The Courts of Heaven
| Publication year | 1999 |
| Pages | 20 |
| Citation | Vol. 68 No. 01 Pg. 20 |
68 J. Kan. Bar Assn. January, 20 (1999). THE COURTS OF HEAVEN
January, 1999
Copyright (c) 1999 by the Kansas Bar Association; Lawton Nuss
Our State Supreme Court described the greatest tragedy in the Kansas range wars in simple, almost casual language:
In June, 1903, the defendants, with other persons, ten in all, armed, left the ranch of defendant Chauncey Dewey and went to the home of Alpheus Berry, about five miles distant, to get a water tank that had been purchased by Chauncey Dewey at an execution sale on the day previous. While Dewey and his party were at the home of Alpheus Berry, a battle occurred between Dewey and his party on the one side and Daniel Berry, Alpheus Berry, Burch Berry, Beach Berry, and Roy Berry on the other side. When the battle ended, Daniel Berry, Alpheus Berry, and Burch Berry had been killed by members of the Dewey party, and Roy Berry had been wounded by them. Beach Berry escaped. None of the Dewey party was injured. [FN2]
Page 21
Was this the "most brutal, fiendish and inhumane crime ever perpetrated in Northwest Kansas."? [FN3] Or were the Dewey men "genial companionable gentlemen fit for the company of any cultured and civilized assortment of men and women."? [FN4] This article will help the reader to decide, as it explores the numerous court fights that arose out of this single gunfight. But first, a review of the combatants and the events leading up to the tragedy is required.
I. Historical background
Chauncey Dewey's father, C. P. Dewey, was a man of large means residing in Chicago and managing an extensive business in Manhattan. [FN5] By the turn of the century he had established large cattle ranches not only near Manhattan but also in Northwest Kansas. [FN6] His Oak Ranch in Northwest Kansas was enormous, stretching over hundreds of thousands of acres and including parts of at least five counties. [FN7]
C. P.'s son Chauncey had toured Europe and attended the University of the South in Tennessee. In 1898, when he was only 21, his father had installed him as manager of the sprawling Oak Ranch. [FN8] The Berrys, by contrast, were homesteaders and farmers who lived on small acreages near Oak Ranch. [FN9] Father Daniel shared a home with his wife, Harriet, bachelor son Burchard a/k/a Burch, son Beach, Beach's wife and their three children. [FN10] His third son Alpheus, his nephew Roy and their families all lived close by. [FN11]
For several years prior to the shootout, the small settlers near Oak Ranch had vigorously opposed the encroachment of big ranchowners on their territory. [FN12] Nineteen settlers, a number of them armed, had once confronted Chauncey Dewey at his ranch headquarters. [FN13] The Berrys had not only been present at this confrontation but had also been at the forefront of the entire conflict. [FN14] As the Kansas Supreme Court recognized, "For some time there had been ill feeling between Dewey and his employees on the one side and the Berrys on the other side. Threats had been made, and each of the contending parties went armed as against the other." [FN15]
The Berrys accused Dewey of starting the trouble when he had first come to Northwest Kansas, and they believed that he should have been jailed for his livestock practices. [FN16] Specifically, they accused him of illegally fencing off public lands and denying them access to this free range. [FN17] While Dewey acknowledged the problems had begun shortly after he had come to Oak Ranch, he blamed the Berrys for starting the trouble by allowing their cattle to trespass on his land and threatening him when he protested. He accused them of numerous misdeeds, including driving 125 of his purebred bulls into a ravine and shooting them. [FN18]
A. Self help possession
On June 2, 1903, the day before the gunfight, several of the Dewey cowboys had attended a sheriff's execution sale held on Alpheus Berry's farm. According to Dewey, his men had been driven away at gunpoint by Roy, Burchard and Beach Berry. With the Cheyenne County sheriff as his proxy, a Dewey cowboy then purchased Alpheus' watering tank for $6. It was agreed he would retrieve his purchase the next day. On June 3, Dewey called together seven armed horsemen. Accompanied by a mule-drawn wagon (carrying two more armed employees) with which to transport the water tank, they began their ride from the Oak Ranch headquarters in Rawlins County to Alpheus Berry's farm five miles away in Cheyenne County. [FN19]
Although this appeared to be a textbook example of breach of the peace through self help possession, one of the men, William McBride, was a township constable. [FN20] Whether his authority extended to Alpheus' farm, which was in a different county, is questionable, however, particularly since McBride lived on the Oak Ranch and rode the range in Dewey's employ. [FN21]
