When berry picking turns deadly

A retrospective 1898 Gloversville Daily Leader article discussed Grant’s rather unusual case, informing readers, “In 1863, counselor McIntyre Frasier was allowed one hundred dollars by the Board of Supervisors for defending Horatio Grant who resided a few miles north of Gloversville, where he claimed to be the owner of a fine blackberry patch.” The total cost paid out for Grant’s defense covering two trials would eventually rise to $350.

What happened was this: In the late summer of 1860, just as they do now, delicious wild blackberries make themselves available for mankind’s pickings along woodland trails and the edges of highways, a man named Collins and several companions from Johnstown were busily picking them in a rural berry patch. Meco area farmer Horatio Grant discovered them picking away on what he considered his property. Contemporary newspaper accounts agree that Collins was “armed with a gun”, although no specifics were given as to what sort of gun it was.

When Grant angrily ordered them to leave, the newspaper reported “they still continued to pick the berries.” Taking the story from the 1898 Leader’s narrative, “Grant then disappeared. A little while later Collins, becoming somewhat alarmed, remarked as he climbed upon a stump, “Where is the old cuss?” Suddenly there was an almost simultaneous report of two guns and Collins fell from the stump, badly wounded. He was carried away by his companions to his home near Johnstown where, after suffering for several weeks, he died.” For some reason it wasn’t until almost eight months later, on April 3rd, 1861, when Horatio Grant was finally indicted for murder in the first degree, and not until Oct. 2 when the case went to trial at the Fulton County Court House before Judge Platt Porter and 12 hopefully good and true jurors, a surprisingly long wait between arrest and trial for those old times.

Since Collins, being dead, was incapable of rendering his version of the affair, his berry-knapping companions were all called to testify.

“At the trial, ten witnesses testified for the people and eleven for the defendant.” Grant was not only convicted of first degree murder and sentenced to die, but for some unexplained reason he was also sentenced to languish at Dannemora Prison, serving at hard labor until his death sentence could be carried out. Perhaps there was an executioner’s waiting list, or maybe Judge Porter intended this daily regimen of hard labor exercise to keep Grant in tip-top physical condition for his execution.

While Horatio Grant must have temporarily done his share of hard labor, his execution never took place. Why? During his trial, Grant had been represented by two of the Fulton County’s most capable attorneys, McIntyre Frasier and Martin McMartin, both high-profile types who didn’t like to lose and seldom did. Through their strenuous appeals to higher level courts, Grant was eventually awarded a new trial which began under Judge Augustus Bockes of Saratoga, a jurist who, judging from contemporary newspaper accounts, seems to have been almost as highly regarded as our own Judge Daniel Cady. Grant’s second trial began on April 8, 1863. Frasier and McMartin were indeed clever lawyers. Their defense strategy at this second trial was based on the one question never satisfactorily answered by any of the witnesses who had testified at the first trial, that is, who actually fired the first shot, and if Horatio Grant only fired the second shot, was it fired towards Collins intentionally or as an uncontrollable reflex action caused by having been already fired at by Collins?

Frasier and McMartin artfully argued that if Grant’s shot was discharged solely by reflex action the second afer he was shot at by Collins, then his firing of the fatal second shot that eventually killed Collins was uncontrollable, and if so, the shooting of Collins was indeed accidental. Was it or wasn’t it? Unless this question could be answered beyond the shadow of a doubt, Frasier argued, then the shooting of Collins should be ruled an accident, and the prisoner released. This was the same question Grant’s skillful attorneys had already argued successfully before the New York Supreme Court’s justices, and thereby succeeded in convincing them that Grant deserved a second trial.

But which man really did fire the first shot? At the first trial, the other witnesses present at the berry patch could only testify that each man had fired once, and that the two shots fired were so close together — “virtually simultaneous” as one witness testified — that no one could testify for sure who fired first.

It was a religious age, a time when no one on any jury wanted to bear the thought of sending someone to the gallows without absolute proof of guilt, something they simply could not determine. Frasier and McMartin’s clever strategy of casting uncertainty in the minds of the jurymen worked. They quickly ruled Horatio Grant innocent of homicide, and Judge Bockes ordered him released.