The Journal of San Diego History
SAN DIEGO HISTORICAL SOCIETY QUARTERLY
Fall 1987, Volume 33, Number 4
Thomas L. Scharf, Editor

Four Hundred Dollars Worth of Justice

The Trial and Execution of Indian Joe, 1892-1893

by Clare McKanna, Jr.
Department of American Indian Studies San Diego State University

"It Cost $400 to Convict Indian Joe of the Otay Murder."
San Diego Union December 6, 18921

Images from this article

This headline heralded the conclusion of a brief trial which ended with the conviction of José Gabriel, aka Indian Joe. A reading of reports in the San Diego Union would lead one to believe that this was an open-and-shut case with little doubt that Indian Joe had killed Anna Wilhelmina and John J. Geyser on their small Otay Mesa farm on Sunday night October 16, 1892. Why would a sixty-year-old itinerant handyman, who had lived in the San Diego area for twenty-five years with a record for staying out of trouble, suddenly kill two people he had known for over a year? It is possible that he did not: the evidence is (and was) inconclusive.

The Geyser murder case and trial, although long forgotten, may offer insights into the criminal justice system as it existed at the end of the nineteenth century. It appears that the system did not provide Indian Joe with a fair trial, but instead that he was "railroaded" as quickly and cheaply as possible. This paper will explore the evidence found at the scene of the homicides, propose various possible motives, and suggest that someone other than Indian Joe might have committed them. Finally, a discussion of the attempts to gain clemency for him and his eventual execution at San Quentin will focus on the problems faced by indigent defendants. Let us turn then to an examination of one obscure nineteenth-century homicide case.

Just before sundown on Sunday, October 16, 1892 John J. Geyser picked up his cow from his nephew Fred Piper's corral, walked back to his farm, and picketed the animal on a small knoll some eighty feet southwest of his house. The cow-milking session had become an evening ritual. As usual, it was so quiet on the mesa that one could hear a voice almost a half mile away. Everything seemed peaceful, but within an hour John and Anna Geyser lay dead, victims of one or more brutal club wielding assailants. Mary and Katie Piper, riding a horse and a mule, were taking Lillie Lohman home, and as they passed the Geyser home and turned south on the road to the Lohman farm, they heard John cry out and a thumping sound. Lillie jumped off the mule and ran the remaining half mile to her home. The two sisters turned their mounts and returned home to tell their father, Fred Piper.2

As they later testified, Mr. Piper and Fred, Jr. walked over to see what was wrong. They apparently did not expect trouble, for they carried neither lantern nor weapon. On approaching the house they noticed a light in the bedroom. Just before entering the kitchen door, Fred, Sr. noticed two dark forms lying on the ground. He thought them to be drunken Indians. As he stepped through the kitchen door he saw a light still shining from a crack in the bedroom door; he called out and the light went out. As he entered the bedroom he saw someone moving toward the door, so he grabbed him shouting, "You rascal." The two individuals struggled in the darkness, one trying to escape, the other holding on for dear life. Mr. Piper called for his son to help him. The fifteen-year-old youth rushed into the kitchen. He grabbed a throat and began to choke what he thought to be the assailant — it was his father. After a few minutes the two Pipers struggled with the unknown intruder and dragged him outside. Fred ordered his son to run and get a picket pin from the cow picketed southwest of the house. He returned and began to hit the mysterious intruder on the head with the sharp end. After several quick blows the victim said: "Not so hard." Fred, Jr. continued hitting him until his father told him to stop.3By then they realized they had Indian Joe. Within a few minutes the two Pipers had the intruder tied with the rope used to tether the cow.4 Piper asked his son who the two figures were: he replied that they were John and Anna Geyser. Both were dead. The older Piper sat on Indian Joe while his son ran to tell the girls to fetch neighbors.

