. . . . Dr. John Cotes may have visited Polly on December 1st as part of a routine visit. By mid-December, however, Dr. Cotes was back at the jail attending to Polly on a daily basis. From the 14th to the 19th, the doctor had been called to the jail to treat her reoccurring illness. In comparing her court dates and Dr. Cote's medical log, we ruled out Polly's behavior in court as being drug induced. Polly was not being treated or given any kind of medication during the first two trials, or on any days in close proximity to those trials. Whatever made her behave so detached from the situation, was something within Polly herself.

Sheriff Alvin Pease was busy once again serving thirty-five subpoenas. Constable Lester Gould had traveled to Springwater, NY to serve a subpoena on someone in relation to the Frisch case, whose identity is unknown. . . . .

In the meantime Dr. Cotes was making periodic checkups on Polly, visiting her once or twice a month including pulling a bad tooth on the 13th of March. Polly's court date for the murder of her daughter Frances was set for March 17. She was well and fit to stand trial. . . . . A report of the prisoners in the jail was taken in March, just as every other time before one of Polly's trial. Aside from the usual burglary, assault, and larceny, Polly was not alone in her crime. A man by the name of David Curry was also being held on a charge of murder.

The trial began on Thursday March 17, 1859. This time Alvin Pease and Hiram W. Hascall would take turns in bringing Polly Frisch to court. The trial would be as long and as grueling as was the trial for the murder of Henry. Not only would they hold sessions in the morning and afternoon, but some evenings as well. It would last five days. Shortly after noon, the prisoner was brought in to take her seat beside her counsel. . . .

It was becoming continually harder to find men to serve on the jury. So many had already been eliminated during the first two trials. Once again the panel was exhausted, and alternate Talismen were subpoenaed by Sheriff Pease. Finally a jury of twelve was assembled together with the Honorable Judge Noah Davis Jr. presiding. . . .

It had taken until 3:00 p.m. to find a suitable jury. The following men were chosen.

• William~ W. Vallett (Foreman),
• Thomas Bump,
• Hiram P. Flanders,
• William Waterman,
• James Shepard,
• Silias Cathcart,
• Orlando Earll,
• Frederick Fidler,
• Charles Bonesteel,
• Charles W. Rumsey,
• John W. Woodruff, and
• Nathan E. Hollister.

. . . . To close the morning session, George Bowen call Professor George Hadley to the stand. . . . Professor Hadley elaborated on his analysis of the stomach of Frances Hoag. . . . . Hadley testified that there was a large quantity of arsenic in the stomach. . . .

EAGLE HOTEL - Batavia, N.Y. Formerly on the corner of Main Street and Court Street. Photo courtesy of the Genesee County History Department.

The jury was taken to the Eagle Tavern, a short distance away from the Court House, for the length of the deliberations. From the start the jury was having problems agreeing on the guilt or innocence of Polly Frisch, and debated the issue all through Sunday. The jury was sequestered until they returned at eight o'clock Monday morning of the 21st. The courtroom was packed and impatiently waiting for the decision of the jurors.

The Court Clerk asked the jury, "Have you reached a decision on the verdict?" William W. Vallett, the foreman, rose and addressed the court: "No we have not." Judge Davis then asked him, "If given more time, would you be able to reach a decision?" Mr. Vallett replied, "There is no prospect of agreement. We are equally divided and have stood so for 24 hours. There has been no change among us. We have stood six against six from the first."

Judge Noah Davis then thanked the jury for their serious attention to the matter and discharged them from any further duty. It was a hung jury. The case would have to be tried again.

---

Ch. 17 -- FRANCES TRIAL #2

. . . . [Polly] had been alone, day after day for almost two years; the only female prisoner in the jail. Imagine the anxiety that progressively built up before each court appearance. . . . .

