P. M. Wednesday, September
7th, on a warrant charging that he "did wilfully, deliberately and
premeditately kill and murder Fannie C. McCue, his wife, in violation
of a statute of Virginia."

The arrest was made by officers Dan C. Grady and A. N. Eubank.
These officers served the warrant sworn out by Commonwealth's
Attorney Frank Gilmer, and issued by Acting Police Justice Archibald
D. Dabney, who was sworn in by Police Justice Edward O. McCue,
who naturally desired to avoid the performance of the unpleasant
duty of issuing a writ for the arrest of his own brother.

At the time of the arrest the Coroner's inquest was proceeding in
the Council Chamber at the City Hall, and an impatient crowd was
gathered there. There was no expectation of an arrest before the
jury's verdict was rendered, and McCue was in jail some time before
the news spread over the city.

The occurrence was not a surprise to the public, for suspicion
pointed to McCue so positively that the wonder was that he escaped
arrest so long. The truth is, he was practically, if unconsciously,
under restraint for twenty-four hours before Officers Eubank and
Grady took him into custody.

McCue was in his bedchamber—the room in which the tragedy occurred.
Officers Grady and Eubank entered the room unaccompanied.
Mr. Grady handed the innocently-looking paper to the accused without
a word.

McCue read the warrant calmly. He then turned to the officers and
said: "Do your duty, gentlemen; I do not blame you."

Officer Grady then advanced to him and said: "I must search you,
sir."

"Of course," he answered, and extended his arms and permitted the
officer to make an examination. No weapon was found on his person.

The accused then said: "By the grace of God I will come out all
right. Do your duty, gentlemen."

McCue descended the steps to the sitting room on the second floor
and said to his children, who were grouped in that room: "Do not be
uneasy. I am not afraid of the consequences if I get justice. I have
committed no crime."

When he kissed his four little ones good-bye, he cried with them in
a frenzy of grief.

McCue stepped into a carriage with Alderman A. D. Payne. He was
also accompanied by his brothers and C. H. Moore in another carriage,
the police officers walking on the pavement opposite the accused.
McCue was driven to the city jail, to whose cells he had committed
many prisoners during his service as Police Justice. Few knew of
the arrest, but the procession attracted the attention of the loiterers
on the streets, and by the time it reached the jail a small crowd was
following the carriages. The prisoner paid no attention to the small
crowd that had assembled at the jail entrance. When Deputy Jailer
Nat. Martin opened the great gates the accused entered and the police
dispersed the idlers.

The arrest of McCue was followed by preparations for his protection,
and even by suggestions to remove him to another city, not
that there were any very significant evidences of a purpose to resort
to mob methods, but out of abundant caution. The absence of the
Monticello Guard, which was at the Manassas encampment, was
looked upon as a possible encouragement to the lawless, but a guard
of twenty-five men was placed within the jail inclosure with instructions
to shoot to kill if any attempt at violence was made. These
men were under City Sergeant C. W. Rogers. Governor Montague
kept in touch with the situation.

For probably as much as a week after the arrest there was talk of
lynching. At one time it was said many men gathered in the neighborhood
of the Monticello Wine Company's cellar, on the northern
boundary of Charlottesville, some three hundred yards from the home
of the accused, and about the same distance from the jail in which he
was confined. Nothing was done, it was said, because there was no
one willing to lead—and well it was so, for the people of the town
were opposed to any unlawful acts, and their sentiment was behind
the orders given the guards at the jail not to trifle with lynchers, but
to use their muskets with effect.

On one occasion the streets were suspiciously full of people to a
late hour of the evening, and there were incendiary remarks by some
who realized quite well the seriousness of doing more than talk, but
the sturdy common sense of the people prevented any foolishness.

