CHAPTER VI

PRISON EPISODE

[ Remarks by Pearl, quoting father's comments on the prison experience:

In the summer of 1932 we undertook assembling material about the prison experience and father said the following before we started writing ]:

"Right now we face the question of what to say and what not to say. Neither my children nor my friends are asking for any explanation of my going to prison on a charge of perjury. It was a case of the bitterness of the world against the servants of God. It was as cruel and cold-blooded, as vindictive and venomous a decision as any judge could make. He refused to let my witnesses testify. He knew and the people of Arizona knew that in my testimony in the Miles P. Romney land case there was no intent of perjury. In any perjury case it is the intent that counts. The official who took my deposition in the Romney land case was refused by the court an opportunity to make his explanation to the jury as to the question he asked me and of my answer.

"But why get wrought up about it now! A conservative course, one of moderation is the better way of approach. My own family, my own people are satisfied. Why try to bring

out an answer to some future, imaginary case? Why? Why not burn up these unpleasant prison papers? And yet, that will not do. My children's children will want to know the why of my imprisonment. My lawyer sons may dig into the pages of my case and legally vindicate their father on the very minutes taken in that court. I was told in a letter written by President John Taylor and President George Q. Cannon that they knew me and the saints knew me to be an honest man, and that this conviction would not becloud my honor. The President of the United States, Grover Cleveland, pardoned me. Thus, I was acclaimed an honest man by the highest tribunals in our nation and in our Church. Yet the sting remains!

"It is a wonder I lived through those prison days. I could not have survived, it seems to me, had I not been blessed with a constitution of iron and the faith and prayers of my brethren and my family."

To properly understand my humiliating and unjust conviction of perjury in the year 1885; the stiff sentence of three years imprisonment in the House of Correction at Detroit, Michigan; my exoneration within five months of conviction by a full and complete pardon from Grover Cleveland, President of the United States, it is necessary to understand the bitterness then existing toward the Mormon people--particularly their leaders--who had settled in St. Johns and vicinity.

The understandable resentment of the Mexican people against the establishment of a Mormon community to the west and immediately adjacent to their prior established village has already been recorded. As the Mexican and the Mormon settlers became better acquainted, lasting friendships developed, misunderstandings were amicably adjusted and the former hostility was dissipated. Not

so with a few of the renegade Gentiles who set out to drive the Mormon settlers from that area by fair means or foul.

As increasing numbers of Mormon settlers arrived in Apache County (which then included what is now both Navajo and Apache counties--the county division occurring in 1895) they became a formidable power at the polls. This gave rise to intense hatred and jealousy on the part of those who were then in power. A vicious anti-Mormon political organization, known as the "St. Johns Ring" came into existence. This "Ring" had as its chief aim the absolute control of the public offices of the county and the prevention of all Mormons from holding public office.

By deceit, fraud, ballot-box stuffing, miscounting of votes, and even by forcibly preventing Mormons from voting, the "Ring" sought to dominate the affairs of the county. In a few cases where Mormons were unquestionably elected, they were prevented by force and fraud from holding office.

The Mormons were harassed by the institution of framed-up criminal charges, lodged in the courts of magistrates who were altogether too often the obedient tools of this corrupt political ring.

A virulent anti-Mormon paper was started in St. Johns, called the Apache Chief, which was dedicated to the unholy task of advocating the forcible extermination of the Mormon settlers. The following editorial appearing therein, dated May 30, 1884, reveals the intense murderous spirit that actuated the leaders of the notorious "St. Johns Ring":

How did Missouri and Illinois get rid of the Mormons?
By the use of the shotgun and rope. Apache County can rid

herself of them also. In a year from now the Mormons will have the power here and Gentiles had better leave. Don't let them get it.

Desperate diseases need desperate remedies. The Mormon disease is a desperate one and the rope and the shotgun are the only cure. The government refuses to do anything, and the people of Apache County must do something or the Mormons will soon drive them out. Take the needed steps while there is yet time. Don't let them settle on any more of our lands; don't let them stop in Apache County; hang a few of their polygamist leaders such as Jesse N. Smith, Udall, Romney, Hunt and others of their nature, and a stop will be put to it.