Like a reoccurring nightmare, Polly Frisch was escorted into court on June 30, 1859 by Sheriff Alvin Pease. The trial would last seven days, ending on July 6, and would be the longest of all the trials to date. It wasn't just Genesee County anymore that wanted this woman to be convicted. This time James C. Smith, Esq. of Canandaigua, conducted the case for the prosecution, assisted by George Bowen. Smith was the assistant attomey general for the State of New York. He was to handle the case under the direction of Attorney General Lyman Tremain, and at the expense of the State. John H. Martindale, Esq., of Rochester would help Seth Wakeman and William Bryan conduct the case for the defense.

MAIN STREET, BATAVIA, N.Y. [Vicinity of Western Hotel, no longer standing.]Photo courtesy of the Genesee County History Department.

Judge Benjamin F. Greene would preside over the courtroom. Witnesses who were brought in from out of town were lodged at the Western Hotel; the jurymen were put up at the Eagle Hotel. Both were on Main Street in Batavia and fairly close to each other as well as to the Court House.

Once again the jury was out for almost twenty-four hours before reaching a decision. On Wednesday, July 6, 1859, at 11:00 a.m., the jurors filed back into court and entered the jury box. Polly was lead into the courtroom, like so many times before, by Sheriff Alvin Pease. . . . The room was hushed as the court clerk stood and asked the foreman, James L. Pierson, if they had agreed upon a verdict. "We have," the foreman answered. The prisoner was told to face the jury, and the jury the prisoner. Pierson was then asked, "How do you find: Guilty or not guilty?"

"Guilty," he replied.

. . . . Polly Frisch was found guilty of murder in the first degree for the death of her daughter Frances Hoag. She was to return to court on Saturday the 9th for sentencing. It was over, Polly thought. She was going to hang. She needed no direction from Sheriff Pease as she was taken back to the county jail.

WESTERN HOTEL Main Street, Batavia, N.Y. Building on the far right. (No longer standing.) Photo courtesy of the Genesee County History Department.

The jurors, with the case now over, began discussing the events of the last few days with reporters and spectators. Rumors began circulating throughout the courtroom. One of the jurors mentioned in conversation that Henry M. Coon, who also had sat on the jury, had looked at the Judge's Minute Book on the proceedings of the trial. That this had happened before the jury had reached their verdict. Others were commenting, "Wasn't that one of the jurymen we saw out together on Sunday?" Still another spectator was sure it was one of the jury he saw sitting in the lobby of the Eagle Hotel, with no supervision, reading a newspaper. . . . .

By the following afternoon, Thursday the 7th, Seth Wakeman and William Bryan had caught wind of what had happened. They quickly began preparing a Motion to the court to declare a mistrial. . . . If it weren't for the irresponsibility of the jury and the constables to their duties, Polly would have been on her way to the hangman's noose. . . .

THE GIBBET Similar to a gallows where the floor dropped out and the person fell, [the gibbet] was operated instead by using a counter balance. The condemned stood on the ground, and a weight was held by a bracket. When the weight was released the rope pulled the convicted criminal up. The Holland Land Office on Main Street in Batavia, the county museum, has an original Gibbet on display in a separate room from the rest of the museum's collection. Photo courtesy of the Genesee County History Department.

Here is what had happened . . . .Sunday the 3rd was to be a day of rest, and the jury needed it. It was becoming a difficult task, deciding the fate of Polly Frisch. The jurors were being lodged at the Eagle Hotel, and their rooms were in a separate area from the regular hotel guests. A sitting room had been provided near the hotel lobby for their use only. Under Sheriff Charles Sprague, Deputy Sheriff Lorenzo Olcott, and Robert Pease the constable, were in charge of the jury. Their job was to insure that the jury was under constant supervision. They were sequestered, and not to speak to anyone, read anything that may have been in print about the trial, or leave the confines of the Eagle Hotel. All the things the jury was not suppose to do, they did.

