The Nicely Brothers.

Brothers Joe and Dave Nicely were the prime suspects in the robbery and murder of Herman Umberger in his home in Jennertown, Pennsylvania on February 27, 1889. They were arrested, identified by eye witnesses, convicted and condemned to death. But the Nicelys maintained their innocence and tried every means possible—legal and otherwise— to avoid punishment, including: two legal appeals, two pardon board appearances, a direct appeal to the governor, two jailbreaks, conspiracy to suborn witnesses, framing of other suspects, and feigning insanity. None of it worked.

Date:  February 27, 1889

Location:   Jennertown, Pennsylvania

Victim:  Herman Umberger

Cause of Death:  Gunshot

Accused:   Joseph and David Nicely

Synopsis:

The Umberger family had settled in for a quiet evening at home, on Wednesday night, February 27, 1889. In the sitting room were Herman Umberger, age 67; his 70-year-old wife, Nancy; Ella Stone, the hired girl; and Mrs. Umberger’s 10-year-old  granddaughter, Nannie (or Nana) Horner. The night was cold and rainy in Jennertown, Pennsylvania, and the family was surprised to hear a knock on the farmhouse door at 7:00.

Two men were at the door, one taller than the other. No one in the family recognized them, but the men knew where they were; the shorter man said, “Good evening, Mr. Umberger,” and asked if they could come in and get warm. Herman Umberger invited them in, offered them chairs by the stove, and had Ella put more wood in the fire.

The taller man had his face tied up with two handkerchiefs. The shorter man, who did all of the talking, said that he had broken his jaw falling out of a buggy. The shorter one, Mrs. Umberger would comment later, was wearing gray wig and a false gray beard. When they were comfortably seated, he explained the reason for their visit. He said that they were constables from Bedford and they had a warrant to search all the houses in the area for some jewelry that had been stolen from a peddler.

 

Mr. Umberger agreed to let them search, and Ella got a candle to light the way to the Umberger’s bedroom. He opened several bureau drawers and showed them the contents. In one drawer were two pocketbooks, Umberger explained that he kept a little cash on hand to pay the hired hands. The man said they were looking for jewels, not money, but to be safe, Umberger took the pocketbooks and put them in his vest. In fact, the pocketbooks contained Umberger’s life savings, at least $17,000. He was extremely distrustful of banks and carried the pocketbooks in his bootlegs every day and kept them in the bureau drawer at night.

When they were back in the kitchen, the man drew a revolver and said to Umberger, “Your money or your life.” Ella Stone ran screaming out of the house. Mrs. Umberger went outside and started ringing the “harvest bell,” the bell they used in the summer to summon the hired hands. On a February night it would serve as an alarm for the neighbors. Little Nannie stood in the corner and watched as the man fired five shots into her grandfather. The two men fled the house, taking the pocketbooks with them.

A large crowd gathered at the Umberger home that night. Herman Umberger’s brother Perry announced that the family would offer a $2,000 reward for the return of the money and $500 for the arrest and conviction of the murderer. While a coroner’s inquest was held and a post mortem examination of the body was performed, four constables followed footprints in the snow left by the killers, over the mountain and down the western slope of Laurel Hill toward the town of Ligonier. Around midnight they stopped at the house of Collins Hamilton and there they found two loaded revolvers and twenty dollars under his pillow. They also found the false whiskers the killer had worn. They arrested Hamilton and took him away in handcuffs.

 

The following day, however, evidence emerged against two other suspects, Joseph and David Nicely. The Nicely brothers were men of bad reputation, who had both served time in the Western Penitentiary and were believed to be the leaders of a gang of desperados operating in the area. They were arrested and taken to the Umbergers for identification. When they saw David Nicely dressed in overalls and an overcoat, Mrs. Umberger and Miss Stern felt  sure he was one of the men, but when they heard Joe Nicely speak, they knew, without question, he was the killer. The men were searched, and in David’s pocket was a red handkerchief with white spots that Ella Stern instantly recognized it as one that David had been wearing around his face.

Collins Hamilton was also taken to the Umbergers’ but none of the women recognized him. After a brief hearing he was released. Dave and Joe Nicely were arraigned and charged with murder.

 

On March 25, Anthony Nicely, father of Joe and Dave, was arrested as an accessory after the fact in the murder of Herman Umberger. He was found in possession of one of the pocketbooks that had been stolen, identified by a distinctive white spot at one end.

Trial:  May 27, 1889

While the Nicely brothers were awaiting trial, they allegedly formulated a conspiracy to try to throw suspicion on two other men. Detective Howard of a local detective agency claimed to have unearthed a plot to plant the gray wig in Collins Hamilton’s house and one of the pocketbooks, containing $11,000 in the house of a man named Joseph Hoffman. A detective named Charles Beegle was to arrest them the day before the trial and bring the evidence to court, thus proving the Nicelys not guilty. The story was printed in a Pittsburg newspaper and picked up by several others. The Nicelys and their attorneys vehemently denied the story, but H. F. Kooser of the prosecution believed that there was a conspiracy afoot. In any case, publication of the story eliminated the possibility of any conspiracy being carried out.

