Brown v. Mississippi Transcript of Record

    N.A.A.C.P.













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TRANSCRIPT OF RECORD

Supreme Court o f the United States
OCTOBER TERM, 1935.

No. 301

ED BROWN, HENRY SHIELDS, AND YANK ELLING­
TON, PETITIONERS,

vs.

STATE OF MISSISSIPPI

ON W R IT  OF QERTIORARI TO T H E  SU P R E M E  COURT OF T H E  STATE

OF M IS SIS S IP P I

PETITION FOR CERTIORARI FILED JULY 29, 1935. 

CERTIORARI GRANTED OCTOBER 14, 1935.





SUPREME COURT OF THE UNITED STATES

ED BROWN, HENRY SHIELDS, AND YANK ELLING-

ON P E T IT IO N  FOR A W R IT  OF CER TIO R A R I TO T H E  SU P R E M E  COURT

OCTOBER TERM, 1935

No.

TON, PETITIONERS, 
vs.

STATE OP MISSISSIPPI.

OF T H E  STATE  OF M IS SIS S IP P I.

INDEX.
Original Print

Record from Circuit Court of Kemper County.......................  1 1
Caption.......................................... (omitted in printing).. 1 1
Indictment..........................................   2 1
Capias and sheriff’s return...........................................     3 1
Arraignment and plea of "not guilty” .............................  4 2
Verdict......................................................................................  5 2
Sentence....................................................................................  6 3
Transcript of evidence.......................................................... 9 5

Appearances of counsel................................................  9 5
Testimony of Burt Stewart..........................................  9 5

William Adams ....................................  10 6
Dave Owen ............................................  14 9
Dr. Wall ................................................  18 12
Dr. I. W. Cooper..................................... 22 16
Henry Lavender ................................... 24 18
J. H. Adcock..........................................  27 20
Bryce Stevens ......................................  43 34
Eugene Stevens ....................................  47 38
Ed Brown ..............................................  51 41
Henry Shields ......................................  68 56
Yank Ellington .....................................  80 66

Judd & D btwkii.eb ( I nc . ) ,  P rinters, W ash in gto n , D . C., J u ly  17, 1935. 

—6653-C



n INDEX
Original

Colloquy between court and counsel.............................  95
Testimony of Ellis Lee G ile s ........................................ 97

Kate Ellington .........................................  99
Irena Brown ............................................ 101
Mary Shields ............................................ 104
T. D. Harbour............................................ 110
L. G. Temple.............................................. 116
T. H. Nicholson..................................... 118
E. L. Gilbert.............................................. 123
Clift Dial .................................................  128
Dr. Wall (recalled)..................................  137

Reporter’s cerificate............(omitted in printing).. 140
Instructions for the State, given............................................ 141
Instructions for the defendants, given................................  147
Instructions for the defendants, refused............................  157
Petition for appeal................................................................... 159
Pauper’s oath ............................................................................  161
Clerk’s certificate......................... (omitted in printing).. 162

Proceedings in Supreme Court of Mississippi............................  163
Assignments of e rror ....................................................................... 163
Argument and submission...............................................................  165
Opinion, Cook, J ................................................................................  166
Dissenting opinion, Anderson, J ...................................................  175
Judgment............................................................................................ 179
Motion for extension of time to file suggestion of error.. . .  180
Order granting extension...............................................................  181
Suggestion of error..........................................................................  182
Motion in arrest of judgment and for new trial..................... 186
Affidavit of Jno. A. Clark...............................................................  197

Yank Ellington .........................................................  198
Ed Brown ................................................................... 204
Henry Shields ........................................................... 209

Motion for writ of certiorari.........................................................  214
Order granting motion....................................................................  216
Writ of certiorari............................................................................  217
Order extending term, Circuit Court...........................................  218
Order recalling grand jury, Circuit Court..................................  219
Final report of grand jury and request to be discharged,