News of the brutal murders quickly spread throughout the Otay Mesa area. Within a few hours eleven or twelve men assembled at the Geyser residence. Constable Thomas Smallcomb took control shortly after midnight. He arrested Indian Joe and soon began to investigate the scene of the crime.5 Unfortunately, by that time, many of the farmers had walked around the house, very likely destroying evidence that would have helped to solve the case. None of them understood the concept of a crime scene as it is known today. Smallcomb, although not a professional lawman, did his best to collect evidence, including two clubs, three purses, a few coins, a pile of clothes, Indian Joe's shoes, coat and a demijohn half full of wine.6 He also noted barefoot prints that came from the barn and headed toward the house. They, however, did not seem to lead to the kitchen door on the south side of the house.7 The fact that they did not lead to the south door is significant. Indian Joe claimed that he entered the east door. If he did, he would not have seen the bodies.

Everybody at the crime scene believed that Indian Joe had committed the murder. After all he had been apprehended in the house. None had sympathy f or the alleged killer who lay bound and profusely bleeding from the severe head wounds suffered during the struggle. It was a chilly night and Joe asked Smallcomb to cover him with his coat. Some of the farmers expressed hostility toward Joe and asked the constable not to cover him, stating he should suffer a lot more than a little cold. In court testimony Smallcomb admitted that Joe "desired to urinate." The constable noted that several farmers made some ridiculous remarks in reply to this request. Defense attorney Melville Rawson asked, "Was his request granted in this respect?" "No sir," he replied.8 The next morning authorities put Indian Joe in a wagon and moved him to the village of Otay. Two days later he narrowly escaped an angry mob that gathered at the preliminary hearing. Some had lynching on their minds, but the fast talking of Deputy District Attorney Frank Goodbody, who calmed the crowd, and the quick thinking of Constable Smallcomb, when he grabbed up a rope that had been thrown in the street, averted mob violence.9

A look at the crime scene offers some clues about the homicide. The small Geyser farm was situated on Otay Mesa on the south side of Otay Valley; in fact the barn stood only twelve feet from the canyon rim. There are also canyons approaching the Geyser farm from the south that end only a half mile away. The Mexican border is just two miles away (see diagram 1). On a dark night, it is conceivable that one or more assailants could have entered the residence, killed both victims, and left undetected.

What about the evidence against Indian Joe? He had worked for John Geyser only a week or so before, and on Sunday morning John had asked him to come up to his farm either Sunday or Monday and carry away some dirt. Joe claimed he had walked up to the Geyser farm about dark and had seen a light in the house. He had entered the east door and had found only a lamp in the kitchen. Joe claimed he picked it up and walked into the bedroom looking for Geyser.10 Hearing Fred Piper call out, he turned around. The light went out and he stepped toward the door where Fred grabbed him. Two clubs were found at the scene, one a greasewood club about three feet in length and the other a long piece of two-by-four. If Joe had committed the crime would he have carried two clubs? That seems unlikely. If he only had one, how and where did he locate the other one in the dark? The closest loose wood was near the barn, sixty feet away. Which victim was killed first? If Indian Joe was the lone assailant, why did the bodies end up so close together? Would it be possible for him to kill both at the same time?.

Many such unanswered questions can be posed after studying this case. An examination of how one or more assailants might have killed them may offer some clues. John Geyser had left Anna alone while he walked over to the Piper house, just before dark, to pick up his cow for milking. This was about a fifteen minute walk each way (see Diagram l).11 It is conceivable, but doubtful, that the assailant(s) killed Anna before John returned. More likely the intruder(s) killed John first. There was a little milk and a hat in the bucket at the crime scene, indicating that John had started milking the cow before being attacked. Since there was blood on the milking stool lying half way between the cow and the house, John might have been returning from the cow to the house. The assailant(s) probably approached John and hit him with the small club. John yelled, ran for the house, and was overtaken and clubbed until he fell. There were three wounds on the front or side of the head (right or left side is unknown) inflicted by the greasewood club. The testimony of Dr. B.F. Mertzmann does not indicate which blow came first. A larger club had been used to crush the right rear of the skull. His right shoulder blade had been "broken obliquely with a heavy blow." This all fits into the pattern of being knocked down and then finished off with the two-by-four timber. He also received a large wound on the left arm suggesting he might have been trying to fend off or was fleeing the attacker(s).l2

Since the constable found Anna lying about five feet to the west of the kitchen door, it appears that she may have been the last one killed. Anna must have heard the commotion and come to the door. The intruder(s) hit her and she fell a few feet away from John, nearer the kitchen door (see Diagram 2).13 The killer(s) then hit John (who was probably unconscious) several times with the two-by-four, crushing the right side of his skull. One person could have killed both, but why would he have gone off in the dark to find another club? The three-foot piece of greasewood could have done the job just as effectively. The evidence suggests that two men may well have carried out this crime and disappeared into the darkness.