The public reading room was a large room directly opposite the hotel parlor. There in the room sat two of the jury members, not together with the rest of their group, sitting at a table reading newspapers. . . . While the jury members were sitting at the tables in the reading room, some hotel patrons came in and began talking freely about the trial. They were speaking loud enough to each other that the two jurors must have heard them. Hiram [Merill a local Batavia resident was at the Eagle Hotel to meet his friend] heard them conversing, and he wasn't even directly in the room. He saw no officer with or in charge of the jury members, as people continually passed by them while entering and leaving the rooms. This was an active hotel, not just to patrons but the general public.. . . .

The jury was technically in the deliberation phase. Even though it was a Sunday they were suppose to remain together, having no contact with any other persons except for the officers in charge of their supervision. Although Olcott had kept the ten men together on their outing, they should not have been out in the first place. The jury had split, and too many people had seen them do so. Some comments must have been made to the attending officers as they made sure for the remainder of the trial that the jury was kept together.

[During a break in deliberations late Tuesday night]Henry M. Coon, one of the jurors, began meandering around the [court]room, casually glancing at things that were lying about. The others were too busy to notice his movements. They were still intently debating the issues of the case. No one paid any attention to him as he made his way to the front of the courtroom. Lying on the desk . . . was the judge's Minute Book. Curiously, Henry opened it. There were quite a lot of notes taken on the trial so far, pages and pages in fact. He came to the notations made by Judge Greene on the testimony of Dr. Cotes. Henry began reading the text quietly out loud. He really wasn't trying to analyze it or even remember it; he was just mindlessly reading to pass the time.

Constable Robert Pease, hearing Henry mumble to himself, looked around to see where he had gottten. What he saw was not good. The officer quickly made his way to the front of the room, grabbed the book from Henry's hands, and shut it. The constable had no idea that the Minute Book had mistakenly been left in the courtroom. The juror only had the book a moment, but. it didn't matter. Coon, as well as the rest of the jury, knew well enough that it was not permitted to refer to any of the documentation on the judge's desk. . . .

[Middle third of old Batavia jail photo.] OLD GENESEE COUNTY JAIL: No longer standing. Was originally on the corner of Main Street and Rt. 98 in the City of Batavia; approximately where Oliver's Candies is now located. Photo courtesy of the Genesee County History Department.

On Tuesday, less then a week after a verdict of guilty had been reached, the Motion was filed by Wakeman & Bryan to declare a mistrial. . . . The case was argued before [Judge Greene] on Thursday the 14th. . . . under the circumstances, the judge had no choice but to grant Polly Frisch a new trial. The court date was to be set for sometime in August during a special term of the Oyer & Terminer. . . .

. . . . The fifth trial of the People vs. Polly Frisch began on the 25th of August [1859] as they commenced interviewing prospective jurors. As usual they went through the first eighteen men who were originally called. Fifty more talismen were summoned on the 29th of August before a panel of twelve men was finally chosen. . . . Polly was visited on the 27th by Dr. Cotes, and administered medicine of some kind. This was the first time she had been medicated during court proceedings. It was necessary for Cotes to tend to Polly on the last two days of July, as well as five days in the month of August. It is only speculation that the drug prescribed was to keep her calm. It would not come out until during this trial that Dr. Cotes had been treating Polly while she was in jail.

Once again the deputy sheriffs were being driven by the carriage driver to pick up witnesses. Lorenzo Olcott was on a longer journey than the rest of the constables. He again traveled round trip, for five days, to retrieve Albert and Lyman Hoag from Michigan. . . .

The prosecution called its usual witnesses to the stand who testified to the usual things. They were now ready for their surprise witnesses to take the stand. The prosecution knew that people were suspecting that Polly Frisch was crazy. They suspected that her lawyers might try to use an insanity plea to get a verdict of not guilty. The plan was to convince the jury that she had been totally sane when she killed her family. The only way they could do that was to find Dr. Townsend, the Hoag's family physician. The doctor, having finally been located, was brought from Michigan to testify. He was now called to the witness stand.

