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CANYON CITY, GRANT COUNTY; 1863:

Outlaw Berry Way got a fake trial, a real execution

Audio version: Download MP3 or use controls below:
By Finn J.D. John
June 3, 2018

Exactly 155 years ago today, Deputy Frank McDaniels arrived back home in Canyon City after a long and grueling manhunt.

Canyon City was, at the time, part of Wasco County. But Wasco County, seated in The Dalles, was a long ways off, and residents of Canyon City had learned not to expect too much in the way of county services.

One service that they did have was Deputy McDaniels, who was widely known and respected as a straight shooter, with high personal integrity, and a first-class cop.

McDaniels was exhausted. But he’d got his man. He had murder suspect Berry Way in custody, and now all that was needed was to bring him to The Dalles for trial.

A large group of local Canyon City miners had a different idea, though. Instead of going to all that trouble, with the possibility of Way getting let off by some bleeding-heart big-city judge, why not take care of justice right now, right here in Canyon City, DIY-style?

By the time McDaniels was settled in with his prisoner in one of Canyon City’s saloons, they’d already formed a committee, with a chairman and a secretary. They met in another saloon — apparently a very large one, because there were 460 of them — to get things organized.

Initially, their plan was simply to get hold of Berry Way and fructify the nearest juniper tree with him in classic vigilante style — no muss, no fuss. But Ike Hare gave an impassioned speech, urging the committee to, as it were, be a kinder, gentler lynch mob — and give the accused a full trial before hanging him. That way, it would be legit. Unlike, you know, those other mob killings that sometimes happened in the frontier West.

“Yes, gentlemen,” he concluded to approving cheers in what must have looked disturbingly like a scene from the movie “Paint Your Wagon.” “We will give him a fair and impartial trial. We know him to be guilty, and we will hang him anyhow.”

The matter was put to a vote, and the committee members voted overwhelmingly to give Berry Way that “full, fair trial” before stretching his neck. That settled, they hustled out the door of the saloon and across the street to the other saloon in which Berry Way was being kept, guarded by Deputy McDaniels.

They told McDaniels what they wanted. Nothing doing, he told them.

“I can’t release him,” he said. “I took an oath to protect and to see that the law is sustained. Everyone go home now and let the law do its job.”

The Canyon City citizens did not want to hear this. But Deputy McDaniels was a highly respected lawman, and his word carried a lot of weight. Grumbling, the crowd dispersed, and perhaps McDaniels thought that was an end to the matter.

If so, he thought wrong. A few hours later, when he stepped out of the saloon, a group of men who had been waiting for him pounced on him. They hauled him away and confined him, probably in some sort of makeshift jailhouse. Then they hustled back to the saloon and collected the now-unguarded Berry Way.

Way was wearing an Oregon boot and probably shackled to the bar as well. They shattered his shackles and, at gunpoint, marched him down the street to John Fenessey’s house.

Upon arrival, the committee set up a complete “miners’ court” according to their best recollections of how a court of law was supposed to work. One of their number was declared sheriff; twelve more were empaneled as a jury. One was appointed prosecutor, and another got to play the role of Berry Way’s defense attorney. Of course, none of them had any training or credentials. The closest to legitimacy this kangaroo court got was the judge, who was John Strowbridge, the local justice of the peace.

With all the “officials” in place and looking more or less like a real court proceeding, the trial got under way.

[EDITOR'S NOTE: In "reader view" some phone browsers truncate the story here, algorithmically "assuming" that the second column is advertising. (Most browsers do not recognize this page as mobile-device-friendly; it is designed to be browsed on any device without reflowing, by taking advantage of the "double-tap-to-zoom" function.) If the story ends here on your device, you may have to exit "reader view" (sometimes labeled "Make This Page Mobile Friendly Mode") to continue reading. We apologize for the inconvenience.]

        — (Jump to top of next column)

Howard A. Black, curator at Grant County Museum in Canyon City, Oregon, holds the skull of Berry Way and a “California collar,” or noose, of the type Way was hanged with, in this 1963 photograph. (Image: Ben Maxwell/ Salem Public Library)

 

Berry Way was probably guilty of the crime he was charged with, although of course we can never really know, and he maintained his innocence to the end. A couple months before, he had left with mule skinner Frank Gallagher on a pack train trip from Canyon City to The Dalles. The pack train had never arrived, and on May 1, some travelers had found Gallagher’s body near Cherry Creek — shot in the head, and robbed of everything, including his entire pack train and $80,000 in gold. And a little later, Berry Way was seen with some of the stolen goods.

When Deputy McDaniels had learned of this, he’d set out with a posse, caught up with Way, and arrested him. Then, late one night while the posse members slept, Way had slipped out of his bonds and escaped. The severely embarrassed McDaniels had actually put up $250 out of his own pocket as a reward for his recapture.

Eight days later, Way had turned up in the town of Auburn, and McDaniels had gone out, picked up his trail, tracked him down, and re-arrested him. And it had been on his return with his prisoner to Canyon City that the vigilance committee had formed, and taken matters out of his hands.

 

Now, in “court,” this whole story was presented to the “jury.” The “prosecutor” and “defense attorney” questioned and cross-examined witnesses just like on “Perry Mason,” and finally the “jury” retired to a separate room just like real juries do at real trials, and half an hour later they emerged to deliver their inevitable “guilty” verdict. The whole thing would have made for a pretty good Vaudeville comedy show, if not for the deadly gleam in everyone’s eye and the very real hangman’s noose waiting inevitably for the defendant like the curse of Oedipus at the end of it.

 

Berry Way was sentenced to be hanged, of course; but the committee, keen to differentiate itself from those barbaric lynch mobs that just murder people willy-nilly, voted to break with lynch-mob tradition by scheduling the “execution” for 2 p.m. the next day rather than just stringing him up right away.

And so the next day — June 4, 1863, exactly 155 years and 1 day ago — Berry Way stood on the makeshift scaffold, looking out over a crowd of about a thousand gawking faces. Invited to give his last words, he calmly told the crowd that he was innocent of the crime of killing Gallagher. He went to his death maintaining his innocence, despite full knowledge that he’d be hanged either way, and regardless of the protestations of clergymen who reminded him that he’d be damned to Hell if he died with a lie on his lips.

All of which may have led some in the crowd to wonder if they really had made a mistake ... and maybe, just maybe, to regret not having let him go to The Dalles for a real trial rather than settling for a locally produced Vaudeville courtroom-drama show.

Today, Berry Way’s skull is on display at the Grant County Museum in Canyon City.

(Sources: Goeres-Gardner, Diane L. Necktie Parties: Legal Executions in Oregon 1851-1905. Caldwell, Idaho: Caxton, 2005; Carpenter, Angel. “Gold and the Gallows,” Blue Mountain Eagle, 25 Sep 2012)

 

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