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Mass Murder in Stuartburn — Pistenczak freed due to insufficient evidence to charge him
Jul 13, 2012
by Bruce Cherney (part 3)
The only evidence alleged to link Ivan Pistenczak to the murders of Wasyl Bojeczko and his four children in Stuartburn was a red spot on a coat that was taken from him on November 19, 1898, by interpreter Phillip Harvey. It was alleged that the spot was blood which Pistenczak had attempted to unsuccessfully scrape off. 
At the Winnipeg Police Court inquiry, Dr. W.A.B. Hutton said he examined the coat in December, concluding that it had “the appearance of being recently washed and scraped.” The doctor said he put the spot under a microscope as well as used chemicals to determine that it was indeed blood.
“I can’t swear positively what kind of blood it was, but it was consistent with human blood.”
Crown Attorney H.M. Howell asked the prisoner how the spot had come to be on his coat.
“That is not blood,” replied Pistenczak, “some red drops fell upon it from the roof.”
“Did you ever wash or scrape the coat after the murder?” asked Howell.
“No.”
Pistenczak’s wife backed up her husband’s account of events on the day the Bojeczko family was murdered, as did another witness who said she saw the accused working on his roof.
Once the witnesses had testified, Howell told the magistrate that he had no confidence in Wasyl Guszczak’s testimony, which had implicated his uncle in the October 14 murders, and there was not enough evidence to charge Pistenczak with the crime.
“When at last it dawned upon him that he was again a free man he was much affected and the big tears rolled down his cheeks.” reported the February 10, 1899, Telegram.
In March, first Guszczak and then Simeon Czuby, the remaining defendants in custody, were tried for the murders of Bojeczko and his four children, who ranged in age from three to 10 years old.
According to a summation of the crime in the May 29, 1899, Telegram: “Guszczak was cool and collected and told the most hideous lies concerning the murder (during the preliminary hearings and when on trial), contradicting himself again and again. At  the court house he gave a rugged description in a vivid style of how the murder was performed.”
In court, Guszczak admitted he took the revolver and fired “at the screaming children. The helpless father was gashed on the head and body and knocked senseless and bleeding on the floor. The children screamed and ran about trying to save their father, but were quickly shot down by Guszczak, who confessed that both he and Czuby afterwards took the axe and literally chopped them in pieces, dealing them blows in turn and scattering their blood and brains all over the bed and walls.”
After taking the money and waiting outside for a few minutes, Guszczak told Czuby “to go back and make sure that Bojeczko was dead, whereupon Czuby took the axe, went into the house again and dealt the body of the dead man several more blows on the head and back ...”
Guszczak then went to a stream and used water to carefully remove any bloodstains from his clothes and skin.
“To make sure all was right he went to the store of Mr. Yeo and bought a small looking-glass, so that he could examine himself more carefully. He also bought some groceries and then took them home to the house of his father-in-law, where he lived with his young wife, a girl of about 20 years of age.”
Shortly after this, he went to the train station in Dominion City, where he bought a ticket to Winnipeg. Once in the city, he hung around the Immigration Hall, later leaving for Dauphin where he obtained work.
“Probably his guilty conscience would not allow him to rest,” speculated the Telegram, “and acting on a strange impulse to come back to the scene of his dreadful deed he left Dauphin and returned home, where he was summoned shortly afterward to attend the trial of Czuby and gave the evidence which led to his arrest and conviction.”
The newspaper described Guszczak as being not over 23-years of age, having “an innocent appearance,” a slight stature, although well built, bright brown eyes, a small black mustache, thick curly black hair and dark skin. 
At his March 15, 1899, murder trial, Guszczak refuted his earlier confession, after it was read out in court. He said he only made the confession under intimidation by the hands of Pinkerton detective Philip Seel.
“He held me five days and five nights in Stuartburn and did not let me go to sleep.” While in Dominion City, he claimed Seel kept him awake for another day and night. During the interrogation, he said Seel kicked and jumped on him. Due to Seel’s interrogation methods, Guszczak said he relented and confessed.
It was only a verbal confession, according to Guszczak, so while in the Manitoba Provincial Jail (Eastern Judicial District Gaol) on Vaughan Street in Winnipeg, another Pinkerton detective named Allen (also spelled Allan in some newspapers), who spoke Ukrainian and was from Chicago, threatened to shoot him if he didn’t provide a written account of his role in the crime.
“Allan visited me about 10 times in jail  ... He scared me.”
Guszczak said in the presence of MPP Chief Elliot he signed a confession to the crime, despite being “unwilling.”
