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The TALES you probably never heard about

STEWART FOUND GUILTY OF MURDER

WIFE SLAYER NOW FACES GALLOWS

Verdict Returned After Two Hours’ Deliberation

EXECUTION  FEB. 7

             Guilty was the verdict rendered at 1:15 this afternoon by the jury in the case of Herschell Stewart, charged with the murder of his wife at the home of his parents in Allanburg on June 12.

             His lordship Mr. Justice Rose deferred passing sentence until the resumption of court, which, at the time the verdict was brought in, had taken recess in another case then on trial.

             The verdict came at the end of a hard-fought battle between A. Courtney Kingstone, K.C., who prosecuted and who made a most skilful presentation of the case, and H.W. Macoomb who ably marshalled forces in what, at the outset, gave much evidence of being a hopeless cause.

             The prisoner heard the pronouncement of the foreman of the jury, Thomas S. Disher, with the same air of stolidity and indifference maintained, save for a brief period when he was upon the witness stand, throughout the trial.

             His mother was the only one of his immediate family present in court when the jury returned. There was no demonstration upon her part.

             The charge was murder in the first degree, the verdict carrying but the one penalty, that of death.

             Throughout the trial, Stewart displayed no further emotion than he did at the previous hearings. For the most part he sat with head downcast only occasionally looking at the witnesses. Outwardly he appeared to be taking little interest in the proceedings. He continually played with his fingers suggesting he was working under a nervous strain.

The Jury

             Considerable time was taken up in selecting the jury, owning to a number of jurymen being challenged by both the counsel for the prosecution and defense.

             The jury was impaneled as follows: Jas. H. Chambers, farmer, Pelham; David McGruer, machinist, Welland: S.A. Haist, florist, Pelham; C.O. Teal, contractor, Bridgeburg; Sanford Dell, farmer, Willoughby; Wilson Teal, farmer, Bertie; T.S. Disher, farmer, Pelham; Eugene Koabel, farmer, Humberstone; Merrit Shisler, laborer, Crowland; George F. Mann, farmer, Bertie; Chas. Cosby, employee, Niagara Falls; E.A. Near, farmer, Humberstone.

             Immediately behind the accused sat his mother and members of his family, while his father who was seated near the legal fraternity, also was close to him.

             The first witness called was Provincial Constable Hough, of Thorold, who visited the Stewart home the day following the tragedy and made measurements and a sketch of the house which is situated north east from the Black Horse tavern.

             Provincial Constable George Jorgensen stated he was called to the scene of the crime at 6:30 on the morning it occurred. He found Mrs. Stewart lying dead in bed. The accused was lying beside his wife. He placed Stewart under arrest and warned him saying “he was not obliged to say anything, if he did, it would be taken down in writing and might be used against him.” Stewart simply replied, “Yes.”

Admission of Guilt

             At this point, the Crown Counsel, A. Courtney Kingstone, of St. Catharines sought to bring out evidence concerning a conversation which the witness had with Stewart in which the latter admitted killing his wife. On the grounds that such evidence might not be admissible however, His Lordship decided that the jury should retire while it was given. This course was adopted, and His Lordship agreeing that the testimony should be admitted, the jury returned and the evidence was repeated.

             Continuing, Constable Jorgensen stated he asked the accused if he had committed the crime to which he replied, “Yes.” “What did you do that for,” he then enquired. “Jealousy, I suppose,” returned Stewart, who also admitted that the gun found in the room was that with which the deed was committed. The witness declared he made no inducement or threat to Stewart prior to this conversation. Constable Jorgensen stated he examined the gun and found powder in the barrel which suggested it had been recently fired and at close range when he arrived. He found two empty shells on the floor of the bedroom, one under the bed and one about four feet away.

             Dr. John Herod, Coroner of Thorold and also private physician for the Stewart family, in his evidence stated he arrived at the Stewart home between 5 and 6 o’clock on the morning of the tragedy. He found Mrs. Stewart dead and the accused who was shot through the groin, lying beside her. He asked Stewart why he had done this, the accused replying, “Well Doctor, if your wife had been unfaithful_”

             “That’s enough. I don’t want to hear any more of that. Do you know you have committed a murder?” the witness declared.

             “He looked at me in a queer sort of way as though he did not realize,” added Dr. Herod.

