53 N.Y. 164 (1873)
On January 6, 1872, James Fisk, Jr., one of the most notorious “robber barons” of the Gilded Age, was fatally shot in the luxurious Grand Central Hotel by Edward S. “Ned” Stokes, Fisk’s former business partner and rival for the affections of showgirl Josie Mansfield. The scandalous love triangle and killing of a Wall Street titan caused a national sensation, and the ensuing trial was the most interesting and exciting of the era.[1]
“Diamond Jim” Fisk
Born in Vermont in 1835, “Diamond Jim” or “Jubilee Jim,” as Fisk was variously known, was a larger-than-life character known for sporting diamonds, perfumed hair, a waxed mustache, velvet coats of peacock colors and fat cigars. Fisk rose from modest beginnings, leaving school early to become a traveling peddler of household goods before joining the circus as a teenager and eventually hiring on as a salesman with a large dry goods firm. Fisk made his first fortune during the Civil War, selling textiles to the Union Army and, reportedly, smuggling Southern cotton into the North.[2]
Following the Civil War, Fisk joined forces with financiers Daniel Drew and Jay Gould as they fought Cornelius Vanderbilt for control of the Erie Railroad. The trio frustrated Vanderbilt’s efforts to corner the market on Erie stock by conspiring to issue millions of dollars of fake Erie stock certificates. They brought the corrupt Boss Tweed into the conspiracy and made him a member of the railroad’s board of directors. Tweed in turn successfully procured legislation in Albany legitimizing the spurious stock certificates and ensured that Gould and Fisk benefitted from favorable court rulings issued by judges who owed their positions to Tweed. In 1869, Fisk served as the front man for Jay Gould’s failed attempt to corner the gold market, which led to the “Black Friday” financial crisis that ruined many investors.
Josie Mansfield and Ned Stokes
In 1867, Fisk, who had been married since 1854, met Josie Mansfield, a voluptuous beauty and self-described actress. Mansfield became Fisk’s mistress and he “installed her in one of his houses in West Twenty-third street and put her in possession of many of the secrets of his financial operations.”[3] In 1869, Fisk introduced Mansfield to Ned Stokes, a close friend and business partner from a well-to-do family. Though married with children, Stokes was a debonair gambler whose “cold eye, impassive manner, physical beauty, and influence over women distinguished him among the beaus of the town.”[4] Stokes and Mansfield soon become romantically involved. Not coincidentally, Fisk and Stokes had a falling out over their business affairs. Mansfield decided to end her relationship with Fisk and asked him for $25,000 that he purportedly had invested for her benefit. When Fisk refused the request, she threatened to publish Fisk’s love letters unless he made a substantial payment. A series of lawsuits and countersuits followed, including the issuance of arrest warrants for both men.
Shooting in the Grand Central Hotel
A libel suit by Mansfield against Fisk came to trial in November 1871, driving “the gossip mills of New York City and across the state.”[5] On January 6, 1872, Stokes testified at trial that he never had an improper relationship with Mansfield. Later that day, he was having lunch at Delmonico’s when Judge Barnard informed him that a grand jury had returned an indictment against him for blackmail of Fisk.[6] Stokes immediately hailed a cab and found his way to the Grand Central Hotel. When Fisk arrived at the hotel, Stokes pulled out a pistol and fired two bullets into Fisk’s abdomen and upper arm. Stokes tossed the pistol and attempted to flee the building but was tackled by several porters who turned him over to the police. Fisk, still conscious, identified Stokes as his shooter before dying of his wounds the next morning.
The First Trial
Stokes was indicted for murder and confined in the Tombs pending trial. His cell was “handsomely furnished” at his own expense, with rich carpets, papered walls hung with fine pictures, a new mattress and many small luxuries.[7] The trial, which took place in the New York County Court of Oyer and Terminer before Judge Daniel P. Ingraham, Stokes hired some of the leading lawyers of the day, including former New York County District Attorney John McKeon and former State Attorney General Lyman Tremain. The prosecution was led by District Attorney Samuel Garvin, assisted by Fisk’s private counsel, William Beach and William Fullerton.
The People charged that Stokes was guilty of first-degree premeditated murder. Stokes’s primary defense was that he acted in self-defense. The defense asserted that he entered the hotel only because he saw a woman at a window whom he thought he knew. When he realized that he was mistaken and was leaving the hotel he unexpectedly ran into Fisk, who had previously threatened to kill him. Stokes claimed that Fisk drew a pistol and, believing that Fisk intended to kill him, he drew his own pistol and shot Fisk twice. The first trial lasted 22 days and resulted in a hung jury.
Conviction and Death Sentence
Stokes was retried in December 1872 before Judge Douglass Boardman. John R. Dos Passos, father of the famous author, joined the defense team. The prosecution was led by newly-elected District Attorney Benjamin Phelps, Assistant District Attorney John Fellows and Mr. Fullerton. The arguments and evidence presented at the first trial were largely repeated at the second, but this time the jury returned a verdict of first-degree murder. On January 6, 1873, exactly one year after Fisk was shot, Stokes was sentenced to death by hanging. Judge Boardman expressed his regret:
I am sad over your unhappy fate – so young, so attractive in person, with so many fountains of joy yet untasted. Still greater is my sorrow to realize the unmerited anguish you have brought upon your family and friends. It is a frightful legacy to leave to a family – a specter that death alone can banish.[8]
The Court of Appeals Reverses and Orders New Trial
The General Term of the Supreme Court for the First Department affirmed the conviction even though it found that Judge Boardman had erred in his charge to the jury. The court found that any prejudice to the defendant was insufficient to warrant a reversal. The Court of Appeals disagreed and in an opinion by Judge Martin Grover, the judgment of conviction was unanimously reversed, the death sentence lifted and a new trial ordered.