It is too bad they did not know the doctor's whereabouts when the trial for the murder of Henry was in progress. He had tended to Henry during his illness. His testimony would have been very enlightening. For Frances, no doctor was called until after she was dead. It was never said in the first trial for the murder of Frances who that doctor had been. We can assume it was Dr. Townsend. Otherwise, at some point, one of the other doctors would have testified to being there after Frances' death. Dr. Townsend was the only doctor from Alabama that hadn't testified at the other trials. The prosecution did not know until they found him that he had also been treating Polly for an illness.

Polly having an adverse medical condition was not brought up by either the defense or the prosecution at any of the previous four trials. This trial however, Dr. Townsend gave evidence on behalf of the People to treating Polly Frisch for a repetitive illness during the times of the murders.

The later newspaper printed his testimony as saying, "that he inclined to the opinion that she was then free from mental disturbance." To the dismay of the prosecution he added, according to the paper, "He declared this to be a mere 'preponderance of impression', and that he could not give an opinion that was satisfactory to himself." In other words, he could only give his opinion, that Pony Frisch appeared to be sane at the time of the murders.

The prosecution rested their case on the 5th of September. It was time for Polly's lawyers to try and defend her. It was hopeless and they knew it. Before they even began their defense, they changed their plea. No longer would it be "not guilty" but "not guilty by reason of insanity." It was their last chance, their only chance to save Polly Frisch from hanging. . . .

Courtroom (jury box side) in the Old Court House where the Polly Frisch murder trials took place. Photo courtesy of Genesee County History Department.

On the evening of September 5, Dr. George Cook, superintendent of the Insane Asylum in Canandaigua, New York, was brought in to assess Pollys mental stability. He examined her closely, and spoke to Dr. Cotes who had treated Polly for the last two years. He reviewed what Dr. Townsend had said about Polly's former illnesses.

The next day Dr. Cook testified on behalf of the defense saying, "she was then, and at the time of the alleged homicide had been suffering under disease epiliptiform in character, and that she was not a person of sound mind."

He also testified that, "The fits and convulsions, which are violent and alarming, to someone not conversant with the treatment of insane persons, would be perceived as merely hysterics."

The insanity defense unfortunately was set up too late. The jury entered deliberations shortly after noon on Wednesday the 7th, and came back the following day at 4:00 p.m. with a verdict of "guilty". Nothing would happen this time to throw the trial. It was finally over. Polly was found guilty of murder in the first degree for the death of Frances Hoag. Upon the rendition of the verdict Judge Greene, immediately sentenced the prisoner to be executed. On November 2, 1859; between 10:00 a.m. and 1:00 p.m., Polly Frisch would hang by the neck until dead. . . .

The public discovered the next day that the jury had attached an unusual request to their verdict of guilty. They had pleaded with the court to show Polly Frisch mercy in her punishment. The law was the law, and Judge Greene could not change this one. If a person was found guilty of murder, the sentence was death. This was out of his hands. Any clemency on the matter would have to come from the governor of New York State. Before leaving the courtroom, the jurymen unanimously signed a recommendation, directed to Governor Edward D. Morgan, to commute her sentence to imprisonment for life.

This was a very magnanimous gesture on the part of the jury, especially since they were all in agreement of her guilt. It was also the out that they needed. If her sentence was commuted, and she wasn't hung, it would alleviate the burden on their conscience and soul. The majority of the citizens of the county seemed to be all for this method of solving the problem it posed in conflicting with their religious beliefs.

Courtroom in the Old Court House where the Polly Frisch murder trials took place. Shown is the left side as one would face the judges' bench. Photo courtesy of Genesee County History Department.

. . . . Governor Morgan had finally given his answer. It would be necessary to determine if Polly Frisch was insane or not. Then he would decide what her fate would be. The governor ordered Dr. Edward Hall, physician to the State Lunatic Asylum at Auburn, New York (and affiliated with the asylum at Utica, NY), to examine the prisoner and determine her sanity. First, was she insane at the time she committed the crimes? Was she insane now? If insane, was she so before, or only after caused by the stress of the multiple trials?