The newspapers kept the public informed of the movements of the
accused, his attorneys, the detectives, and all others who afforded interesting
copy. Thus it was known that McCue was comfortable in
his cell; that he enjoyed fare from his own table; that curtains

screened him from the scrutiny of other prisoners; that he had a Bible
on his table and his wife's picture above it; that he had expressed
poignant grief and a willingness to give every cent he possessed to
know his wife was alive or had died a natural death, and a hundred
other things, the publication of which was demanded by the curiosity
and craving of the people who buy and read newspapers.

In due season the coroner's jury returned a verdict charging the
prisoner with the murder of his wife, and then there was a quieting
down of the excited feeling which had given some occasion for uneasiness.
Many regarded the accused as doomed from that day, feeling
confident that if his neighbors who conducted the inquest were
convinced, after slow and deliberate gathering and weighing of the
evidence, there could be no reasonable doubt of his guilt.

The Corporation Court for September convened, and McCue was
duly indicted. The members of the jury were James F. Harlan (foreman),
Colonel T. S. Keller, M. C. Thomas, Henry M. Gleason, B. F.
Dickerson, H. L. Lyman, Adolph Russow, G. B. Goodyear and W. T.
Martin.

On the 20th of September the prisoner was brought into court to be
arraigned. It was his first appearance after his arrest on the 7th. If
any one looked for a defiant man, the spectacle was not realized. The
ex-Mayor entered in the custody of his jailers, and walked to a seat
at the bar, into which he sank, having cast but a fleeting glance at
the hundreds who crowded the room and fixed their gaze on him in
absolute silence.

The ordeal was terrible, and the unhappy man buried his face in
his handkerchief and gave way to weeping that was piteous to see.

His brother, Edward O. McCue, sat silently by his side, his young
son, J. Samuel McCue, stood outside the railing near a post in the
crowd, and the counsel for the defense, Messrs. Daniel Harmon, John
L. Lee and G. B. Sinclair, were ranged in front at the trial table.
Next to them sat the two prosecuting attorneys, Frank Gilmer and
Richard S. Ker. For a few minutes there was no sound in the court
room except the audible sobbing of McCue, and every eye in the building
witnessed his complete surrender to his emotions.

Commonwealth's Attorney Frank Gilmer rose and requested that
McCue be arraigned, stating that he hoped a speedy date would be
set for the trial, as the Commonwealth was now ready to go on with
the case. There was an interval of waiting during which the counsel
for the defense consulted over a typewritten document produced by
Mr. Harmon.

After a few minutes of discussion, McCue was touched on the arm
by Mr. Lee. He at once took his handkerchief from his face, pulled
forward his chair, and in a business-like way began an examination
of the paper. After carefully reading it over and exchanging a few

words with his lawyers, McCue, with perfect coolness and a firm hand,
signed his name to the document.

The paper was a plea to quash the indictment of the grand jury
against McCue on the ground that Mr. Henry L. Lyman, one of its
members, was not a bona fide resident of the city. Mr. Gilmer at
once objected, and moved that the paper be excluded. Mr. Harmon
asked for a jury to try the question of fact as to whether Mr. Lyman
was a citizen of Charlottesville, and the court took the motion under
advisement until 10 o'clock the following morning. The motion was
granted and the case submitted to a jury consisting of Oscar Hawkins
(foreman), L. A. King, J. J. Leterman, S. F. Florence, E. F. Markwood,
E. T. Jessup, W. T. Tyson, Jr., Mayanadier Mason, Quintus
Tinder, M. E. Norris, and J. P. Ellington.

The room was crowded, as on the two preceding days, and the
utmost interest was manifested in the proceedings. McCue came in
attended by his jailers and took his customary seat near his counsel,
with his brother, Edward O. McCue, at his side.

The decision of the jury was that Mr. Lyman was eligible, and
court adjourned to the following Monday, September 26th. On that
day Captain Micajah Woods made his first appearance in the case.