             Under cross-examination by H.W. Macoomb, counsel for the defense, the witness replied he did not think Stewart was in his right mind at the time. He had seen the prisoner at different times while visiting the family home and thought his mental calibre was below normal.

             Answering the Crown Counsel as to why he did not think Stewart was in his right mind at the time, witness said he judged this by the blank stupid way in which Stewart looked at him. Stewart had led an idle sort of life. He could never hold down any job and was repeatedly going home with some trivial excuse.

             Dr. Binns was then called and stated that with the assistance of Dr. Boyd he performed the post-mortem ten hours after Mrs. Stewart was killed. Death was practically instantaneous and was caused by shock and hemorrhage.

             That the accused purchased four gun shots, twelve gauges, from him the day previous to the shooting was the evidence offered by Robert Robins, general merchant of Allanburg, who added that Stewart had never made a similar purchase before. Under cross-examination however, he admitted that a brother of the accused had bought 12 gauge shot.

The Confession

             The next witness called was Magistrate John Goodwin and as evidence regarding a confession alleged to have been made by Stewart was to be brought out. His Lordship again directed the jury to retire pending his decision as to whether same should be admitted. Deciding in the affirmative, the jury returned when His Worship proceeded with his testimony. He declared that with Provincial Constable Jorgensen he visited Stewart at the Welland County Memorial Hospital around 3 o’clock on the afternoon of June 13th. He went to the bedside informing Stewart he had been brought by the Provincial Police to take a statement which he (the accused) desired to make. Stewart answered “Yes.” Magistrate Goodwin continued, he took the confession, in which Stewart admitted shooting his wife with a twelve gauge shot-gun and afterwards going from the room when he turned the gun on himself and then returned to the bedside getting into bed by his wife. He described jealously as the motive for his act.

             Answering Mr. Macoomb, the witness stated at the time the confession was made; Stewart was suffering physical pain, giving evidence of this when he was trying to talk.

Father’s Story

             When Charles Stewart, father of the accused entered the witness box, the prisoner seemed ill at ease. For a few minutes he was quite restless, turning from side to side in his seat, He lowered his head as his father related how he arose in the morning of the tragedy at 4 o’clock, leaving for work at 4:40. He returned at 6 a.m. when he found both the dead woman and his son lying on the bed. “I spoke to Herschell, asking him why he did it,” said the witness in a voice which trembled with emotion. “He did not answer me.”

             Replying to counsel for the defense, the father said his son was 24 years of age. When at school Herschell made little progress and so commenced work when he was 14 years old. He was a laborer, but hunting, fishing and shooting were the only things he seemed to enjoy.

             Continuing witness declared his son had been out of work for some time which lead to his mother, his wife and himself, talking to him a great deal, about securing employment. Herschell however, only gave excuses.

             The father gave details of the son’s different conduct after leaving home and of peculiar actions following his return, when he seemed to be listening to imaginary conversations and when there was a marked change in his demeanor towards his mother.

             As to the shooting, he testified that the son had told him it was all a blank to him; but that he made the statement: “I know that she is dead.”

             The father said that when he pressed for a reason for the deed, the accused replied, “They say I am jealous.” Witness stressed the point that the son replied, “They say,” and not “I say.”

             He stated that so far as he knew no cause for jealousy existed; that the son had never quarrelled with his wife and that their conduct to one another had been of a kindly nature.

             A question as to whether the father had any relatives insane was dropped after an argument between counsels.

             Upon redirect examination, witness testified that he had observed no unusual actions in his son until after the latter’s attack of grip in March.

Stewart on Stand

             At 4:30 Tuesday afternoon, defense counsel sprung a dramatic surprise upon the crowded court room, where he called to the stand Herschell Stewart, the accused; it being but seldom that the defendant in a charge of capital crime gives evidence on his own behalf.

             With faltering footsteps, due to his self-inflicted wound, from which he has not fully recovered, the accused man made his way from the prisoner’s dock to the witness stand where, in view of his physical condition, he was granted seating by His Lordship, and where, chin cupped in hand, he prepared to take the stand of examination.

             His tone of voice, faltering at the outset, gained strength in the course of the interrogatories, the first of which led to his admission of his identity as the defendant and the statement of his being 24 years of age upon April 29, following which he testified to his marriage with the slain woman on February 23 last. Should be January.