If Indian Joe killed them, why did he stay around the crime scene so long? Mary and Katie Piper heard Geyser call for help at about 6:15 p.m., just after dark. They immediately rode home to tell their father. It probably took them ten minutes to reach the Piper farm, and they placed the horse and mule in the barn before going to the house to relate what they had heard. Fred and his son took a few minutes to get coats and hats, then walked across to the Geyser house.14 During testimony Fred, Jr. noted that it took him about fifteen minutes to cover that distance; therefore, it must have been at least thirty minutes from the time the girls heard the commotion until Fred Piper arrived at the Geyser house. Would it have taken Indian Joe thirty minutes to find the money and run?15 Even he must have known that voices could be heard long distances on a quiet night. Or did he approach the crime scene after the murders had been committed and scare away the killers?

In his opening statement District Attorney Johnstone Jones suggested that robbery was the motive for the crime. About half way through the trial he changed this to revenge. Constable Smallcomb found two purses on the person of Indian Joe and one on the kitchen floor. This evidence certainly suggests that robbery could have been the motive. Yet they contained a total of only fifteen dollars and twenty-eight cents.16 The constable also found a box with one hundred seventy dollars in the bedroom, but this was not in the possession of Indian Joe. The alleged assailant never admitted guilt; he claimed that two other Indians had set him up to be blamed for the crime. At least three men had seen him with Pedro Armento and José Barreras in Otay Valley around 4 p.m. on Sunday (see Diagram 1.). Joe claimed he had walked upstream to take a bath and had fallen asleep. He woke up about dusk and clambered up the canyon wall to the Geyser home. It is conceivable that his arrival and hello surprised the assailants, who might have left heading south to Mexico or west along the road back to Otay Valley. There are no easy answers to this historical puzzle.

A stream of witnesses, including policemen José Cota, George Dow, and James Russell, noted that for twenty-five years Indian Joe had maintained a good reputation. Cota admitted that he often drank, but was usually congenial. A search of criminal court records failed to uncover any previous violations by Indian Joe. He had been paid three dollars by Frank Sousa only a few hours before the crime; there was no immediate need for money. At about noon Sunday he had a place to sleep and a half-gallon demijohn full of red wine. Considering his itinerant life style what more could he have asked for?18 On the other hand, he knew that the Geysers had some money. In a conversation held with George A. Johnson, an Otay farmer, a week before Indian Joe had said: "Oh, they got plenty of money." Under cross-examination Johnson admitted that Joe "never said anything against them; I know that." Frank Sousa noted that Joe had stated: "I no like him — the old man. He is kind of cranky." Possibly more damaging would be the testimony of Anna, wife to Fred Piper. She claimed that a week previous to the murder Joe had said he would not work for Geyser and stated: "By God, I want my money."19

Indian Joe apparently had a penchant for wine. Several witnesses noted that he often drank wine or beer. At about 10 a.m. on the day of the crime, he headed west to Anton Guatelli's winery, situated about two-and-one-half miles west of the Geyser farm. Guatelli had been selling wine for several years. Around noon Indian Joe had his half-gallon demijohn filled with red wine. He also took time to consume two glasses of wine at the winery. At the crime scene the constable noted that the demijohn was half full. Since he was only five-foot-three inches tall, and weighed one hundred forty pounds, if Joe had indeed consumed half of the bottle or one quart of red wine at 12 percent alcohol, along with the two glasses of wine between noon and six in the evening, he would have been under the influence of alcohol. His blood level could have been as high as .20 and it is likely that it was at least .12,20 Any inhibitions about killing the Geysers might have been suppressed. But then he had been drunk many times before and had never been violent. Did he actually kill the Geysers?