When McCue engaged as his counsel Daniel Harmon and Walker &
Sinclair, of Charlottesville, and John L. Lee, of Lynchburg, it was
conceded that he had as strong an array of legal defense as it was
possible to bring together in Virginia. The Crawford family had
employed Captain Richard S. Ker, of Staunton, to aid Commonwealth's
Attorney Frank Gilmer, upon whom had devolved the difficult
undertaking of collecting evidence and shaping the prosecution. With
all his energy, skill and experience to aid him, the task was too much
for Mr. Gilmer, or any one man. That he did his share with conspicuous
fidelity, everybody knows, and he came out of the case with augmented
reputation. That Captain Woods was asked to take up this
disagreeable position and duty, is no reflection on the Commonwealth's
Attorney; nor was there any reflection on Captain Ker, one of the
brightest lawyers of Virginia. Captain Ker's recognized ability was
fully sustained in his able conduct of the case against Kennedy and
his associates for train-wrecking and murder in Augusta county some
few months ago. He is held in high respect by the State attorneys,
and will add to his high record in the present case. But with Captain
Ker at Mr. Gilmer's side, it was still two to one. This the people of
Charlottesville felt was not quite right, and they brought to bear upon
Captain Micajah Woods, the distinguished Charlottesville lawyer
(thirty years Commonwealth's Attorney of Albemarle county), who
had already refused to enter the case for a fee, a pressure which
has, probably, no parallel in the legal history of the State. The following

petition, signed by hundreds representing all walks of life, was
presented to him:

"We, the undersigned citizens of Charlottesville, believing that the
good name of our city and State may be compromised if the Commonwealth's
Attorney is left without adequate aid in the prosecution of
the person responsible for the recent terrible crime, appeal to you to
afford to law and order the support of your talent, learning and experience.
We believe that your entrance upon the case will afford a
measure of security against popular resentment."

After a careful investigation of the evidence against the accused,
which convinced him of his guilty connection with the death of his
wife, Captain Woods responded to the popular wish in the following
card, printed in the Charlottesville Daily Progress, September 26th:

"In response to petitions signed by nearly a thousand citizens of
the city of Charlottesville, and the county of Albemarle, and in deference
to appeals made to me personally by scores of men and women
of the community, I have decided to aid Mr. Gilmer and Mr. Ker in
the management of the case of the Commonwealth vs. McCue.

"No one would be more delighted than I to see the defendant in
this case honorably relieved and cleared of the terrible crime with
which he is charged, and I assume this responsibility with the sole
purpose of seeking fearlessly for the truth, regardless of the personal
inconvenience and sacrifice which will result to me, and in spite of the
very disagreeable duties which will devolve upon me.

"The brutal murderer of Mrs. McCue, whoever he may be, deserves
no sympathy, and should be executed under the law. I think the case
could be safely left in the hands of the able attorneys who represent
the Commonwealth, yet I feel it to be my duty to a people who have honored
and trusted me since my youth, to yield to their solicitations,
and to do all I can to see that the ends of justice are reached and
that the majesty of the law may be maintained."

At 10 o'clock, on the morning of September 26th, when hundreds
of spectators crowded the ancient court-room, from whose walls looked
down the portraits of dead legal celebrities, Commonwealth's Atu
ney Gilmer arose and said: "If your Honor please, I now ask that the
prisoner be arraigned."

McCue arose, and with head bowed and handkerchief held to his
face, heard the indictment read without visible emotion. Not once
during the reading of the paper which accused him of the murder of
his wife, did he raise his eyes from the floor. He stood with his right
arm across his breast, his left hand and the handkerchief it held
ranging back and forth between chin and eyes. At the conclusion of
the reading, McCue looked up at Clerk Duke, and in a quiet tone said,
"Not guilty."

The reply to the question of the court, "How will you be tried?"

was in such a subdued voice as not to be heard beyond the narrow
circle of those within the railing.