The time has come when every man should declare how be stands on the Mormon question. If he wants an office, let him define his position thoroughly. No halfway cowards need apply. Nobody but outspoken, true-blue anti-Mormons will bold an office in Apache County. The good of the country demands this, and we expect every Gentile to see that it is carried out. No Mormon should be allowed to cast a vote. He has no rights and should be allowed none. Down with them. Grind out their very existence or make them comply with the laws of the people and decency.

The Mormons naturally fought back and did not take this vilification lying down, though they carefully avoided any acts of violence. They had acquired a paper known as the "Orion Era" and Miles P. Romney, a polygamist, was its first editor. He was later succeeded by J. B. Milner, an attorney formerly of Provo, Utah. Romney frequently made editorial "expose"' of the misdeeds of the "Ring," which only added fuel to the fire and caused them to center their hate upon Romney.

It was not long before an opportunity to vent their spleen arose. Some time previously Romney had made a homestead filing upon 160 acres of land lying in sections

4, 5, 8 and 9 in Twp. 9 N., R. 26 East, G. & S. R. M., known as the "Kitchen Springs." When he came to make final proof upon the homestead, Joseph Crosby and I were named as witnesses to establish his compliance with the land laws. The proof was taken on April 28, 1884, before Alfred Ruiz, Clerk of the Third judicial District Court at St. Johns. Before patent was issued, members of the "Ring" instigated charges of perjury against the entryman and his witnesses arising out of alleged false statements of the parties as to the continuous residence of Romney on the homestead.

In the spring of 1884, a criminal complaint for perjury against Romney, Crosby and me was filed before U. S. Commissioner McCarty at St. Johns. At a hearing held in June 1884 (Attorney Harris Baldwin represented me for a fee of $150) the commissioner refused to hold the defendants for action by the Federal Grand jury. It appears that the original depositions in the land proofs were in the United States General Land Office in Washington, D . C., and hence not available as evidence. But this was only the beginning, as upon the urging of their enemies the matter was further pressed.

Afterwards the case was brought before the Federal Grand jury at Prescott, who, after hearing my statement and that of Mr. Ruiz and other witnesses, refused to return "a true bill." Hon. John G. Campbell, a prominent citizen of Prescott, and a former delegate to Congress from the Territory of Arizona, was foreman of this jury.

The matter was later submitted to another grand jury, without our being apprised of it, and, as none of us were

permitted to testify, separate indictments for perjury were returned against Romney, Crosby and myself.*

The facts are that insofar as I was concerned, our enemies at St. Johns were desirous of having me prosecuted on a polygamy charge. But as Ida was out of the jurisdiction and could not be located to subpoena as a witness against me in that matter, they resorted to the "trumped up" perjury charge and finally made it stick.

A condensed summary of the crucial issue raised at the trial is contained in the following statement of my attorneys upon which President Cleveland acted in granting to me a full and complete pardon.

To his Excellency, Grover Cleveland, President of the United States. We, the undersigned attorneys, employed in the defense of David K. Udall, who was convicted of the crime of perjury in the month of August last in the district court of the third judicial district of the Territory of Arizona, do most respectfully represent to Your Excellency the following facts relative to the trial and conviction of the said David K. Udall.

From the evidence introduced it appeared that one Miles P. Romney had made his declaratory statement upon a certain tract of land in the county of Apache in said Territory of Arizona, and that afterward he undertook to make final proof before Alfred Ruiz, who was the clerk of the district court of the third judicial district of the Territory of Arizona and for the county of Apache.

That David K. Udall and Joseph Crosby were called upon as witnesses on the final proof.

That Ruiz, before whom the proof in the land matter was taken, swore the said David K. Udall as a witness, and

that his answers were taken down in writing, and that in answer to the question as to whether Romney had continuously resided upon the land his answer in the deposition is "Yes."

The evidence produced at the trial, however, went to show or tended to show that Romney had not continuously resided upon the land.