Circuit Court..................................................................................  220
Opinion on suggestion of error, Smith, C. J ................... « . . .  221
Dissenting opinion, Griffith, J ...................  230
Order overruling suggestion of error........................    238
Petition for stay of execution....................................................  239
Order staying mandate................................................................... 241
Praecipe for transcript of record...................................................  242
Clerk’s certificate.................................(omitted in printing) .. 244

Print
78
80
82
84
87
91
97
99

103
107
115

118
120
124
125
126

126
126
127
127
135
137
138 
138 
138 
141 
146 
149 
153 
157 
161 
162
163
164
164

165
166 
173 
179
179
180 
181



1

[fol. 1] [Caption omitted]

[fol. 2]
IN CIRCUIT COURT OF KEMPER COUNTY

I n d ictm e n t—Filed April 4, 1934

T h e  S tate of M ississippi,
Kemper County:

In the Circuit Court, Kemper County at the March Term, 
thereof in the year of our Lord One Thousand Nine Hun­
dred and Thirty Four.

The Grand Jury for the State of Mississippi taken from 
the body of good and lawful men of Kemper County, in the 
State of Mississippi, elected, impanweled, sworn, and 
charged to, inquire in and for said County, in the State 
aforesaid, in the name and by the authority of the State of 
Mississippi, upon their oaths present: That Ed Brown, 
Henry Shields, and Yank Ellington in said County, on or 
before the 4th day of April A. D. 1934 did then and there 
willfully, unlawfully, feloniously and of their malace afore­
thought, kill and murder one Raymond Stuart, a human 
being, contrary to the form of the statute in such cases 
made and provided, against the peace and dignity of the 
State of Mississippi.

John C. Stennis, District Attorney.

[ fo l . 3 ] I n  C ibcu it  C ourt of K em per  C o u n ty

Capias and  S h e r if f ’s R etu rn

The State of Mississippi to the Sheriff of Kemper County— 
Greeting:
We command you to take the bodies of ED Brown, Henry 

Shields, and Yank Ellington if to be found in your County, 
and them safely keep, so that you have their bodies before 
the Honorable, the Circuit Court of Kemper County, to be 
holded in and for said County, at the Court House thereof, 
in the Town of Dekalb, Instanter then and there to answer

1—6653



2

unto the State of Mississippi, of a charge of Murder pre­
ferred by a bill of Indictment found and returned into said 
Court, at the March Term A. D. 1934, thereof, by the Grand 
Jury, duly empanneled and sworn at said Term.

Herein, fail not, and have then and there this writ, with 
the manner you have executed the same.

Given under my hand and Seal of said Court affixed, and 
issued the 4th day of April, 1934.

H. C. Anderson, Clerk.

I have this day executed the within writ personally on 
each of the within named Defendants by arresting them and 
bringing them into Court.

This the 4th day of April, 1934.
J. H. Adcock, Sheriff.

[ fo l . 4 ] l x  C ir cu it  C ourt op K em per  C o u nty

S tate op M ississippi 

vs.
E d B r o w n , H enry  S hields and  Y a n k  E llin gton  

A rraig n m en t

Comes the District Attorney who prosecutes for the State 
and the Defendants Ed Brown, Henry Shields and Yank 
Ellington in their own proper persons and represented by 
legal counsel, having been called to the bar and required to 
plead to an Indictment charging them with Murder, to 
which they all entered a plea of “ Not Guilty” .

It is therefore ordered by the Court the the Defendants 
Ed Brown, Henry Shields and Yank Ellington, be placed in 
the hands of the Sheriff to await further proceedings.

[fol. 5] I n  C ircu it  C ourt of K em per  C o u n ty  .

V erdict op t h e  J ury

“ We, the Jury, find the defendant Ed Brown guilty as 
charged. ”  Filed in my office this the 6th day of April, 1934.

H. C. Anderson, Clerk.



3

“ We, the Jury, find the Defendant Henry Shields guilty 
as charged.”

Filed in my office this the 6th day of April, 1934.
H. C. Anderson, Clerk.

“ We, the Jury, find the Defendant Yank Ellington guilty 
as charged.”

Filed in my office this the 6th day of April, 1934.
H. C. Anderson, Clerk.