Judge Grover rejected the defense’s challenge to the constitutionality of a jury selection statute enacted months before the trial. The new law provided that a prospective juror who had formed an opinion about the facts of a criminal case or the guilt or innocence of a defendant could not be the subject of a challenge for cause if he declared under oath that he could still render an impartial verdict and the court was satisfied that the proposed juror’s views would not influence his verdict.
Judge Grover next addressed the trial court’s exclusion of defense evidence showing that Fisk had made violent threats against Stokes, including “I go prepared for him all the time; so sure as my name is Jim Fisk I will kill him.” The court concluded that such statements should not have been excluded as they were relevant to Stokes’s claim of self-defense and his state of mind upon encountering Fisk at the hotel.
The key issue on appeal, however, was Judge Boardman’s instruction to the jury:
The fact of the killing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfy you that it was not murder, which the law would imply from the fact of killing under the circumstances, in the absence of explanation that it was manslaughter in the third degree or justifiable homicide; because, as I have said, the fact of killing being conceded, and the law implying motive from the circumstances of the case, the prosecutor’s case is fully and entirely made out, and therefore you can have no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to satisfy you that it was justifiable under the circumstances of the case.
According to Judge Grover, the jury instruction, stating that the prosecution’s case was entirely made out by the fact of the killing, impermissibly shifted the burden of proof to “the prisoner to show that it was not murder but manslaughter, or justifiable homicide,” and effectively relieved the prosecution of having to prove all of the facts necessary to show an intent to commit premeditated murder. While such an intent may be inferred from the act of killing, “this, in principle, is an inference of fact to be drawn by the jury, and not an implication of law to be applied by the court.”
Judge Charles Rapallo issued a concurring opinion strongly condemning the challenged instruction.
It is a cardinal rule in criminal prosecutions that the burden of proof rests upon the prosecutor; and that if upon the whole evidence, including that of the defence as well as of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt. The jury must be satisfied on the whole evidence of the guilt of the accused; and it is clear error to charge them, when the prosecution has made out a prima facie case and evidence has been introduced tending to show a defence, that they must convict, unless they are satisfied of the truth of the defence. Such a charge throws the burden of proof upon the prisoner and subjects him to a conviction, though the evidence on his part may have created a reasonable doubt in the minds of the jury as to his guilt. Instead of leaving it to them to determine upon the whole evidence whether his guilt is established beyond a reasonable doubt, it constrains them to convict, unless they are fully satisfied that he has proved his innocence.
Judge Rapallo considered the error highly prejudicial and not one to be overlooked.
That so vital an error as one which should or might mislead the jury on the question as to the party on whom the burden of proof rested, could come within the category of those which could not possibly prejudice the determination of the case, is utterly inadmissible. Nothing short of an unequivocal retraction of that portion of the charge could have removed from the minds of the jury the impression which it was calculated to produce. It was the concluding portion of the charge, and afforded the jury a simple rule for their guidance in their consultation.
The Third Trial
The third trial took place in October 1873 before Judge Noah Davis, the same jurist who had presided over Boss Tweed’s criminal conviction.[9] The third trial, overshadowed by the severe financial panic that had taken hold in September 1873, drew far less attention. The jury returned a verdict of manslaughter in the third degree and Stokes was sentenced to four years in prison.[10] He served three years before receiving a medical discharge. Stokes operated a hotel after leaving prison. When he died in 1901 his obituary described him as “a haunted man” who lived his remaining years fearful, paranoid and chronically ill from kidney disease.[11]
Mansfield’s Later Years
Josie Mansfield unsuccessfully sued Fisk’s widow for $200,000 which she claimed Fisk owed her. In July 1872, shortly after Stokes’s first trial ended in a hung jury, she was called to testify at Judge Barnard’s impeachment trial in Saratoga Springs. Her appearance generated “extraordinary curiosity” among “Senators, Judges, as well as ladies” eager to see a woman of “world-wide reputation.”[12] Mansfield testified that Fisk, Gould, Tweed, Barnard and many leading businessmen and public officials, including judges and attorneys, were in the habit of meeting at her 23rd Street residence, and that Barnard had once received a large cash gift for his child from Fisk and Gould. In 1891, Mansfield married Robert Reade, an American lawyer living in London who told a reporter that she was the only person who could save him from drinking. In 1897, she divorced Reade after he was declared insane for excessive drinking and abuse of chloral, a sedative. Mansfield later lived quietly in Boston, Philadelphia, North Dakota and, finally, Paris, where she died in 1931.[13]
[1] “Two Murder Trials – Thaw and Stokes – The Difference,” New York Times, March 24, 1907; H.W. Brands, The Murder of Jim Fisk, Anchor Books, 2011, at 179.
[2] Id. at 10-11.
[3] “Edward S. Stokes Dead,” New York Times, Nov. 3,1901.
[4] New York Times, March 24, 1907.
[5] Brands, at 80.
[6] New York Times, Nov. 3, 1901.
[7] “Stokes in the Tombs,” New York Times, Jan. 11, 1872; “Edward S. Stokes: Conduct of the Condemned Murderer in the Tombs, New York Times, Jan. 8, 1873.
[8] Brands, at 192.
[9] “The Trial of Stokes,” New York Times, Oct. 16, 1873.
[10] “Waiting for the Verdict,” New York Times, Oct. 30, 1873.
[11] New York Times, Nov. 3, 1901.
[12] “Ms. Josephine Mansfield Tells Who Visited Her House,” New York Times, July 24, 1872.
[13] “Fisk Murder Recalled by Death,” New York Times, Oct. 29, 1931.