After the 10 Dewey men reached Alpheus' farm, they were met at the tank, first by Daniel Berry and then his son Alpheus. [FN22] Burch, Beach and Roy rode up on horseback, and the shootout began. [FN23]
B. After the battle
With three dead and two wounded Berrys in their wake,
Page 22
the unharmed Dewey men returned to Oak Ranch without the $6 tank. [FN24] Under the protection of heavily-armed cowboys, they waited there for legal advice and the Rawlins County sheriff whom Dewey had telephoned. [FN25] In the meantime, Beach had ridden to McDonald, Kan., and telegraphed the Cheyenne County sheriff, Roy had arrived at a neighbor's farmhouse covered with blood, and a coroner's jury convened at the battleground that night. [FN26] News of the tragedy therefore spread quickly among the settlers. As a result, in a classic scene later repeated in countless Hollywood westerns, the next day the sheriff had to face down a crowd of armed and angry settlers who had converged on the Oak Ranch headquarters. He announced that he had arrested Dewey, McBride and ranch bookkeeper Clyde Wilson, and had also deputized 25 Dewey cowboys to protect his prisoners. After some tense moments, the crowd departed. [FN27]
The prisoners were taken to Colby in Thomas County for protection. Since it was clear many settlers felt Dewey and his men had indeed committed the "most brutal, fiendish and inhumane crime ever . . . in Northwest Kansas", the sheriff telegraphed the governor to call in the National Guard. [FN28] Two National Guard companies, totaling more than 50 men, then escorted the three prisoners to St. Francis, the county seat of Cheyenne County. Although it was said armed settlers watched them the entire trip over the High Plains, the anticipated attack (with its accompanying threat of a lynching) never came. [FN29]
The National Guard continued to guard the prisoners and the Cheyenne County Courthouse during the preliminary hearing. A justice of the peace then bound the defendants over without bail and ordered them to be held in the Sherman County Jail at Goodland. They were moved to the Shawnee County Jail at Topeka, however, while their attorney, Sen. John E. Hessin of Manhattan, obtained a writ from the Kansas Supreme Court allowing bail of $18,000 apiece. [FN30] Dewey, McBride and Wilson then spent the summer at a large resort near Manhattan owned by C. P. Dewey. [FN31] The criminal information was eventually filed in the District Court of Cheyenne County on Dec. 2, 1903. Because emotions still ran high against the defendants, venue was changed to Norton County, three counties removed. [FN32]
II. Criminal battles
A. The murder trial
The state elected to try Dewey, McBride and Wilson first for the murder of Burchard Berry, with the other prosecutions to follow. Jury selection began Feb. 3, 1904, [FN33] and the trial soon became "one of the most bitterly contested legal battles in the history of the state." [FN34] Kansas Attorney General Chiles C. Coleman of Clay Center headed the impressive five-man prosecution team. It included former Lt. Gov. Major A. M. Harvey of Topeka and Gen. L. W. Colby of Beatrice, Neb., who had served as an army brigadier general and as an assistant U.S. attorney general during President Benjamin Harrison's administration. [FN35] With logic that today would seem suspect, both Gen. Colby, who was an old friend of the Berry family, and Major Harvey would not only help prosecute but would also later serve as primary plaintiffs' counsel in the resultant civil litigation.
The defense team was equally distinguished. Its leader, Sen. Hessin, was assisted by seven other attorneys. [FN36] One of the assistants, W. S. Morlan of McCook, Neb., was allegedly employed because of his reputed experience as a "gunman on the plains." [FN37]
For the prosecution, Roy and Beach Berry testified that together with Burchard, they had armed themselves for several years only because the Deweys had been armed and made threats against them. [FN38] While at Daniel's nearby farm the day of the shootout, they saw the Dewey party heading for Alpheus'. Accompanied by Burchard, they then rode their horses into Alpheus' farmyard. After dismounting, they tied their horses to a wagon and saw three men talking to Alpheus and Daniel inside the corral near the water tank. While they admitted Burchard, Beach and Roy were wearing sixshooters, they swore Alpheus and Daniel were both unarmed. [FN39] As they
Page 23
advanced to help load the tank into the Dewey wagon, Dewey suddenly rose from behind a sod wall 30 feet away and shot Roy in the right jaw with a rifle. Roy and Beach swore that the shot had come absolutely without warning or provocation. [FN40]
Roy and Beach further testified that as Beach and Burchard then turned to run, Constable William McBride suddenly rose from behind the water tank and shot Burchard with a rifle. Beach continued running for the barn and was shot in the leg. He finally...
To continue reading
Request your trial