Past, Present & Beyond – Death on the Range – Pt. V: In the hands of the Courts

Part five of Barbara Roden's tale of greed and murder in the old west.

The first inquest into the shooting death of Thomas Burton Smith, scheduled for Feb. 15, 1915, had been held over pending “further developments”. Those developments included the arrest of Smith’s partner, Albert Lester “Chubby” Clinger, who claimed that Smith had robbed him while the pair were on the way to Ashcroft, and had then fled into the night.

The discovery of Smith’s body with a bullet hole through the back of his head had made the matter much more serious, and every piece of evidence that District Chief of Police Frank Aiken found pointed in the direction of Clinger as Smith’s killer. The clincher was a cheque drawn on Smith’s account, and supposedly signed by him – but it was dated a week after the man had died. Comparison with a letter written by Albert Clinger showed that the cheque had been forged by Smith’s erstwhile partner.

A second inquest was held in Clinton on Mar. 4, 1915, and Aiken’s evidence was laid before the jury. The Ashcroft Journal of Mar. 13, 1915 included a report on the inquest, which was held by Coroner George Sanson. The proceedings lasted most of the day, and at around 4 pm the jury brought in a verdict “that the deceased had come to his death by a bullet from a gun held in the hands of one Chubby Clinger”.

Clinger, who had been in custody for more than two weeks, was immediately brought before Magistrate Lunn for a preliminary hearing which lasted through the evening and continued the next morning. Chief Constable Frank Aiken conducted the proceedings, which saw more than a dozen witnesses called to give evidence. Who they all were, and what they said, was not recorded; but the upshot, which was almost certainly never in doubt, was that Clinger was sent up for trial at the Clinton Spring Assizes, scheduled to take place in May.

Courts of Assize, or Assizes, were criminal courts which were held at regular intervals – quarterly or bi-yearly – in different locations. Local courts would hear details of cases within their jurisdiction, and pass the most serious cases on to be dealt with at the next local Assizes. The system originated in England in the thirteenth century, when a scattered population and difficult travel conditions meant that it was impractical to hold all major trials in London, but prohibitively expensive to have permanent courts, with lawyers and judges, all around the country. Thus the Assizes was a sort of traveling courthouse, visiting different locations on a regular schedule to hear major cases which needed the experience of seasoned legal professionals.

The murder of Thomas Burton Smith – or Rex vs. Clinger, as it was formally known – was one of four capital cases due to be heard over the course of the Clinton Spring Assizes in 1915. Rather less seriously (but still obviously important enough to be heard at the Assizes), the session also featured a case in which a man was accused of the theft of one steer, property of the Marquess of Exeter (who owned Bridge Creek Ranch near 100 Mile House). Clinton’s courthouse had burned down some time previously, and as a replacement had not been built the one-room Clinton schoolhouse, built in the 1890s of locally made bricks, was turned into a makeshift courthouse whenever the Assizes were in session.

Without a schoolhouse, the children of Clinton were free to play outside for the duration of the trials, so it’s not hard to imagine that an occasion which brought punishment to some was seen as no punishment at all by the students. Eventually a new, larger schoolhouse was built, and the old schoolhouse became the full-time courthouse until the 1950s. In 1956 it became home to the Clinton Museum and Archives, a function it serves to this day.

Frank Aiken had not been idle in the weeks leading up to the trial. Somewhere he had found an unsigned bill-of-sale, supposedly written by Thomas Burton Smith, which left all of Smith’s personal effects to Albert Clinger. It also left to Clinger the property and house which the two men had jointly owned at Springhouse Prairie. This in itself was a damning piece of evidence, for it gave Albert Clinger an even stronger motive for killing his partner than merely gaining access to the $1,000 Smith had in his account at the Bank of British North America in Ashcroft. However, an examination of the bill-of-sale made it even more damaging to Clinger, for it proved to be written in Chubby’s own hand.

It is safe to say that the 1915 Spring Assizes in Clinton were highly anticipated, and the brick schoolhouse doing duty as a court would have been packed with observers keen to see all of the trials scheduled for the session. The disappointment must have been palpable when it was announced that the case of Rex vs. Clinger was to be “traversed” – held over – to the Fall Assizes. It turned out that Constable Jack Bourne, who had assisted Aiken in finding the body of Thomas Smith, and who would undoubtedly be a key witness at the trial, was unable to attend. The Ashcroft Journal of May 15, 1915 reported drily that Bourne was prevented from attending “because of an accident to himself while pursuing a runaway prisoner through the window of a moving train near Squamish”. In what sounds like a scenario ripped from a blockbuster adventure film, Bourne – whose very surname says “action hero” – was badly injured by broken glass when he managed to retrieve a prisoner who was trying to escape custody by leaping through the window of a Pacific Great Eastern Railway train.

Albert Clinger now had five months to wait before he could have his day in court. The case against him seemed open-and-shut; but he would have an opportunity to speak, and lay out his side of the story. And that side of the story proved to be very compelling indeed.

To be continued

Barbara Roden

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