Upon the trial in the district court the defense asked Mr. Ruiz, the clerk before whom the proofs in the land matter were taken, if Udall made any explanation or qualification to his answer to that question of continuous residence. The court, however, ruled that the answer was plain and unambiguous and sustained an objection to the testimony of Ruiz. The court held that the written deposition of the defendant Udall could not be contradicted or explained.

The defense then offered to prove that when the question of continuous residence was put to Udall by the clerk, Ruiz, that he, Udall, answered "No." That Mr. Ruiz, the clerk, then said, "Has he (Romney) abandoned the place for six months at a time?" That Udall replied, "No, he has not, I have passed by the place and been there on the place at different times and have seen members of his family and hired men there making improvements, and I saw nothing that indicated an intention to abandon it." Ruiz, the clerk, then said that under the law that constitutes continuous residence. Thereupon, Udall said, "If that is so, I can answer "Yes." The court refused to permit us to make such proof and ruled that Udall's answer being in writing and not ambiguous could not be contradicted or explained.

This proof we offered to make by several different witnesses, including Mr. Ruiz, the clerk, before whom the deposition was made, and the defendant himself, but the court sustained the objection to all evidence of that character for the reason above stated.

The jury found the defendant guilty and the court sentenced the defendant to imprisonment for a term of three years in the House of Correction at Detroit, Michigan, where he is now serving out his sentence.

While technically the verdict of the jury in this case may have been correct, yet we do say that had the defendant been permitted to prove the explanation made by him at the time the deposition was taken, then the verdict would have been different in our judgment. We take it that the law does not intend that anyone be punished when the willful and corrupt intent is lacking.

In view of these facts we most earnestly urge Your Excellency to examine carefully and fully into the annexed papers which bear out our statement, and if consistent with reason and justice, that David K. Udall be pardoned and restored to his family and friends.

The attention of Your Excellency is respectfully called to the statement of Honorable J. A. Zabriskie, United States Attorney for Arizona, who, in person, prosecuted the case; the statement of Alfred Ruiz, clerk of the district court, before whom the deposition of David K. Udall in the land matter was taken, together with all other papers hereto attached.

As you requested in my conversation with you that I would express my views in writing in regard to the new feature of your case, I submit the following:

I believe that technically speaking this evidence in your case and the law applicable thereto justified the verdict of the jury.

Since the trial, however, I have reflected and deliberated carefully over additional facts which could not be presented at the trial.

I am credibly informed that when asked by the clerk of the court (before whom the testimony was given) if residence of Romney bad been continuous, that you replied in the first instance, "No"; and subsequently, you swore that it had been continuous upon the statement of the clerk that the existing facts constituted, in contemplation of the law, a continuous residence. While the law will not permit A man to change his oath pertaining to a physical fact from the negative to the affirmative, I am now of the belief that you changed your testimony because of the clerk's explanation of the legal intendment of the word "continuous."

If this is a fact, then the willful and corrupt intent was wanting, and without this character of intent, the crime of perjury is impossible. (Emphasis supplied).

I am free to confess that a careful review of these points, impartially, has raised in my mind a reasonable doubt of your guilt, and I am willing to grant you the benefit of that doubt. You may use this as you please.

Bishop Udall, found guilty of perjury last Wednesday, was sentenced this morning in court by Judge Howard to a term of three years in the House of Correction at Detroit. The bishop has polygamous indictments yet hanging over his saintly head to answer to, and a regular see-saw game is in store for him.

Bishop Udall declares his innocence in the perjury case and relies upon his friends to assist him in gaining freedom.