He admitted to numerous lies, but insisted Czuby told him to buy the revolver. Contradicting earlier testimony at the police court, Guszczak said he bought the revolver in Winnipeg, not Plum Coulee. 
In another instance, the prisoner told the lie that he had been in Gretna the Monday after the murders and earned $72. Another time, Guszczak said he stole $20 from his father-in-law which explained the $20 bill used to purchase goods at Yeo’s store in Stuartburn on the Sunday morning following the murders. It was not the alleged $20 bill he confessed to have received after the spoils of the grisly crime were divided up, as he earlier confessed. 
When he was asked why he continually lied, Guszczak said: “They (Seel and Allen) took me with lies, and I told them lies. When I told them lies I got cigars (apparently, 20 or 30 from Allan), but when I told them the truth they drew a revolver on me. I did not lie in the old country. I learned it in this country from Mr. Allen.”
When Manitoba Chief Justice Albert Clements Killam addressed the jury on Saturday, March 18, he asked them whether without Guszczak’s confession,  the Crown had provided proof of his participation in the crime. But, he added, the confession had been freely given and the defendant had been warned of its implication in subsequent trials. It was the jury’s duty to determine the reliability of Guszczak’s statements and whether or not they had been extracted under duress by Seel and Allen, according to Justice Killam.
“The position of being a stranger in a strange land should be borne in mind,” the justice added (Free Press, March 20, 1899).
After a deliberation of only half an hour, jury spokesman Thomas McMillan pronounced a verdict of guilty. Apparently, the jury didn’t believe Guszczak’s recanting of his confessions or that they had been obtained under duress. 
His sentencing was delayed until after the murder trial of Simeon Czuby, which began on March 20.
“The prisoner Czuby manifested throughout a much greater anxiety than Guszczak has shown during his trial,” according to the March 21 Free Press.
At the trial, Guszczak again implicated Czuby, and admitted to earlier lying to save his life.
Guszczak said he shot Bojeczko three times in the eye, who then fell on his face to the floor. Czuby then took the axe and finished the man off.
The eldest boy wanted to run away, so he shot at him three times. He then shot once at each of the younger children.
“The oldest boy was screaming dreadfully, although he was shot and Simeon finished him off with the axe (Guszczak’s testimony paraphrased in Free Press). Then he gave the axe to Guszczak, who killed the two  little babies. While he was killing the small ones Czuby got the money from under the pillow. He did not know how much money there was then, but he did after he stole it from Czuby. Czuby put the money under the roof above the door of (Czuby’s) house. He stole it from there, after watching from the bushes near by where he put it. He got $59.25.”
Guszczak said he had made three different confessions and told several different stories of the events of October 14, 1898, but after being found guilty of the murders, he was “telling the truth.”
Justice Killam asked Guszczak if he had made the written confession of his own free will.
“If you had been shut up for two months in jail,” Guszczak replied, “I guess you would have written three hundred pages.”
Thomas L. Metcalfe, who was the lawyer for Czuby, asked of Guszczak: “You are a liar?”
“Yes, sir,” was the reply.
“You are a thief?”
“Yes, sir.”
“You are a perjurer?”
“Yes, sir.”
“You are a murderer?”
“Yes,sir.
“You deliberately tried to convict Pistenczak, an innocent man, of murder?”
“Yes, sir.”
At the close of the cross-examination, Guszczak said he and Czuby were guilty of the crime.
Guszczak said he didn’t want to go to jail for 20 years or life, but wanted to be sent to the gallows “on account of his young wife.”
Guszczak then broke into sobs, which, according to the Free Press account of the trial, was the “only sign of weakness he had exhibited even in his recital of the awful details of his crime.”
“”I beg the criminal court and the high judge that I may be allowed to smoke during the short time that remains for me to live,” pleaded Guszczak. “I hope I may be sent to the gallows inside of two weeks at least.”
In his closing statement, Metcalfe said his client had confessed to the crime through fear and the only evidence against him was the testimony of Guszczak, who he characterized as a “fiend.”
Metcalfe quoted criminal justice experts who said uncorroborated evidence from an accomplice was extremely unreliable and dangerous. “He submitted that not one tittle of evidence had been adduced to substantiate the charge (against his client).”
Justice Killam appeared to agree that Guszczak’s testimony was unreliable.
“Such a man, he said, was not to be believed under any circumstances, though it was possible that one placed in his position would tell the truth, although he would not consider it safe to hang even a dog on the testimony of such a villain ... 
“He asked the jury to weigh the whole case completely before arriving at a conclusion.”