[fol. 6] In Cir cu it  C ourt op K em per  C o u n ty

S en ten ce

Comes the District Attorney who Prosecutes for the State 
and the defendants Ed Brown, Henry Shields and Yank El­
lington in their own proper persons and represented by 
legal counsel, being called to the bar and required to plead 
to an Indictment charging them with Murder, to which In­
dictment they each entered pleas of not G-uilty, on a former 
day of this Term of Court. Case having been begun on a 
preceeding day and not concluded. Comes the Same Jury 
of Good and lawful men of Kemper County Mississippi, 
Composed of Robert Hopper, W. G. McKinney, Auston 
Hicks, C. C. Hudnall, Leslie Poole, J. M. Legette, Emmett 
Thompson, C. A. Sinclair, B. E. Key, Marvin Burton, A. C. 
Hopper and E. M. Swearengin. Who after hearing all the 
evidence, argument of counsel, received the instructions of 
the Court, retired to consider their verdict, and presently 
returned into open Court the following Verdict to wit; 
“ We the Jury find the Defendant Ed Brown Guilty as 
Charged” . “ We the Jury find the Defendant Henry Shields 
Guilty as Charged” . “ We the Jury find the defendant 
Yank Ellington Guilty as Charged” . And the Court being 
polled as to each Jurors’ Verdict, each Juror an-ounced 
that was his Verdict. Now comes the District Attorney who 
Prosecutes for the State, and the defendants Eel Brown, 
Henry Shields and Yank Ellington, Convicted on this day 
of this Term of Court of Murder. The District Attorney 
moves the Court to award and pronounce Sentence of the 
law on the said Defendants.

Ed Brown being asked by the Court if he had any thing 
to say as to why the sentence of the law should not be pro-



4

nounced upon him “ Says Nothing.”  It is therefore or­
dered and adjudged by the Court that the said Ed Brown 
for said offence aforesaid, be and is hereby Sentenced to be 
[fol. 7] taken by the Sheriff of said County and in the 
Prison of the County at Dekalb, Miss., where he shall be 
confined, or in the enclosed yard of such Prison or in such 
Building or enclosed yard that the Board of Supervisors 
of said County may designate and there be hanged by the 
neck until he is Dead, Dead, Dead. Which execution shall 
be on Friday the 11th day of May A. D. 1934, said named 
day.

Henry Shields being asked by the Court if he had any­
thing to say as to why the sentence of the law should not be 
pronounced on him. “ Says Nothing.”  It is therefore or­
dered and Adjudged by the Court that the said Henry 
Shields for said offense aforesaid be and is hereby sen­
tenced to be taken by the Sheriff of said County in the 
Prison of — County at DeKalb, Miss. Where he shall be 
confined, or in the enclosed yard of such Prison or in such 
Building or enclosed yard that the Board of Supervisors of 
said County may designate and there be hanged by the neck 
until he is Dead, Dead, Dead. Which execution shall be on 
Friday the 11th day of May A. D. 1934, said named day.

Yank Ellington being saked by the Court if he had any­
thing to say as to why the Sentence of the Law should not 
be pronounced on him, “ Says Nothing” . It is therefore 
ordered and adjudged by the Court that the said Yank 
Ellington for said offense aforesaid, be and is hereby Sen­
tenced to be taken by the Sheriff of said County, in the 
Prison of the County at DeKalb, Miss. Where he shall be 
confined, or in the enclosed yard of such Prison, or in such 
building or enclosed yard, that the Board of Supervisors 
of Said County may designate, and there be hanged by the 
neck until he is Dead, Dead, Dead. Which execution shall 
be on Friday the 11 day of May A. D. 1934. Said named 
day.

It is further ordered by the Court that the said defend­
e d .  8] ants Ed Brown Henry Shields and Yank Ellington, 
be remanded to Jail and there safely kept until execution 
day.



5

[ fo l . 9 ] I n  C ircu it  C ourt op K em peb  C o u n ty  

T ran script  op E vidence

This cause came on for hearing on a day of this Court 
held in and for the County of Kemper, State of Mississippi, 
on the 25th day of March, 1934 at 9 :00 o ’clock, A. M., in the 
Court House in the Town of DeKalb, Mississippi, before 
Judge J. I. Sturdivant and a Jury.