When the trial of the Nicely brothers began, hundreds of people came from all over Pennsylvania to watch; most had to stand outside the courtroom and wait for news. Inside the courtroom, more than a hundred witnesses would give testimony. The most important of these were the women at the Umberger’s house the night of February 27, and of these, the most persuasive was young Nannie Horner. She remembered detailed descriptions of the men’s clothing, such as brown patch on the right side of a grey overcoat, two buttons missing, and three frayed button holes. The coat itself, taken from the Nicelys’s home and kept in isolation until the trial, matched the description perfectly. On cross examination, the defense attorney tried to confuse her into giving conflicting testimony, but Nannie’s testimony remained constant. She also picked out both of the Nicelys, from a row of men, and identified them as the strangers she saw that night.

The Nicelys were well represented at their trial. Their attorneys, W. H. Koontz and Alexander Coffroth were both former congressmen. They tried to prove the footprints in the snow could not have been made by the boots the nicelys wore, and introduced more than a dozen witnesses who saw the Nicelys elsewhere that night.

After nine days of trial, the jury deliberated for only a short time before returning a verdict of guilty. However, not understanding the technicalities of the court, the jury did not specifically express the crime of which the defendants were guilty. The judge sent them back to rewrite their verdict, and the defense objected, saying the verdict had already been read. The jury came back with a verdict of guilty of murder in the first degree. The defense asked that the jury be polled, and each man declared the Nicelys guilty of murder in the first degree.

Verdict: Guilty of first degree murder

 

Aftermath:

On the grounds of the irregularity in the jury’s rendering of the verdict, Mr. Koontz filed a motion for a new trial. The motion was argued on August 13 and 14. On August 18 the judge ruled against the Nicelys, and refused a new trial. The same day, Joseph and David Nicely were sentenced to hang, “on such day and time as may be appointed by the Governor of the Commonwealth.” The following day the Nicelys’ attorneys filed an appeal to the Pennsylvania Supreme Court, to be heard the following October.

While Koontz was hard at work on gaining the Nicelys release by legal means, Joe and Dave were working on means of their own. At noon on September 16, the brothers made a bold dash for liberty and during the scuffle Joe Nicely shot and killed Deputy Sheriff Milton R. McMillen. The Nicelys ran out the front door, scaled the iron fence around the jail and fled into the woods.

The town mobilized immediately and a well-armed posse, estimated to be 500 strong, took to the woods to find the escaped prisoners. The nicely were soon recaptured and ropes were procured for lynching but, with some difficulty, cooler heads prevailed and the Nicelys were taken back to jail.

 

The appeal was argued before that Pennsylvania Supreme court, citing some technical errors with the testimony as well as the irregularities regarding the verdict. On November 11, the court ruled that there were no errors in the trial and upheld the verdict.

On April 15, 1890, Mr. Koonz represented the Nicelys, who were still professing innocence in the Umberger murder, before the Board of Pardons, attempting to have their sentences commuted. The board denied the request. On November 12, they appeared before the appeals board again, this time with some new evidence against another man, including a suit of clothes, a double barreled shotgun, and some revolvers. This request was denied as well.

The Nicely brothers were being held in a new jail in Somerset, Pennsylvania, reputed to be one of the strongest in the country. On November 29, the Nicelys and two other men proved this to be untrue when they broke out of the jail, sliding down a rope to the ground fifty feet below. A fifth prisoner attempted the escape but was fatally injured in the fall. The sheriff offered a $200 reward for the Nicely’s capture and a posse of 100 men scoured the countryside. Two days later Dave Nicely was found under some hay in a stable, an arm and a leg broken from the fall, and nearly dead from exposure. The following day, a local farmer, Jonathan Barclay, found Joe Nicely hiding in his barn. With the help of two neighbors he brought Joe back to jail.

On January 10, the Nicely brothers and their attorneys took their case directly to Pennsylvania Governor James A. Beaver, appealing to him to withhold the death warrant. They presented the Governor with a number of new pieces of evidence: they had affidavits stating that some of the witnesses who identified them have since stated that they were mistaken; and from from Joseph Nicely’s physician declaring that he suffered from heart disease and could not have gone so far from home in such a storm without becoming seriously ill; Mrs. Nicely swore that David took supper and spent the evening with her; a blacksmith swore he saw David late on the night of the murder; the governor and board of pardons received anonymous letters protesting that the Nicelys were innocent; and they had an affidavit from a man named Beech who confessed to the murder of Herman Umberger and a chain of facts to substantiate the confession. But the governor was not moved. On January 21, the day before the expiration of his term, Governor Beaver signed the death warrant. The Nicely brothers were scheduled to hang on April 2, 1891.