             There was a marked difference in his demeanor and in his answers as he passed from-the questions of his own counsel to the cool deliberate queries of the attorney for the Crown as the latter, never once raising his voice, sought to entangle him in the meshes which might mean the gibbet were caught therein.

             His replies at first came slowly and in low voice, with nervous play of hands across his features; but when Mr. Kingstone had him fairly in hand, more semblance of life came into his crouching frame; and he talked back as the saying goes, displaying a grasp of the purport of the questions of the Crown, much lacking when his gruelling got underway.

Weaving the Net

             Calmly, but implacably, the Crown drew from him the admission that he had not felt like working and that he harbored the idea that his wife and his mother were taking measures to compel him to go to work; following which he made the admission that he must have intended to shoot his wife when he entered her bedroom.

             The shooting he had previously admitted, under direct examination; but in reply to Mr. Kingstone he made the statement that he did not know why he had fired the shot.

             The Crown, then supplementing the attempted establishment of motive, in the defendant’s statement that his wife and mother were compelling him to go to work, and premeditation in his admitting his intent to shoot the former when entry to her room was made, reverted to the former by the introduction of Stewart’s statement to Provincial Constable Jorgensen that jealousy was the impelling cause.

             Mr. Kingstone’s attempt to thus strengthen the motive theory advanced by the prosecution was met by the accused’s statement that he had no recollection of the statement to which Constable Jorgensen had testified.

             Neither did he recall the statement made Magistrate Goodwin while a patient in the hospital; but he did admit recollection of holding the weapon close to the body of his wife, who was sitting up in bed when the fatal shot was fired; and he also testified that no words passed between them previous to the commission of the deed; and made admission that his subsequent attempt to end his own life must have been due to his sorrow following the killing of his wife.

             At this point the Crown ended cross examination and His Lordship, following consultation with the jurors, some of whom were in favor of an evening session, adjourned court to Wednesday morning.

             The opening of Stewart’s examination by Mr. Macoomb brought out the dead wife’s age as 21 years at the time of the marriage and that the accused had first met her at the home of Mrs. Lambert, her sister, the latter being the woman who, with her children, was returned to England, following their desertion by the husband and father, who left them in a shack in Thorold Township.

             He testified to the establishment of illicit relations between himself and the girl within a month of their meeting, which relations, he gave evidence, continued regularly; the two living as man and wife until they were legally wed, through the intervention of his mother.

             Stewart told Mr. Macoomb that he had been subject to headaches following an attack of la grippe in the spring, and related other details of physical ailment.

Left School at 13

             He said he had left school at the age of 13 years, and that while he could read and write, although not following either practice, he had gone no further than the second book.

             He could not explain why he had jumped from a second storey window following an interview between his mother and a neighbor, to which act she testified; but he did remember the episode the morning of the day before the tragedy, when Chief Collins of Thorold had been called to the house by his wife, who was seeking legal action to compel him to go to work and support her and their child.

             He also acknowledged recollection of buying the shells with which the fatal weapon was loaded, stating that he had purchased them for the purpose of killing rats, and that he had shot a rat that afternoon in the barnyard, following which he had reloaded the barrel and placed the gun in the house.

             His father had told him, he said, to remove the shells, which he failed to do; and he then related his going to bed in the room adjoining that occupied by his wife and his mother; but he could not recall the incident of his going into their room in the middle of the night, as his mother had testified.

             Answering a question, he stated he was not a drinking man.

             “I have never tasted booze,” was his declaration.

             He acknowledged memory of getting up upon the fatal morning and of re-entering the house after being outdoors, stating that he thought he then lay down and went to sleep.

             He testified that when he again arose, he went and got the gun.

             “Why did you get it?” asked counsel.

             “I do not know,” was his reply; following which and in answer to a question as to what he did next, he made the direct admission, “I shot my wife.”

             He then described his entry into the room, where he found his wife with their baby, sitting up in bed; and related that daylight was just breaking and that he had said nothing to her nor she to him.       

 “I Shot Her”

             “What happened then?” queried Mr. Macoomb.

             “I shot her,” was the answer; followed by the statement that he did not know why he did it, and the admission that there was no quarrel between them and no anger upon his part against her.