Appearances:
Hon. John C. Stennis, District Attorney, DeKalb, Miss.; 

Hon. Sam Graham, Meridian, Mississippi, for the State.
Hon. John A. Clark, DeKalb, Mississippi; Hon. Joe H. 

Daws, DeKalb, Mississippi; Hon. D. P. Davis, DeKalb, Mis­
sissippi; and Hon. L. P. Spinks, DeKalb, Mississippi, for 
the Defendants.

Mr. Burt Stewart, a witness for the State, after being 
duly sworn, testified as follows:

Direct Examination.

By Mr. Stennis :
Q. This is Mr. Burt Stewart!
A. Yes, sir.
Q. You live in Meridian, Mississippi, do you not!
A. Yes, sir.
Q. Mr. Raymond Stewart is your deceased brother!

[fol. 10] A. Yes, sir.
Q. What profession are you engaged in!
A. Architect.
Q. Are you familiar with the floor plan of the house in 

which it is said that your brother Raymond Stewart was 
killed 1

A. Yes, sir.
Q. Have you made a plat or drawing representing the 

plan of that house!
A. Yes, sir, this is it.
Q. Is that the correct relative positions of the rooms, 

porches, steps and so forth!
A. Yes, sir.
Q. Did you make that drawing recently!
A. Last night.



6

Q. I believe that yon didn’t draw the rooms to dimen­
sions ?

A. No, I didn’t have the size of the rooms.
Mr. Stennis: We would like to introduce this as exhibit 

to the testimony of Mr. Stewart. (Marked Exhibit “ A ” .) 
The Court: Is there any objection to this?
Mr. Spinks: I don’t see any objection to it.
(Clerk here copy.)
(Witness dismissed.)

Mr. W illiam A dams, a witness for the State, after being 
duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:
Q. Your name is William Adams?
A. Yes, sir.
Q. Where do you live?
A. Six miles east of Scooba in the Giles community.
Q. How far is that from the place where Mr. Raymond 

[fol. 11] Stewart formerly lived?
A. I think it is about 100 yards.
Q. Did you know Mr. Stewart during his life time?
A. Yes, sir.
Q. Now, Mr. Adams, on Friday of last week, state whether 

or not you went to Mr. Stewart’s house, and if so, about 
what time and what you found there.

A. It was right after dinner; I had eaten, and it was 
somewhere between 12:00 and 1 :00, or 12:00 and 1 :30. On 
going there I had a negro with me, Ellis Giles. He came to 
the store and said he heard a noise over there and wanted 
me to investigate it. On going to the seed room, it sounded 
like------

Mr. Clark: We object to that.
The Court: Sustained.
Q. I asked you if you went to the house and what you 

found there.
A. On going to the door, I opened the door and noticed 

a form lying down on the flood, some human being. I



7

couldn’t tell right at that time what it was; of course I 
imagined it was Mr. Raymond. It was dark in the room, 
and I went hack into his room to get a light. I found a 
lantern on the mantel and lit it and brought it back and 
put it close to him. I first called him three or four times 
to see it I could rouse him, but he didn’t reply. He was 
breathing hard and seemed to be unconscious. I found a 
stick there and put it in the door so he could get air and 
sent the boy to my father’s house. In the meantiow I met 
him about half way and told him to go for a Doctor. After 
I had sent for the Doctor------

Q. Wait a minute. Have you seen this plat here?
A. Yes, sir.
Q. Now, Mr. Adams, using this plat here as a guide, 

stand up here and indicate to the jury just where it was 
that you say you found Mr. Stewart’s body.