The trial and the press coverage offer us another chance to study the homicide. During the preliminary hearing in Otay Indian Joe had no legal counsel. The justice of the peace asked him several questions, but he could not respond adequately since he spoke Spanish and only broken English. The picket pin beating left him suffering a good deal of pain; he knew little of what transpired at that hearing. At the superior court arraignment he obtained representation by a court-appointed attorney. A few days later he received two new court-appointed attorneys, Melville Rawson and his younger brother Frank.21 They had one week to prepare their case, but the trial transcript suggests that the prosecution and defense were only going through the motions.

If the jurors read the newspapers they could not help but form opinions about the guilt of the defendant. The San Diego Union ran a series of articles that virtually convicted Indian Joe before the trial. Three days after the double murder the Union portrayed Indian Joe as a man with a "swarthy face, filled with savage cunning and the distinguishing marks of brutality." In another essay the reporter observed "the wretch who lies in the county jail today deserves to die." The San Diego Sun claimed that Anna's "body was roughly thrown out of doors" by Indian Joe. They also referred to him as the "savage."22 Such editorializing must have had some effect on the prospective jurors. Unfortunately, the impanelling testimony of the jury is not available. We will never know the actual racial feelings, good or bad, held by the jury. On the other hand, we do know the jury's ethnic, social, and economic composition. First, of course, there were no Indians, Hispanics, or blacks. It was a jury panel composed mostly of farmers and workingmen. At least three members of the jury were German-American. Since the victim was a German farmer, it is likely that the five farmers might have been somewhat sympathetic toward the victims.23 The two sides rejected forty-five prospective jurors in order to impanel a jury for a first degree murder trial. For a capital offense it was not unusual to exhaust a venire of one or two hundred prospective jurors. Did Rawson make the most in selecting the jury? Since we have no impanelling testimony it is difficult to assess this aspect of the trial.24

The image of Indian Joe portrayed by the two sides, however, is easier to evaluate. Through various witnesses the prosecutor suggested that the defendant was virtually an illiterate. According to prosecution witness Henry Beckley, Indian Joe stated: "I no stealee; I no stealee." Constable Smallcomb noted that Joe said, "I no kill them." Frank Sousa indicated that Joe said: "I no like him." These are obvious examples of invented language. The implication is that Indian Joe could not put together a well constructed sentence, at least not in English. On the other hand, the defense called him to the stand, and if the Spanish translator Reginald Valenzuela is to be believed, Indian Joe talked intelligently. Rawson asked, "Did you have anything to drink at Anton's that day?" Joe: "Yes sir; I drank two glasses there, like they gave there every half hour." When the prosecutor cross-examined him, "Why did you struggle with Fred Piper then when you knew his voice?" Joe: "They were the ones that grabbed me, or took hold of me; I didn't take hold of them." Thirty pages of similar testimony indicate that Indian Joe could speak excellent Spanish, if not good English.25 This testimony verifies that the prosecutor distorted Indian Joe's image. It was a good legal tactic — it worked.

On at least one occasion defense attorney Rawson appeared effective. He virtually discredited young Peter Beckley during cross-examination. In earlier testimony Beckley claimed that he had seen Armento and Barreras, the other two Indians, in Otay Valley at about dark. Rawson rattled him so badly that he could not give an adequate accounting of time or distance. This certainly opened up the possibility that someone else might have committed the crime, but it did not sway the jury. Outside of this short repartee Rawson's performance seemed low-key. True he only had one week to prepare, but he could have asked for a continuance. With hindsight, of course, it is easy to criticize his defense. For example, young Mary Piper testified that upon hearing the yelling and thumping sounds from the Geyser place her sister Katie had exclaimed: "Oh, that is Joe killing Mr. Geyser." Since it suggested that she knew at that time that the assailant was indeed Indian Joe, Rawson should have attacked this testimony. He had access to their preliminary hearing testimony which failed to mention this. He also knew that since it was dark they could not have seen the attacker(s). They could not have known who the assailant(s) were at that time since they only heard Geyser's voice.26 This testimony certainly hurt Indian Joe's case. Melville Rawson seems to have been poorly prepared for this trial.27