             He then told how he had placed the gun close to his own body and pulled the trigger; claiming that he could not remember exactly what he had done; the examination finishing with his statement that he thought he had told Constable Jorgensen that he fired because of jealousy.

             A recess was here ordered by the Court, following which Mr. Kingstone took the defendant in hand for cross-examination; at the onset of which a visible stiffening of the man was plainly evident.

             Calmly and almost casually, but the while weaving the shuttle in and out, the Crown Prosecutor started to spin the web in which he hoped to enmesh the accused man.

             He drew from the tale of his first meeting with the murdered woman, then living with her sister, Mrs. Lambert at Niagara Falls, of their intimacy and of his mother’s insistence upon marriage, when the girl’s condition was discovered by her.

             He asserted that he was not of a jealous disposition, but admitted that his likes and dislikes were strong.

             He maintained that he was not afraid of any one winning his wife’s affection away.

             At 6:30 the court rose, concluding a two hours session in the witness box for the accused.

The Mother’s Tale

             The mother of the accused testified to the young couple coming to the Stewart home in February following their marriage the previous month.

             She gave evidence that at 2:00 a.m. the morning of the murder, Herschell had come into the bedroom she occupied with the latter’s wife and baby, and had looked at her and at his wife “with a wild glare.”

             She arose that morning at four o’clock and after Stewart Senior had left for work; her son appeared and went outside, watching his father’s departure, then coming in and “looking wildly into my face.”

             She then heard the sound of a single shot, following which she roused her sleeping sons.

             At this stage, the mother broke down, but upon recovering, continued her story of going to the door of the bedroom, where she saw her daughter-in-law “lying upon the bed with a big spot on her side and fire all around her.”

             Under cross-examination, she testified that she had married at 17, and was the mother of nine children. When she discovered the condition of the girl, she had insisted upon the marriage, which was performed January 22, her grandchild being born May 24.

             Her son had changed altogether after the commencement of his relations with the girl.

             She stoutly defended the character of the latter, testifying that there had been no clandestine or other intimacy with other men upon the part of her son’s wife.

             The mother narrated details of the tragedy, subsequently confirmed by the evidence of the accused; and in reply to Mr. Kingstone, said that it was the tragedy itself that first made her feel there was something wrong with her son’s mind.

             Wm. Stewart, a brother, age 22, told of being awakened by his mother’s screams following the shooting, and described the scene in the bedroom where the victim and her husband lay.

             He gave testimony to a change in his brother’s actions a short time preceding the shooting but did not advance any material details on this point.

             The Crown here rested its case.

             Wednesday’s morning session opened with the calling of Mr. and Mrs. M.J. O’Reilly, neighbors of the Stewarts both of whom gave unimportant evidence of their observations of a change in the dress and habits of the accused after his return to his home as a married man and of his different attitude towards them, which assumed that of enmity rather then one of a friend, which had previously marked their neighborly relations.

Brilliant Fencing

             There then came the first of a three-round forensic battle between Mr. Kingstone and three members of the local medical fraternity.

             The first of these witnesses, called by the defense to establish the accused’s mental incapacity was Dr. W.G. Reive who testified to such incapacity and who rated Stewart as a 10-year old in brain power.

             Dr. Reive stated he had made several mental examinations of the accused, all of which had found him below par; and he stated that these examinations revealed no real motive for the admitted deed and that, in his judgment; Stewart might be rated as a sexual pervert, who was not in his right mind when he shot himself; basing that opinion upon the belief that no suicide was wholly sane.

             Dr. Reive further stated, after much pressing, that he was unable to make any sworn statement as to the insanity of the accused at the time of the commission of the crime.

             Upon redirect examination by Mr. Macoomb, testimony covering the nature of dementia praecox was introduced; and the doctor stated that the defendant might possibly stand as an example thereof.

Mind Against Mind

             Mr. Kingstone then crossed swords with Dr. E.E. Binns, who proved no mean antagonist and who may be set down, appeared to give the learned counsel as good as he sent.

             All in all, it was a highly enjoyable clash of wit and wit.

             Dr. Binns related his examination of Stewart in the jail; the results of which examination and his hearing of the testimony given at the trial formed basis for his opinion that the accused was more of the animal than a normal nature; which opinion he followed by testimony regarding the defendant’s cranial structure and his physiognomy, both of which, in the opinion of the witness, were indicative of degeneration and lack of inhibition.