A. Right in this room right here by this door, on his 
[fol. 12] back with his feet against the door.

Q. You said something about pushing the door open; 
which one was it ?

A. Right there.
Q. That was where you found the body?
A. Yes, sir.
Q. Tell us what was in that room.
A. There was cotton seed and a molasses barrel right here 

where the door opened.
Q. What was this space out there?
A. It was a little hallway.
Q. What else did you see in that room?
A. There was a tood chest here, and it was open and a 

pair of trays were laying on top of the chest. All along 
the wall next to the door there was blood and blood was 
sprinkled in the tool chest. By this door going out to the 
back door there was bits of glass like a lamp chimney.

Q. What was it you said about a stick?
A. One was laying here somewhere. It was about five 

feet long and about an inch and a half thick.
Q. Was that a round stick?
A. Yes, sir; it was kind of rough.
Q. Did you see any signs on that stick?
A. I didn’t notice anything on it.
Q. What door are you talking about finding it near?
A. The closet door that opened here.



8

Q. Which room was it that you went back to?
A. This room.
Q. What did you find in there?
A. His shoes were lying between the bed and the table.
Q. What was the condition of the bed in there?
A. It was just as if someone had been sleeping in it; it 

hadn’t been made up.
Q. What else did you notice in there?

[fol. 13] A. I noticed nothing except the shoes on the 
floor.

Q. Did you notice any glasses in there?
A. They were on the table.
Q. Going back to the place where you found the body, 

you say that he was breathing then?
A. Yes, sir.
Q. How long did you stay there with him?
A. Until the Doctor came, I think in about 30 minutes.
Q. What had happened between the time you got there 

and the time the Doctor came?
A. He was breathing and knocking against the door, and 

before the Doctor came he ceased making any noise and 
ceased breathing.

Q. State whether or not he died.
A. He did. I didn’t go in the room, but he evidently died.
Q. This knocking that you heard, what was that?
A. He was laying on his back with his feet against the 

door, and that kept the door closed. He was knocking on the 
door with his feet. He would slide down and knock against 
the door again.

Q. What about the cotton see- pile in there ?
A. It was high at the back of the room and slanted down 

toward the door.
Q. How was he clad?
A. In his shirt and underwear; he had a blue shirt.
Q. You didn’t make any examination of the body further 

than that?
A. No, sir.
Q. In what County and State was this house and place 

where you found the body?
A. Kemper County, State of Mississippi.
Q. You said something about a tool chest there; did you 

notice anything on the tool chest?
A. There was blood in the tool chest, and a pair of 

drawers was lying on it.



9

Q. Did you notice anything about the lock to the tool 
chest!
ffol. 14] A. I can’t recall; I didn’t notice the lock.

Q. Did you notice anything about any particular tool 
there ?

A. A chisel was laying on the tool chead to the left hand 
side of it as you looked at the front of it.

Q. What kind of chisel was that!
A. It was a wood chisel, and it had a little blood smeared 

over it on the handle and the blade.
Q. It had a wooden handle?
A. Yes, sir.
Q. Did you stay there until Dr. Wall arrived?
A. Yes, sir. By that time a good many people were 

there.
Q. From the observation that you did make, what was 

the condition of Mr. Stewart’s body and clothes?
A. From what I saw of him from the light of the lantern, 

blood almost completely covered his face, with cotton seed 
stuck on his face. His face looked like it was swollen. 
That was about all I noticed except there was blood on 
the seed and where he was laying. That is about all I 
noticed. I just glanced in there after I got a light. After 
I opened a window I just glanced in there.

Cross-examination.
By Mr. Clark:

Q. What was the name of the negro that gave the 
alarm ?

A. Ellis Giles.
Q. He lived on your place or Mr. Stewart’s place?
A. Mr. Stewart’s.
Q. Is Ellis Giles here today, or do you know?
A. I don’t know.
(Witness dismissed.)

Mr. Dave Owen, a witness for the State, after being duly 
sworn, testified as follows:
[fol. 15] Direct examination.

By Mr. Stennis:
Q. This is Mr. Dave Owen?
A. Yes, sir.