Considering that Indian Joe had been apprehended on the premises, most court observers believed him to be guilty. On the other hand, Indian Joe had a legitimate reason to be at the Geyser farm that night. Mr. Geyser had asked him to come up to his farm either Sunday or Monday to haul away dirt left from digging the cistern near the barn. Moreover, while working for Mr. Geyser previously, he had eaten in the house, and had slept in the barn.28

The trial began on Wednesday, November 30, and concluded on Sunday, December 4, 1892.29 The final testimony ended at about 3:30 p.m. on Saturday followed by arguments, a two-hour recess, more argument at 7 p.m. and finally the instruction of the jury near midnight. The jury deliberated for an hour and a half before turning in for the night. In the morning the jury, after several ballots, could not reach a verdict on first degree murder. They decided to separate the two issues: the first degree murder charge and the penalty.30 This brought a verdict of guilty of first degree murder. The penalty phase vote forced a deadlock with six for life imprisonment and six for death.31 At 10:30 a.m. Sunday they asked for further instructions. Judge George Puterbaugh asked: "Gentlemen, have you agreed upon a verdict?" Foreman: "No sir. We have not, your honor. Upon the demand of one juror it was agreed to wait for the arrival of the Judge to ask for further instructions as to whether it is optional to the Judge to fix the penalty in case the jury endorses the verdict of guilty in the first degree without stipulation as to the penalty." After conferring with Rawson and the prosecutor the Judge answered: "In a trial for murder, the jury, if they find the defendant guilty of murder in the first degree, need not declare in their verdict that the punishment shall be death, for if the verdict is silent in respect to the penalty the Court must sentence the defendant to death."32

The jury returned a verdict of guilty on first degree murder and remained silent on the issue of punishment. When the court clerk polled the jurors one stated: "Well, I agreed with the rest, but — ." He was cut short by the judge and the verdict stood despite the protests of defense attorney Rawson. At least one member of the jury opposed the death penalty: thirty years later it would have resulted in a mistrial.33 Rawson called for a new trial, but was unsuccessful. On Friday, December 16, 1892, Judge Puterbaugh sentenced Indian Joe to death by hanging, to be carried out on March 3, 1893. The next day the sheriff left on the morning train for San Quentin Prison with Indian Joe in custody.34

The end was drawing near for Indian Joe. He had little outside help to call for a commutation of his sentence to life in prison. San Diego Police officer José Cota asked for a delay "to give further time as the evidence against him was circumstantial that it may be feasible to prove that he did not commit the crime."35 Without money and significant public support this attempt was futile. In the nineteenth century many ethnics met similar fates because they could not afford the appeal process.36 In modern times things have changed dramatically with regard to defendant rights. Today, if Indian Joe were sentenced to death for first degree murder he would receive an automatic appeal.37

Indian Joe received the "honor" of being the first prisoner to be executed in San Quentin. Prior to 1893 prisoners were remanded to the custody of local authorities for execution of sentence in death penalty cases. A new law passed in 1891 changed that by ordering the execution of capital offenders within the prison.38 On Friday morning March 3, 1893, a priest visited the condemned man, then left him alone for about ten minutes. At 10 a.m. guards led Indian Joe to the newly erected scaffold. He walked up the stairs where the guard adjusted the rope then put a black hood over his head. According to a brief entry in the San Quentin Execution Book Indian Joe dropped precisely six feet. The fall broke his neck. "For a few seconds there was no movement then the chest heaved, the legs were drawn up convulsively and the body commenced to swing. In four minutes the pulse ceased to beat, and in eleven minutes the doctors anounced he was dead." A San Diego Union editorial noted: "The execution yesterday of Indian Joe was a fitting sequel to the Otay tragedy." The editor astutely observed: "It is a discreditable state of things that only poor men and friendless pay the penalty of their crimes."39