As they awaited execution, the Nicelys continued their quest for freedom. In early March, a dozen steel saws, nine inches in length, were found in the cells of Joe and Dave Nicely. The sheriff was greatly disturbed over the discovery, saying that no one was allowed to see or speak to the condemned men but their attorneys and relatives, the latter in the presence of an officer. In the weeks leading up to the execution they attempted to place the blame for the Umberger murder on someone else. Mrs. Nicely charged local constables and private detectives with conspiring to pin the murder on her boys. John Myers, “a reputable citizen of homestead” claimed that a desperado named Fitzsimmons, arrested for murdering Detective Gilkeson, was the real killer of Umberger.

Dr. H. L. Orth examined Joseph Nicely at the request of his father and his attorney, to determine Joseph’s sanity. Since his recapture Joseph has suffered fits of depression and when the board of pardons refused to rehear his case, “his present imbecility followed” he had not spoken a word since that date. Dr. Orth was skeptical, but after examining Joe he reported to the new governor that, “I undoubtedly believe him to be insane, and a proper person to be committed to the care of an insane hospital.” The governor issued no reply.

On April 1, the day before the execution, Elder Calvin W. Granger, of the Somerset Disciple Church visited David Nicely and convinced him that it was time to worry about his soul. At 11:00 that morning Elder Granger baptized David Nicely in a bathtub in the exercise corridor of the jail, in the presence of members of Granger’s church, lawmen, prisoners, reporters and a court stenographer. Then David Nicely had his first and last communion. After the ceremony he said, “It seems like a mockery, to have reveled in sin through a life, and to ask the Lord to take me; but O! I’ll lean on His mercy.”

The following morning Joe Nicely snapped out of his abnormal mental state (or as the Somerset Herald put it, “Joe Abandons the Insanity Dodge.”) As if waking from a dream, he asked “How did I get into this cell?” and “What day is it.” Elder Granger went to work on his soul as well, but with less success than he had with Dave. However, by 10:00, Joe came around, and amid hymn singing and deep prayer, Joe took communion with Rev. A. J. Beal of the Evangelical Association Church.

The gallows were built into the Somerset Jail, with traps in the floor, allowing the condemned men to fall into the room below. In the yard outside of the jail, thousands of people stood and waited for the execution. At 12:45 the prisoners were transferred from their cells to the west corridor and after another service of prayer and singing, the Nicelys said their last goodbyes. At 1:37 the traps were sprung; fourteen minutes later they were pronounced dead.

Publicly, the Nicely brothers and their attorneys maintained their innocence to the end, however following the execution, Elder Granger produced David Nicely’s written confession. In the confession, transcribed by the Elder and signed by David Niceley, he admitted that, contrary to all of his previous testimony, he was at the house of Herman Umberger on the night of January 27, 1889. He was there to rob him, not murder him. He fired his pistol once into the ceiling to frighten Umberger, but did not fire any shot that hit him. Though he did not say it explicitly, everyone assumed that the he meant the shots that killed Umberger were fired by his brother Joe. Many believed that Joe had also confessed, prior to receiving communion from Rev. Beal, but this was never confirmed.

Sources:

 

Books:

Werner, Edward H.. The Unberger Tragedy. Somerset: The Highland Farmer, 1890.

Newspapers:
"A Prison Mystery." Jackson Citizen Patriot 9 Mar 1891.
"A Startling Conspiracy." Evening Star 7 May 1889.
"A Winter Night's Terrible Crime.." New York Herald 4 Aug 1889.
"Accused of Murder." Patriot 5 Mar 1889.
"An Atrocious Murder." Daily Illinois State Journal 1 Mar 1889.
"Board Of Pardons." Patriot 12 Nov 1890.
"Dave Nicely Confessed ." Patriot 10 Apr 1891.
"General News Two Murderers Escape from Jail but Are Captured after a Lively Chase." Bismarck Tribune 17 Sep 1889
"Held for Trial." Cincinnati Commercial Tribune 7 Mar 1889.
"Murderer Nicely Insane." Patriot 31 Mar 1891.
"Murder Of Herman Umberger." Plain Dealer 2 Mar 1889.
"Nicely Recaptured." Jackson Citizen 9 Dec 1890
"Slid Down a Rope." Cleveland Leader 30 Nov 1890.
"The Murderers Found." Philadelphia Inquirer 7 Mar 1889.
"The Nicely Case." Patriot 10 Jan 1891.
"The Nicelys Hanged!." Somerset Herald 2 Apr 1891: 1.
"The Nicelys May be Guiltless." Philadelphia Inquirer 29 Mar 1891.
"What the Pardon Board Did." Patriot 3 May 1890.