Arizona Weekly Journal, August 12, 1885. Editorial Under the Clock:

The verdict of the jury in the third district court, in the case of the United States vs. Bishop Udall, the leader of the Mormons at St. Johns Stake of Zion, which was speedily followed by the imprisonment of the polygamous leader in the jail to await sentence for the crime of perjury, is another evidence that the land of Arizona is not a congenial place for the propagation of Mormon practices. Bishop Udall has for several years been the leading spirit of the Mormon sect in Apache County. He stands indicted in the United States District Court for the crime of polygamy and was, by Chief justice Howard, committed to the common jail to await his sentence on the conviction for the crime of perjury, committed in the U. S. Land Office in the proceeding to prove up the pre-emption claim of Romney, editor of the Orion Era, the Mormon Oracle of the territory. Brother Romney, who is also indicted for perjury in the same proceeding is non est. His faith in lawyers and "inspired" legal subterfuge was not strong enough to prevent flight, but his bondsmen will no doubt invoke the law to secure his return from Mexico in exoneration of his bail--"so mote it be."

These prosecutions, to those acquainted with the modusoperandi of the Mormon Church in taking possession of Arizona as they had of Utah, are of great importance. There is not a cultivable valley in Utah that is not under the control of the Mormon polygamous priesthood. In the valleys of this territory where the lecherous bishops exercise more than despotic sway over the lands, streams of water and every desirable location where there is a show for agricultural enterprise, the Mormons are colonizing and they are controlled by the Church. These locations are and have been made in fraud of the government and by perjury as to the actual location and occupancy of the government lands.

We hail with pleasure the dawn of the day when honest individual settlement of our productive valleys shall be protected by the law against the intrigues and grasping designs

of the polygamous hordes of Mormonism, sent out from Utah to occupy, control and contaminate our beautiful territory. All honor to Arizona juries, they will do their duty and receive their reward in contemplating the grand picture of a settlement of Arizona by a free, honest, and virtuous people who owe no allegiance to treasonable, lecherous, bigoted priesthood. Brother Milner of the Orion Era will please rise and gush over the persecutions of the saints. Selah. (J. C. Martin, editor).

Arizona Weekly Journal--Court Items-Friday, August 14, 1885:

Bishop Udall, for perjury, and Sterling for passing counterfeit coin, were sentenced yesterday morning by Chief justice Howard, to three years imprisonment each, in the U. S. jail at Detroit.

In reply to the court's question to the prisoners, whether they were desirous of saying anything for themselves before sentence was pronounced, Counselor Herndon, by permission of the judge, read a statement on behalf of Udall, prepared by the prisoner himself. It was a short narrative of Udall's life--that lie was born in 1851, came over the plains to Utah in 1852, with his parents whom he assisted on their ranch till he was 21, when he married and came to Arizona, where he was prosperous until the last two years when he was ruined by going security for a friend, and that at the present time his family was homeless and destitute. He urged that he had been misled through the information he had received at the Land Office, as to the meaning of continued residence and concluded by avowing his innocence of any intentional crime.

It should be stated that before Udall was called on to rise and receive judgment, judge Rush made a strong appeal to the court to pass a merciful sentence, and that the United States District Attorney expressed his concurrence in desiring the court to give the prisoner the benefit of any doubt it might have.

Copy of editorial appearing in the Albuquerque Morning Journal, Thursday, August 27, 1885:

David K. Udall was convicted of perjury a few days ago in Prescott, Arizona, and sentenced to three years' confinement in the penitentiary. Joe Crosby was tried at the same term of court for the same offense on precisely the same state of facts and acquitted. Udall is a bishop in the Mormon Church, and Crosby is a lay member of the same Church. It is, to put it mildly, a curious administration of justice that will arrive at precisely opposite conclusions in two cases from the same state of facts. We never knew Udall and never beard of him until the Arizona papers brought us the result of his trial, and as the conviction of a bishop of the Mormon Church of an offense that had nothing to do with his peculiar form of religious belief, followed by his sentence of three years' confinement in the penitentiary, has excited much comment we have felt some curiosity to learn something of the case. If the facts are as we have heard them, Crosby was very properly acquitted and Udall should have been treated the same way. It seems that one Romney bad a ranch near St. Johns, and he wanted to "prove up" on it before the clerk of the district court in the manner required by law. This necessitates the testimony of two witnesses that Romney bad not abandoned the ranch continuously for six months since lie took possession of it. Udall and Crosby, who were familiar with the facts, were procured as witnesses, but Mr. Udall in answer to the question put by the clerk, preferring not to answer either yes or no, asked that his statement as to Romney's residence upon the ranch should be put down in extenso, so that the clerk might judge for himself as to whether his testimony was sufficient. Upon being interrogated by the clerk as to the facts in the case, and it appearing that Romney had not been absent for six months continuously at any one time, Udall was informed that he could safely answer yes, which he did. He was subsequently indicted and convicted of perjury on this