Dr. Hall went to Batavia as requested and spent two days, the 20th and 21st of October, with Polly Frisch to determine if she was truly insane. Her parents, Eliza and Schubel Franklin were also there at the jail on the 20th to meet with Dr. Hall. Constable Lorenzo Olcott was sent to Alabama to pick them up by order of the governor.

Dr. Cotes was still treating her for her condition. Except for the 25th, Dr. John Cotes treated and medicated Polly from the 14th to the 30th of October. On his final bill to the county dated November 14, 1859, Dr. Cotes added a remark to the end, of which he had notarized, to protect his professional reputation:

Genesee County Ss.
And the said deponent further says that no visit was made to the patient in jail but what he deemed very necessary and then not without special request of the sheriff and that he seldom visited patient until and unless sent for by the sheriff and presently waited until a second messenger was sent for him.
Subscribed and sworn
J.R. Cotes
To the 21. day of
Nov. 1859 before
Me A.P. Hascall
Chairman of Committee
On County Claims

Dr. Edward Hall had conferred with Dr. Townsend and Dr. Cotes as to Polly's sanity. He interviewed Polly, reviewed her medical files, spoke with her attending physicians, and reviewed the testimony presented in the five trials. Sheriff Alvin Pease, who had long been in close contact with Polly the last two years, was interviewed as to her habits and condition. Hall questioned both the prosecuting attorneys, as well as those for the defense.

Dr. Hall came to the conclusion that, yes, Polly Frisch was insane. She was insane at the time of the murders, she was insane now, and she had been for several years. Epilepsy back then was thought to be a mental illness, not one of a physical nature. The fact epilepsy would cause someone to kill is absurd. It was a crazy diagnosis for a condition of insanity. But, they had no logical explanation for diseases of the mind.

On October 28, 1859 Dr. Edward Hall wrote Governor Morgan of his findings. He submitted a lengthy medical report, as well as a letter on stating his conclusions based on his findings. The letter was printed in the Albany Evening Journal, and reprinted in the Republican Advocate of Batavia. The excerpt below is part of the letter that was written.

State Lunatic Asylum
Auburn, Oct. 28,1859.

To His Excellency Governor Morgan:
Sir --
In accordance with the request of your Excellency, I have visited Polly Frisch, now confined for murder in the jail at Batavia in Genesee County, to ascertain whether she is of sound mind, and what probably was her mental condition during the cominission of her crimes, and hereby respectfully report, as follows:--

From the information thus obtained (which only a personal examination of several weeks could have made clearer), I am convinced that the prisoner, Polly Frisch, is now, and has for several years been subject to that form of insanity which is frequently the result of epileptic disease. This is now plainly apparent, and I think if attention had been called to this form of mental disease as a solution of her unnatural actions, she would have been as much an object of sympathy and pity as of horror and aversion. --

I have the honor to be, respectfully yours,
Edward Hall
Physician of the State Lunatic Asylum,
Auburn, N.Y.

The Governor anticipated what the outcome of Polly's evaluation would be, and began the paperwork. Several newspapers, local and otherwise, covered the story. On the grounds of insanity Governor Edward D. Morgan spared Polly from hanging. The following is taken from the actual document of Polly's sentencing paper:

Modified detail of Batavia mid-1850s map. Color added to legend letters: D = Sheriff Alvin Pease residence. West side of Evans St. E = old county courthouse, Main & Court Sts. F = vicinity of offices of chief lawyers in case. Q = train depot. In above map, north is to the right.

STATE OF NEW YORK
Executive Department
Albany, Oct. 27, 1859

The Secretary of State is requested to make out a Commutation for Polly Frisch, who was convicted of murder in the County of Genesee in the month of September 1859 and was sentenced to be hung on the second day of November, 1859. Her sentence is hereby commuted to imprisonment in the State Prison at Sing Sing for the Term of her natural life.
E.D. Morgan

On October 31, 1859, accompanied by Sheriff Alvin Pease, Polly Frisch boarded the train at the Batavia Station. Polly left Genesee County, New York that day; never to return.