10

Q. Where do you live, Mr. Owen, with reference to where 
Mr. Raymond Stewart lived? Did you live near there?

A. Yes, sir.
Q. On last Friday, did you go to Mr. Stewarts house 

abdut mid-day or a little past?
A. Yes, sir.
Q. Did you see young William Adams there?
A. Yes, sir.
Q. Tell us what you found there?
A. When I went there, William was there, and a good 

many negroes was there. Just after I got there, me and my 
father and brother, Mr. McDade and his boy come.

Q. Did you go in the house?
A. Yes, sir.
Q. Tell us what you found there.
A. I went in the house, and there was a tool box sitting- 

right by the door to the seed room. The door was opened 
kind of like this, and the tool box was open. There was 
blood all in it. William said that the standard was laying- 
in the hall and------

Mr. Clark: We object to that.
The Court: Sustained.
Q. Tell what you saw there.
A. The tool box was open, and there was blood all in it 

and all against the wall.
Q. The standard that you spoke of seeing, what size 

was it?
A. I reckon it was an inch and a half through in diameter, 

and 4 or 5 feet long.
Q. Were there any tools in that tool box?
A. Yes, sir.

[fob 16] Q. Did you notice any one particular tool there?
A. Yes, sir, a chisel.
Q. What kind of chisel was that?
A. A  wood chisel.
Q. What did you notice about it?
A. It had blood on it.
Q. What did you notice about this door here ?
A. It was open kind of like this, and this stick was 

stuck in it.
Q. Did you go into this room where the stick was in the 

door?
A. Yes, sir.



11

Q. Tell us what you found there ?
A. My father and brother and Mr. McDade prized the 

door open so I could get in. I was the smallest and I 
squeezed in and when I got in I found his feet against 
the door. I squeezed in and moved his feet so they could 
open the door. I moved his legs and feet. He was breath­
ing hard then, but he died after I got in there. I was 
looking at him and he died right then. I reckon he was 
dying when I got in.

Q. How was he clad?
A. In his shirt and his underclothes.
Q. What was the condition of his face and head?
A. It was all blotted up with blood.
Q. Did you see any signs on the cotton seed or anything 

like that?
A. His shirt was scorched a little, and a lamp way laying 

over there, and the burner was a few feet from it.
Q. Where was the lamp?
A. Over against the wall.
Q. In the same room with the body?
A. Yes, sir.
Q. Where was the burner?
A. It was about four feet from the lamp.
Q. What was that you said about his shirt?
A. It was kind of scorched.

[fol. 17] Q. Where?
A. On the right shoulder.
Q. Was there any odor coming from the surroundings 

there ? Did you smell any kind of oil there ?
A. Well, I never paid any attention to that.
Q. You didn’t get down and make an examination of the 

body?
A. No, sir. The only thing I done was to move his legs 

so I could open the door.
Q. What, if anything, did you notice about the tool 

chest besides what you have told?
A. It was open and there was blood in it.
Q. What about the keys to the chest?
A. The keys was hanging in the lock.
Q. Do you have those keys with you now?
A. I got the keys here in my pocket.
Q. Let’s see them.
A. I reckon these are the keys; they are the ones you 

all gave to me a while ago.



12

Q, Show the jury how they were hanging.
A. I don’t know whether it was a bunch of keys or not.
Mr. Clark: You say you don’t know whether those are 

the keys?
A. No, sir.
Mr. Clark: Then we object to this.
Q. State whether or not it was a bunch of keys.
A. They was hanging in the lock.
Q. How many keys were hanging in the lock?
A. I never paid any attention to that.
Q. What kind of lock was that?
A. One of these silver looking locks.
Q. Did you take the keys out?
A. No, sir, I never touched them.
Q. Were you there when Dr. Wall came?
A. No, sir.

[fol. 18] Cross-examination.

By Mr. Clark:
Q. When you were talking about that standard, did you 

mean one of these up-right pieces that go in a hay frame ?
A. Something like that; it was in the door.
Q. Was it sharpened on one end or both ends?
A. I never paid any attention to that.
Q. What kind of timber was it?
A. It looked like ash to me.
Q. Did you see any blood on it?
A. No, sir, I never did examine that close.
Q. You didn’t examine the body for any wounds?
A. No, sir. I just moved his feet so i  could open the 

door.
(Witness dismissed.)