state of facts, and Crosby, on the same state of facts, was indicted and acquitted. If Udall committed a felony in the case, so did Crosby, and he deserves the penitentiary as much as the unlucky bishop. But it is bard to see how either of them committed an offense of even the gravity of a misdemeanor. If either or both of them were guilty of the disgusting and inexcusable crime of polygamy we should be glad to know that they were paying for their fun in state's prison, but to convict them of any offense they were not guilty of merely to get even with them because they were Mormons of an offensive stripe, and were either not guilty of, or couldn't be proved guilty of polygamy, is a system of justice that might have been popular under the administration of Lord Jeffries in England, but is utterly incompatible with the prevailing ideas On the subject in this country. It is a good thing to nab a Mormon bishop when he is guilty of practicing his polygamous doctrines and "cinch him" until he is perfectly cured of his lawless indulgences, but it is a very bad thing, indeed, to convict such an individual of the grave crime of perjury and acquit another man of the same offense on the same state of facts. There is something wrong about it somewhere. Perhaps Brother Reed, of the St. Johns Herald, could give us light on the subject and put us in possession of facts that would change the aspect of the case. We understand that Udall is a man of high character, and that this was proved by leading citizens of St. Johns. The best way to fight polygamy is to strike straight from the shoulder and hit it fair and square, and the best way to perpetuate that offense and give it a vitality and stamina it would not otherwise possess, is to lock up Mormon leaders in the penitentiary convicted of offenses they are not guilty of and thereby make martyrs of them and create the impression that they are being prosecuted for their opinions sake.

Prison rules were rigid. All mail was censored, both coming in and going out. It was contrary to prison rules to keep a journal, but I presumed to slit the envelopes

of mail received and wrote on them some of the happenings and thoughts of those trying days.

We brethren rented a room and stayed together during our trials until, one by one, we were convicted and imprisoned: Ammon Tenney, Brother Kempe, Brother Christopherson, and Brother Flake. Each night found one less in the group than had been there in the morning! My own turn came a little later.

The following quoted items were written while I was in the Yavapai County jail in Prescott and the Detroit House of Correction in Michigan, August to December 1885.

Prescott, August 1885. The jury went out about four p.m. on the 6th and remained out only one-half hour, and then brought in a verdict of guilty to the utter surprise of everyone whom we had heard speak of it.

About five o'clock August 6th I was put in prison. The room is about 40 by 30 feet, mostly underground. It has ten iron cells in the middle of the room. The windows and doors have heavy iron gratings and the walls are stout and about three feet thick. Instead of putting me in a cell the jailer allowed me to sleep in the corridor. God only knows the misery of soul I endured in coming in here. My trial and Brother Crosby's have been almost more than I can endure.

The history of the proceeding has been kept in the Defense journal. A great many citizens of this town consider the verdict an outrage, and I here record, calling on God to witness, that I am not guilty of perjury. I was honest in my intentions and did not have it in my heart to defraud the government by being one of Miles P. Romney's witnesses in making final proof on his land. if Alfred Ruiz, clerk of the court, under whom I made my deposition, had said that what I said in my testimony was not continuous residence I would not have signed the paper. The testimony of Ruiz, Crosby, or of myself, was not admitted in court on the question of what transpired in the clerk's office. Therefore, it

looked very dark to me in going on with my trial. The sentence will be passed next Monday at ten a.m.

August 7. I could not sleep all night for the thought of my condition and the way my character has been assailed and I have not been permitted to defend it. Then the condition of my family, scattered as they are and without a home and the necessities of life. It nearly worries the life out of me. The boys called to see me several times today. The lawyers are working hard to obtain a light sentence.