Whether Indian Joe actually killed John and Anna Geyser remains a mystery. Today modern forensic sciences can solve many cases that would have gone unsolved a century ago. Investigators can tell by the angle and damage of the blow the assailant's approximate height, weight, and whether he is left- or right-handed. The crime scene would have been roped off and methodically searched by homicide detectives trained in finding and preserving physical evidence.40 The reader will have to make up his own mind as to the guilt or innocence of Indian Joe and the fairness of his trial. Yet there is little doubt that in the nineteenth-century the indigent ethnic — Chinese, black, Hispanic, or Indian — had little chance of obtaining an appeal. One could hardly find an accomplished criminal lawyer who would donate time filing an appeal for a condemned man. Indian Joe's court-appointed attorney asked to be dismissed from the case over a month before the execution: he apparently did not care to pursue an attempt at clemency. At a time of crisis Indian Joe stood virtually alone and went to his death without complaint.41 The mystery remains to this day and so does the question: was justice served?

I would like to thank the Sourisseau Academy, San Jose State University, for partially funding research on this project in the summer of 1985; and a special note of appreciation to Joseph P. Samora and Mary Itow of the California State Archives.

NOTES

1. The actual court costs probably reached over five hundred dollars. This would include salaries of the justice of the peace, judge, constable, prosecutor, defense attorneys, interpreters, jurors and witness fees, jail room and board, and travel to San Quentin. See travel vouchers in Criminal Case No., 7105, "The People vs José Gabriel, in the Superior Court Department 2, San Diego County, November 29-December 4, 1892 (San Diego History Center Archives); and salaries of superior court judges, county sheriffs, coroners, constables, justices of the peace, and district attorneys as set by Section 737 in Statutes and Amendments of the State of California, 1891 (Sacramento, 1891).

2. Typed trial transcript, Criminal Case No. 7105, "The People vs José Gabriel" in the Superior Court, San Diego County, Department 2, November 29-December 4, 1892, pp. 14-63, 126-160, file No. 195 in Applications for Pardon, Historical Case Files, Prison Papers, Records of the Governor's Office (Sacramento, California State Archives). Hereinafter cited as "People vs Gabriel."

3. Fred Piper, Jr. inflicted severe damage on Indian Joe's head; it was believed that he might not survive his wounds. Later at the trial Fred Jr. explained "how he played 'Annie Rooney' on the defendant's head." It "provoked considerable laughter" in the courtroom. A picket pin is made of iron and has dimensions of fifteen inches by five eights of an inch in diameter. It weighs about three or four pounds. It could inflict a lot of damage. For an example see the picket pin in the possession of Ken Weaver, Seeley's Stable blacksmith (San Diego, Old Town State Park). "People vs Gabriel," pp. 79-160; and San Diego Union October 21, 22, and December 2, 1892.

4. It seems odd that two younger men would have had so much difficulty subduing a five feet-three-inch, sixty-year-old man.

5. Thomas Smallcomb appears to have been a typical constable. He was a thirty-one-year-old rancher supplementing his income working as a part-time law enforcement officer. Like most constables he probably had no experience or training in crime scene investigation. See the "Great Register Books, 1892-1894," (California Room, San Diego Public Library).

6. The three purses seem to be the most damning evidence against Indian Joe. Why did Joe have more than one purse?

7. Where the tracks began and where they ended was not clear. Either the constable did not know the real meaning of the footprints or most had been destroyed by the farmers walking around the house. If Indian Joe had killed the Geysers it is possible that the footprints led around the west side of the house to the picketed cow where the assailant(s) had killed John. If he did not kill them, the foot prints probably led to the east door.

8. Apparently Indian Joe had no friends on Otay Mesa that night and, as will be seen, few in San Diego. See "People vs Gabriel," pp. 285-286.

9. San Diego Union October 23, 1892.

10. "People vs Gabriel," pp. 314-328.

11. At a quick, steady pace, it takes approximately eleven minutes to walk one-half mile on a smooth paved street. I walked from the old Piper residence to the Geyser place in daylight at a rapid pace, over somewhat uneven ground, in fourteen minutes and thirty-five seconds.

12. Precise information on the blows might suggest the height of the attacker(s) and whether they were left or right handed. Unfortunately, it is lacking. "People vs Gabriel," pp. 2-4.