             The doctor further held that the accused was laboring under the uncontrollable impulse at the time of his purchase of the shells, the day proceeding the shooting; and he gave testimony of what he termed sexual complex, and advanced the belief that Stewart’s action in wounding the murdered woman and himself in that portion of the body into which the shots were fired followed the trend of Jack the Ripper and other sexual perverts recorded in criminal and medical science.

Stewart Out to Kill

             His testimony was concluded at 1:30 following which adjournment was taken, the reopening of court finding Dr. W.K. Colbeck, the third of the medical witnesses of the defense, upon the stand.

             Dr. Colbeck made the statement that in his opinion Stewart did not know the difference between right and wrong the morning of the shooting.

Knew What he Was Doing

             This concluded the defense, and at 4:30 p.m., Dr. William Murray English, Superintendent of the Hamilton Hospital for the insane, was called by the Crown in rebuttal.

             The witness stated that he had made two examinations of the accused in the jail and had heard all the testimony introduced at the trial; as a result of which he was prepared to say that “On the morning of the shooting I believe Stewart knew what he was doing; I believe he knew his act was wrong; I believe he knew what the consequences would be.”

             Mr. Macoomb sought to attack this opinion in his cross examination, bringing out the statement that Dr. English regarded Stewart as a man of fair mental standard and normal for one of his class.

What The Defense Claimed

             At 5:30 Wednesday Mr. Macoomb commenced his summing up, which occupied him for thirty minutes.

             After defining the charge of murder, he submitted to the jurors that the whole issue lay in the question: “Was the accused in his right mind?” because first–degree murder implied intent and if the defendant was not in his right mind, intent was lacking and no charge of murder could lie.

Brutal and Callous Murder

             Mr. Kingstone occupied forty minutes in his address, which he opened by terming the killing a most brutal, callous murder, unless the perpetrator was actually insane.

             At 6:40 p.m., His Lordship adjourned court until this morning, when his charge to the jury would be delivered, committing the jurors to the custody of Sheriff Davidson, who had arranged quarters for them at the Hotel Reeta where they also spent the previous night.

The Charge

             The charge of His Lordship Mr. Justice Rose occupied one and one half hours at this morning’s session, the salient point delivered at its close appearing to be his reference to the prisoner’s testimony in the witness box, which virtually demolished all defense and swore his own life away, and which he asked the jurors to consider in its bearing upon the mental capacity of the man as being even at this late date in a condition to appreciate this acts and their results.

             ‘It must be an extraordinary honest man who would thus testify,” was His Lordship’s comment, “or weight must be given to the testimony of Dr. Reive that he believed Stewart could not now appreciate what he might say or the effect thereof.”

             The justice also alluded to the accused’s actions immediately following the shooting, when his brother found him endeavoring to climb upon the bed where his dead wife lay and his subsequent request that they “move Lilian over because I am not comfortable.”

             Did this, ask His Lordship, seem compatible with a realization of what he had done?

             He said that the sole question before the jury was the prisoner’s mental capacity, which would decide his guilt or innocence, and that a verdict of guilt or one of not guilty upon the ground of insanity must be rendered.

             The major portion of his address was devoted to an exhaustive review of the evidence, particularly that of the medical witnesses, of which Dr. Binns’ received the most attention, it being contrasted with that of Dr. English, whose opinion in the mind of His Lordship, conformed more to the legal aspect, while those of the other physicians dwelt upon its medical phases.

             He held that the Crown alienist and the defense medical witnesses had apparently started from different points and that the formers’ was that of the legal interpretation.

             At the close of the charge, 11 o’clock, the jury retired to consider its verdict.

 The Welland Tribune and Telegraph

8 November 1923

  1. Kris Stewart Said,

    Thanks for this great transcription! Hershell was my husbands great grandfathers brother. Does anyone know when he died?

  2. B Said,

    Good Morning Kris

    I do not know when Hershell died. At the time of my transcription of the story, I did some research but was unable to determine when he passed. Will keep your enquiry on file. B

  3. Deb Said,

    He died in 1977 in Welland. He is buried in an unmarked grave in Woodlawn Cemetery.

  4. B Said,

    Thank you Deb for that update. I really appreciate knowing where he is buried.

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