It seemed the whole case against Czuby rested upon his own confessions.
Within just under two hours, the jury announced it had reached a verdict.
At this point, Czuby (the official Justice Department records in the National Archives of Canada give his surname as Czubej, but also note that he was more commonly known as Czuby) was brought back into court. “He appeared dejected and glanced timidly around the court room,” the Free Press reported, “as though endeavouring to read in the faces of those present some sign of comforting news. He was very nervous and the twitching of the muscles of his face and his furtive glances here and there indicated mental anguish.”
When the verdict of “guilty” was given, Czuby was said to have been resigned to his fate, “and relapsed into greater composure than he had shown since his trial had begun, as though glad it was over.”
On March 22, before passing sentence, Justice Killam asked Guszczak if he had anything to say.
“I have to say that you shall not pronounce sentence,” claimed Guszczak.
When asked the same question, Czuby said: “It is your judgement to convict me or not, but I say now, if I am guilty, to punish me, if I am not guilty do not punish me. But I say I am not guilty.”
“You have been convicted,” said Justice Killam, “by fair and impartial juries of having murdered Wasyl Bojeczko and his four children (the official Justice Department records in the National Archives of Canada give the children’s names as Peter, Domka, Anna and Jurko — newspaper accounts have dramatic variations in the spelling of the children’s names). Your crime was an awful one. You have been given the same kind of trial as Canadians are given when charged with (a) crime. The government retained lawyers to defend you and to see that you had fair trials and every chance to meet the charge and show that you were not guilty.
“The law only provides only one punishment for your crime, that of death by hanging. The law also commands me to make a full report of your trials to the government of Canada in Ottawa, and your cases will be considered again by that government in fixing the time for your punishment. I am obliged to allow sufficient time for that government to consider your cases,” added Justice Killam.
The justice told the two men that they should not expect the Canadian government to change their death sentences, “and I can only advise you to prepare yourself for the awful charge.”
Justice Killam set the date of their execution as May 26.
Guszczak was said to have received his death sentence with “stolid indifference,” but the much older Czuby turned pale.
That afternoon in the provincial jail, Guszczak asked to see MPP Chief Elliot and Pinkerton detective Allen. When the arrived, Guszczak asked their forgiveness for any opposition he had shown them in court, as it was only an attempt by him to save his life.
“He expressed contrition and said if he and Czuby had foreseen the consequences of their crime, they would never have committed it” (Free Press, March 23, 1899).
He requested a priest and to be allowed to see his wife and young child.
Czuby refused to see a priest and asked to see his young son, “who seemed to be the only one that Czuby loved on earth.”
According to the Free Press, Allen later claimed that Czuby seemed to think he would escape the gallows.
While Czuby was denying the possibility of a date with the hangman, Guszczak took matters into his own hands and made an attempt to escape before the executioner could place a rope around his neck.
On Sunday, May 14, 1899, while Guszczak was awaiting execution, guard Bell notified Manitoba Provincial Jail Governor Patrick Lawler that the prisoner was missing from his cell. Using an iron slat from his bed, Guszczak had fashioned two chisels and a makeshift key. The jail guards found a hole chiselled out in Guszczak’s cell in the form of a cross. Lawler later said the hole made by the removal of a few bricks was so small that it was hard to imagine how the man had squirmed through it. Guards searched the jail yard but Guszczak was nowhere to be seen. The only other evidence found of his escape attempt was a rope made from towels hanging from a second-storey cell.
A kitchen orderly, who was also a prisoner, went to the second floor to deliver meals from a dumbwaiter. He opened the hoist door for the dumbwaiter and in the process accidently opened an adjacent chute and came face-to-face with the escapee. Lawler was alerted and Guszczak was returned to his cell.
It was found that Guszczak had sprung the lock for a partition leading to a next-door cell with his makeshift key and then walked from the unlocked neighbouring cell into the corridor and from there to the chute. It was also found that Guszczak’s attempted escape was facilitated by a watchman, who was supposed to be guarding the prisoner, but was actually fast asleep.
Guszczak later said he decided against making good his escape by using the improvised towel rope, because he believed he would be seen sliding down it by the cooks working in the first-floor kitchen. 
One day before his execution, Guszczak told his jailers that it had never been his intention to make good his escape, but only made the attempt to amuse himself and show that it could be done.
His ability to manipulate and shape metal into useful implements was shown when he later fashioned a key from a piece of metal from a pail and removed his shackles. He made no attempt to escape, but said he just wanted to have a laugh with his guards while awaiting his fate.
(Next week: part 4)