13. There was no testimony on how many blows Anna Geyser suffered in the attack. Diagram two was developed with the aid of the trial transcript, a San Diego Union sketch, and geological survey maps. A Union reporter theorized that the assailant(s) killed Anna first; a reevaluation of the evidence suggests just the opposite. See San Diego Union, October 18, 1892.

14. Why they did not ride horses is unknown. Apparently they did not expect any trouble.

15. Being under the influence of alcohol might explain his taking his time to ransack the home. Maybe he could not find the money. But even an inebriate would have known the nature of the terrible crime committed that night and wish to flee quickly for the Mexican border less than two miles away.

16. These purses were never identified as belonging to the Geysers. "People vs Gabriel," pp. 72-73; and Superior Court Order December 17, 1892, delivering all money held as evidence to M.L. Rawson, defense attorney (San Diego Historical Society Archives).

17. It would have been possible for the two Indians to walk up the canyon and kill the victims and then return to their resting place near Seed's farm. If they did, however, why were they not tried with Indian Joe? An information filed against them accused them of killing only Anna Geyser and charges were soon dropped so they could testify against Indian Joe. See "People vs Pedro Armento and José Barreras," Superior Court Cases No. 7160 and 7161; "Minutes of the Court," Superior Court Department 2, December 1-2, 1892; and "People vs Pedro Armento and José Barreras," in the Justice Court of Otay Township, October 22, 1892, (San Diego History Center Archives).

18. If robbery was not the motive could the seemingly amiable old man have committed such a brutal crime for revenge? Revenge for what? That was never made clear by the prosecutor during the testimony and the arguments to the jury are not available.

19. Whether John Geyser paid Joe is unknown, but it could not have been much money, maybe five or six dollars. "People vs Gabriel," pp. 246-247, 254, and 78.

20. It is significant that about 50 percent of modern day homicides are alcohol related; the same applies to nineteenth century San Diego. On the effects of alcohol see Clare V. McKanna, Jr., "The Alcohol-Homicide Connection in San Diego," forthcoming in True West; and Chapter 20 "Wine as Alcohol," in Maynard Amerine, An Introduction to Wine (Berkeley, 1976).

21. Today, of course, Indian Joe would have been read his rights at the scene of the crime and each step toward the trial would have included a defense attorney. Even in 1892 he had the right of attorney at the arraignment. See section 987 in The Penal Code of the State of California (San Francisco, 1919); "People vs José Gabriel," in the Justice Court of Otay Township, October 22, 1892; and "Minutes of the Court," Superior Court Department 2, November 1, 11, 14, 16, 1892 (San Diego History Center Archives).

22. San Diego Union October 19, 23, 1892; and San Diego Sun October 17, 1892 and March 2, 1893.

23. The jury headed by Jurgen L. Paulsen, included Henrich Braunagel, William A. Crawford, John Dair, Thomas E. Fultz, Henry Gottesburen, Paul Junker, James D. Kerr, John B. Levet, Denver E. Pardee, Hamilton M. Squires, and William W. Wright. Jury list in "People vs Gabriel," Case No. 7105 Superior Court Department 2 (San Diego History Center Archives); and "Great Register, 1892-1894."

24. On nineteenth century trial impanelling procedures see Lawrence M. Friedman and Robert V. Percival, The Roots of ]ustice: Crime and Punishment in Alameda County, California, 1870-1910 (Chapel Hill, 1981), p. 184. In an 1876 San Francisco murder case, involving a Chinese defendent, the impanelling of the jury alone required three days. The trial reached completion in ten days. See typed trial transcript "People vs Ah Sue," in file 447 in Applications for Pardon, Historical Case Files, Prison Papers, Records of the Governor's Office (Sacramento, California State Archives).

25. "People vs Gabriel," pp. 187, 265, 254, 315, and 331.

26. Sundown is at 5:26 p.m. on October 16th and within forty-five minutes darkness must have fallen on Otay Mesa that night. See "People vs Gabriel," pp. 23; "People vs José Gabriel," Justice Court of Otay Township, pp. 2-6; and The World Almanac and Book of Facts. 1986 (New York, 1985) p. 745.