After the arraignment and pleading of the accused, Mr. Harmon,
for the defense, arose and addressed the court. He denied that it
was the purpose of McCue or his attorneys to delay the trial one day
beyond the time when an impartial jury could be obtained. He was
very hopeful of the result, provided such a jury could be obtained.
He had intended to ask for a change of venue, but upon consultation
with the counsel for the Commonwealth, had decided to ask only that
a jury be summoned from a remote part of the State. Repeating
that he desired a speedy trial by an impartial jury, he asked that the
trial be set for the second day of the next term of court.

The lawyers for the Commonwealth concurred in this request, and
his Honor very promptly ordered a continuance until Tuesday, October
18th.

Judge Morris directed City Sergeant C. W. Rogers to summon from
Petersburg a venire of fifty men.

When court convened on the 18th of October, the veniremen from
Petersburg were present. So, too, was the prisoner, attired neatly,
as has always been his wont, and apparently pleased to have his children
about him. His only daughter, Ruby, probably thirteen, nestled
in his lap and wept.

Seven jurors were selected from the talismen present. Sergeant
Rogers was sent to Richmond, and out of the twoscore and more
rounded up there, one eventually sat on the jury. Fredericksburg,
where the third draught was made, yielded two, and Warrenton two.

The following is a list of the jury, as finally empanelled and sworn,
and their occupations:

Shelton Chieves, Petersburg; peanut factory.

James B. Prentis, Petersburg; manager tobacco factory.

John Y. Stockdell, Petersburg; hardware merchant.

A. S. Johnson, Petersburg; merchant.

A. J. Saunders, Petersburg; merchant.

W. B. Spiers, Petersburg; engineman.

T. F. Parsons, Petersburg; wholesale feed dealer.

W. G. Fewell, Warrenton; book-keeper.

L. E. Holmes, Warrenton; farmer.

Nelson C. Decker, Fredericksburg; agricultural implements.

S. B. Quinn, Fredericksburg; book-keeper.

John A. Traylor, Richmond, not in business now.

Soon after the jury was completed it looked very much as if there
would be a delay, due to the fact that Daniel Harmon, the leading
counsel for the defense, was found to be too unwell to engage in the
trial at the time, or for at least thirty days. Mr. Lee, his colleague,

said that all of them depended much upon Mr. Harmon for both law
and fact, as much had been left to him, and he had done a great deal
of work. The prisoner, he said, was anxious to get the trial behind
him, and the lawyers had business reasons for desiring a speedy termination,
but they felt that they should ask for a postponement.

The matter was not concluded when court adjourned for the day.
On reassembling Mr. Lee withdrew his motion for a continuance, as it
was definitely decided by Mr. Harmon's physician that he could not
go into the case now, or at any time in the near future. In his place
Mr. J. Tinsley Coleman, of Lynchburg, had been engaged.

The trial had now in its progress reached the point desired by the
eager visitors to the court-room. There had not been lack of spectacular
circumstances. The tears of the accused man, the pathetic
hovering near him of little Ruby, the worst bereaved of the four motherless
children, had touched the hearts of all who saw, and men and
women, whatever they may say, find a kind of pleasure in pathos. To
the ladies in the galleries there had been a novelty in their first view
of the court of justice in the transaction of its solemn business;
something piquant in the occasional evidences of the survival of obsolete
poems, as in the sing song "Oh yes, oh yes." (The hardly recognizable
oh yez, coming down from the days of the Normans in England)
with which the tipstaff of the court, Mr. Rogers, opened the
proceedings of each session.

But this had been going on for some time, and the spectators who
hustled each other in the crowded court-room wanted a change of
program. There was a story to be told to the jurors by half a hundred
witnesses, and they wanted to hear it. They anticipated tilts between
the lawyers, and they expected these would be worth while, since the
gentlemen were giants in their fields. A new thing under the sun in
Charlottesville was the crowding of ladies of the best classes of society
into the stuffy, dusty galleries of the old court-house, which, built by
Virginians of the olden day, was not made for ladies. True, guided by
Judge Morris, wise and skilful jurist as he is, there was little if any
danger that anything would occur to offend even the most sensitive
of our good women.