My fellow prisoners are four Chinamen, three of whom are in for smoking opium, and one for selling whiskey to Indians, one Mexican boy for burglary, and one Irishman for assault on an officer, and one white man for collecting money without authority, and a Mr. Sterling for counterfeiting, and a Mr. Cook was put in today for assault and drunkenness. The days are terribly long.

Saturday the 8th. The prisoners are all very civil to me. I cannot eat the prison fare, it is such a scrappy dirty bash.

Brother Crosby is working bard for me, also Hon. J. G. Campbell, Mr. Kelly (former agent of the land office) and Hon. E. W. Wells; and others have been to see the judge to have him pass a light sentence.

Oh, God, deliver me from Hell and give me my liberty. If I am to suffer imprisonment, let it be for my religion and not for the heinous crime that I am charged with, which will be a disgrace to me and my families through life. Save my character and me from this disgrace. To Thee I come for aid, for help in this my hour of great trouble and distress. Thou alone cans't deliver me.

Sunday, August 9th. Attorney Baldwin called today. He thinks I will be reprieved in a few months. Zabriskie, by my request, called on me in the jailer's room. I was pleased to meet him. I told him my side of the case. He told me he would sign a petition for my release and would be satisfied with any sentence the judge might pass. He was pleased by my explanation of the case.

Monday, August 10th.  Agreeable to the order of the court, I went into the courtroom at ten a.m. to have sentence passed

on me. I felt very much humiliated for there was a large audience present. Of all crimes perjury is the most detestable to me, and then to be convicted and sentenced for it is terrible. I have this consoling fact, however, "I am not guilty." This helped me to nerve up so that I did not break down in court. Judge Rush made a feeling speech in my behalf, declaring that a mistake had been made and that I was innocent. Then by permission of the court, Mr. J. C. Herndon read a written statement of mine in which I declared my innocence before God and man, also giving a short account of my life and labors and the reasons why I signed and made the deposition in Romney's proof on his homestead. Judge Howard said I had had a fair trial and was found guilty. That a man of my intelligence was more culpable than were others and that if a mistake had been made it could be remedied in another way. He passed sentence of three yearsimprisonment in the Federal House of Correction in Detroit, Michigan. He said he was going to fine me $500, but on hearing my statement be scratched that off. I was remanded to the custody of the marshal and taken to prison again. At the time I was sentenced Charles Sterling, aged 35 years, was also sentenced to three years' imprisonment for counterfeiting.

The boys left for home shortly after my sentence. They have been true to me. Times look dark ahead. The Lord is my strength and will deliver me in His own appointed way. I have been permitted to keep my valise and enough of my clothes for my comfort.

August 11. Brother Joseph Crosby and Attorney Baldwin left this morning for home. I wrote a letter to father giving him an account of my trial, etc. The day has passed tediously. My fellow prisoners are vulgar, profane and low men--no company for me. The lawyers have not been in to see me today. The daily papers here go against me heavy, rejoicing in my calamity and my imprisonment.

August 12. The day passed a little more quickly today. I have hope for a Presidential pardon. The jailers are quite uncivil.

August 13. Slept in the iron cell again last night. The body can be put in an iron cell but the soul never by the help of God. I have sweet communion with my God and I feel that Holy Angels

are with me. My thoughts are pleasant and my blessings are a great comfort to me. I wrote a letter to Ida today. Poor girl has had a hard time during the last year.

August 14. I wrote a letter to my brother, Joseph, in regard to our business matters. I have been reading Shakespeare and the newspapers and studying geography.

Sunday, 16th. I was in the yard this morning. I had a barber come in the jail and cut my hair and shave my beard, all but my

mustache--the first time I have shaved since June 1875, more than ten years ago. I would not shave now, but feel that it is in keeping with having been shaved of about all I own--that is, my good name and honor, which are cast aside with disdain.

If I could hear from my family and know they are well I would feel much better. I was in the yard again this evening and the judge spoke to me from the sheriff's window. He seemed quite courteous.