27. Melville Rawson compiled a lackluster record in 1892; he lost four other criminal cases that year. Of course each case should be evaluated upon its own merit, but a zero and five record is not good. See "People vs William Gillis, People vs J.F. Selue, People vs Frank Curlew, and People vs Manuel Valdez, et al.," Cases No. 6571, 6766, and 6870 in the Superior Court; and Minutes of the Superior Court, March-December 1892, San Diego County (San Diego Historical Society Archives).

28. "People vs Gabriel," pp. 310-312.

29. This was short, even for a nineteenth-century homicide trial. For example, in Alameda County the average homicide trial lasted seven days. See Friedman, The Roots of Justice, p. 185.

30. Actually the judge probably should have instructed the jury to separate the two issues prior to sequestering them since they are distinctly different.

31. The second and following votes changed and eventually ended with one juror holding out for life imprisonment. See San Diego Union December 5, 17, 1892.

32. A series of California Supreme Court decisions did allow the judge to set the penalty if the jury remained silent on that issue. See People v. Welch (1874) Reports of Cases Determined in the California Supreme Court (San Francisco, 1906) 49, p. 174; People v. Uzza F. French (1886) Reports of Cases Determined in the California Supreme Court (San Francisco, 1906) 75, pp. 169-180; and New Instructions to the Jury, "People vs Gabriel," Case No. 7105, in the Superior Court, San Diego County, Department 2, pp. 1-2 (San Diego Historical Society Archives).

33. In People v. Floyd Hall (1926) Reports of Cases Determined in the California Supreme Court (San Francisco, 1927) 199, p. 451, the court ruled that if the jury could not agree on the penalty (death or life imprisonment) it had to be declared a mistrial. The jury had to be unanimous on the death penalty and a judge could not overrule their choice. See San Diego Union December 5, 1892. For an interesting parallel of one man's opposition to the death penalty see People v. French, pp. 177-178. For analysis on present-day indigent rights see Barry Siegal, "Gideon and Beyond: Achieving an Adequate Defense for the Indigent," The Journal of Criminal Law, Criminology and Police Science 59 (March 1968) 73-84.

34. Judge George Puterbaugh's sentence, in "People vs Gabriel," pp. 364-365; and San Diego Union December 19, 1892.

35. Cota, Catholic Rector A.D. Ubach, Assistant Priest J. Reynolds, Indian School Chaplain J. Barron, Frederick H. Holbrook, Frank Rawson and a few other local citizens failed to gain a commutation of sentence. See letter from José Cota to Governor H.H. Marfcham, February 14, 1893; letter from Reverend A.D. Ubach, et al. to Governor H.H. Markham, February 6, 1893; and letter from Frederick H. Holbrook to Governor H.H. Markham, December 29, 1892, file No. 195 in Applications for Pardon, Historical Case Files, (Sacramento, California State Archives).

36. For further documentation, see Clare V. McKanna, Jr., "Indian Homicides in California, 1850-1900: A Quantitative Look at the Pardon Process."

37. For historical analysis of the change in the law, see section 1239 in West's Annotated California Codes: Penal Code Sections 1191 to 1366 (St. Paul, 1982), pp. 427-437.

38. "A judgment of death must be executed within the walls of one of the State Prisons." See section 1229 in The Statutes of California and Amendments to the Codes, 1891 (Sacramento, 1891) p. 274.

39. Indian Joe was the first of 215 executed by hanging in San Quentin. In 1938 the gas chamber replaced the gallows. See entry No. 1 José Gabriel, "Execution Books, 1893-1967" San Quentin Prison (Sacramento, California State Archives); and San Diego Union March 4, 1893 and March 5, 1972.

40. While examining the almost century old crime scene on the northern edge of Brown Field, I noted that ironically the only substantial and visible remaining portion of the Geyser place is the cistern that was dug by Indian Joe in 1892.

41. See "Minutes of the Court," Superior Court Department 2, January 24, 1893 (San Diego History Center Archives).

THE PHOTOGRAPH of Jose Cota is courtesy of Pliny Castanien, San Diego Police historian. All others are courtesy of San Quentin Prison.