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“Let them come and hang me,” Smith told reporters. “I’m ready to die. I’m 64-years-old, in very bad health, and can’t live many years longer anyway.”

The 60-year-old Gabriel, locked in an adjoining cell, said nothing.

Neale’s father was George H. Neale, the court clerk for both trials. Unlike the Union, he pleaded for justice through due process.

For his safety, sheriff’s deputies took Smith by train to Los Angeles on October 6. After a long trial, beginning December 11, the jury declared Smith not guilty by reason of insanity. He returned to Diego in 1896 and lived many more years as a fisherman near the north county line.

Smith’s exit to Los Angeles may have mollified the mob, some. But on December 16, a huge crowd crammed into Department Three of the superior court to hear Judge Puterbaugh pronounce the sentence.

Gabriel “presented a pitiful sight,” wrote the Union reporter, “sitting there alone.”

By this time at least four mobs had threatened his life: the night of the murder; on the road to Otay (near National City) for the preliminary; at the hearing; and the night of the vigilantes. Plus, neither he nor Smith could sleep in their cells, as hecklers screamed curses all night and gunshots punctuated their hatred.

In court, Gabriel still had his head wrapped in a cloth. “The murderer appeared more feeble and aged than ever before,” wrote the Union. “His face was deathly pale; he looked neither to the right or the left, but kept his gaze fastened on a law book lying in front of him.”

Defense attorney Rawson demanded a mistrial. The jury, he said, arrived at the verdict “by chance.”

Puterbaugh dismissed the plea. He read: “Whereas, Jose Gabriel, having been duly convicted in our Superior Court of the County of San Diego, of the crime of murder in the first degree, and Judgment having been pronounced against him, that he be hanged by the neck until he is dead in the State Prison of the State of California on the third day of March 1893.

On the document, Puterbaugh blacked out “punished by imprisonment” and wrote in longhand above it “hanged by the neck.”

The courtroom, writes the Union, became “as quiet as the grave. ‘Indian Joe’ was not excited, apparently, but, turning to the interpreter, said: ‘Tell him I want to be hanged in the day time, not at night.’”

“This was all he said, and the judge granted the request.” The bailiff then led him away.

On December 18, Gabriel and a sheriff’s deputy took the morning train to San Francisco. Officers of the prison met them at the depot and took Gabriel, in chains, to San Quentin, where he became prisoner #15173.

Built as California’s first state prison in 1852, San Quentin underwent expansion in 1892–’93, including the addition of a second-floor section called Stones Cell Block, designed for those awaiting the death penalty. This was new. Until 1891, executions were a local affair. Gabriel became the first occupant of the block later called Murderer’s Row and, later still, Death Row.

In San Diego many citizens became as angry as the mob that demanded a hanging. José Cota, the police officer, argued that the evidence was “circumstantial” at best, and that it wouldn’t take much “to prove that he did not commit the crime.”

Father Antonio Ubach, San Diego’s famous Catholic priest, was so convinced of Gabriel’s innocence he sent a petition to governor H. H. Markham begging to commute Gabriel’s sentence to life imprisonment.

The governor rejected Ubach’s plea and a second petition signed by over 50 San Diegans.

At 9:55 a.m. on March 3, 1893, warden William E. Hale entered Gabriel’s cell and read the death sentence in English.

Gabriel seemed to understand the words, said the priests who administered the last rites. “He stood up during the reading and betrayed no emotion,” wrote a reporter for the Sacramento Bee.

Gabriel walked to the new scaffold — San Quentin’s first — and up the wooden steps. His executioner put a black cap over his head and adjusted the noose.

“Nothing about him indicated that he dreaded the near approach of death,” wrote the Sacramento Bee.

José Gabriel fell “six feet.” His neck snapped. And he became the first prisoner executed by the state of California.

“Gabriel refused to respond to questions as to whether he had any regrets” (Sacramento Bee), “and he maintained that he did not commit the murders.”

The next day, the San Diego Union wrote: “The execution yesterday of Indian Joe was a fitting sequel to the Otay tragedy.” But then, possibly thinking of Sam Smith set free and the vigilantism the paper incited, the editorial added: “it is a discreditable state of things that only poor men and friendless pay the penalty of their crimes.”

Equally discreditable: the first person executed by the state of California might have been an innocent man.


  1. San Diego Union: “There is a grim determination, since the friends of Smith are taking refuge in the insanity plea, to make clean work of him before he slips through the clutches of the law.”
  2. San Diego Union: “The perpetrator of one of the most foul and cold-blooded murders known to the annals of crime, will be launched into the beyond by the rope route to answer for his deeds to a high court still.”
  3. McKanna, Clare V. Jr.: “At least one member of the jury opposed the death penalty; thirty years later it would have resulted in a mistrial.”


Crawford, Richard, “The White Man’s Justice: Native Americans and the Judicial System of San Diego County, 1870–1890,” Western Legal History 5 (Winter/Spring, 1992).

Gabriel, José, People v. Cast No. 7105, Superior Court No. 2, San Diego County, California State Archives, Sacramento.

Hensley, Herbert C., Memoirs (ms. at San Diego History Center).

McKanna, Clare V, Jr., The Trial of Indian Joe: Race and Justice in the Nineteenth-Century West (Nebraska, 2003); Race and Homicide in Nineteenth-Century California (Nevada, 2002); “Four Hundred Dollars’ Worth of Justice: The Trial, Conviction, and Execution of Indian Joe, 1892–1893,” Journal of San Diego History 33 (Fall 1987).

Pearce, Roy Harvey, “The Metaphysics of Indian Hating,” Ethnohistory 4 (Winter, 1957).

Coroner’s Inquest, 1892, San Diego County (San Diego History Center, research archives).

Articles in San Diego Union, San Diego Sun, Otay Press, Los Angeles Times, Sacramento Bee, and others.

More in this series: Part 1 | Part 2 | Part 3

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