Dr. W all, a witness for the State, after being duly sworn, 
testified as follows:

Direct examination.

By Mr. Stennis:
Q. This is Dr. Wall?
A. Yes, sir.



13

Q. You live in Scooba?
A. Yes, sir.
Q. Are you licensed to practice medicine in the State of 

Mississippi?
A. Yes, sir.
Q. How long have yon been practicing medicine?
A. About 25 years.
Q. Doctor, on last Friday, did you go to the home of Mr. 

Raymond Stewart?
A. Yes, sir.
Q. Did you make an examination there of Mr. Stewart’s 

body?
A. Yes, sir.

[fob 19] Q. Doctor, going somewhat into detail give the 
jury here the benefit of your observations and your exami­
nation of Mr. Stewart’s body.

A. I was in compisny with Mr. T. H. Nicholson; he is 
the marshal? of Scooba. We went in the back door, and in 
this little hallway where the killing was consum-ated there 
was broken pieces of a lamp chimney on the floor. The way 
my attention was attracted to that was that I stepped on a 
piece and broke it.

Q. Point out on this plat how you entered when you 
went in the house, please, sir.

A. We went in on these steps here.
Q. That is kind of on the side of the house?
A. Yes, sir. We went in this little hallway right here.
Q. Where was it that you observed the glass?
A. Back to the left there, and the next thing I observed 

was a chisel. The tool chest was open, and the trays were 
in it, and this chisel was laid across on top of the trays. 
The chisel was bloody from one end to the other. There 
was blood all over the tool box, but in this corner over here 
was a big puddle of blood. Then Mr. Nicholson and I—I 
don’t know which went first, but he or I tried to get in 
the door but the door was closed and we had to push and 
force on it to get it open. Cottonseed was piled against the 
door. Mr. Stewart’s feet were down against the door from 
the inside, and we went in this way. The body was laying- 
something about like that. The bowl of a lamp was about 
a foot and a half away, and it was covered with blood. It 
was the bowl of the lamp they had had in the hallway. The 
burner was a little closer to the body. The whole wick,



14

the upper part and the lower part, showed that it had been 
on fire. I noticed that the cottonseed was scorched. Some 
of the gentlemen told me------

Q. Don’t tell that.
A. He was dead when I got there.
Q. How long had he been dead when you arrived there? 

[fol. 20] A. From 15 minutes to a half hour. I got there 
about 1:15, and I didn’t touch the body except to feel the 
pulse. Afterwards I examined him when he was brought 
out.

Q. Did you notice anything about the condition of his 
shirt, not with reference to blood as to whether there were 
any other signs on it?

A. I noticed it was burned and scorched.
Q. Whereabouts?
A. I don’t know whether it was on the right or left side; 

it was around his chest.
Q. Did you make a complete examination of Mr. Stew­

art’s body later?
A. Yes, sir, in connection with Dr. Cooper.
Q. Tell what your findings were; you may refer to your 

memorandum there.
A. Dr. Cooper made the examination, and he suggested 

at the time that I make a note of the findings as we went 
along. We found an intused bruise or wound on the right 
shoulder. There was an almost perfect imprint there of 
what looked to us like------

Mr. Clark: We object to what it looked like.
Q. Just describe the appearance of the wound.
A. It could have been done by an ordinary ax or a heavy 

club. It was just about that long, right in here. The collar 
bone was broken, and the shoulder joint was bursted all to 
pieces. On this arm, the bones were cracking when we went 
to move him. That was due to a direct blow; it may have 
been aimed at his head, but that is where it hit, on the 
right shoulder. On account of his not dying and the cir­
culation keeping up for some hours after he was struck 
there was some contusion and blueness extending from that 
point up the side of his neck. I noted also that the skin 
was off his right cheek. I attributed that possibly to a 
burn and blister and in struggling on the cotton seed the 
skin over the blister might have been rubbed off. We found



15

a number of fractures of the skull, possibly 4 or 5, and a 
[fol. 21] contused wound on the head also.

Q. Tell where those were.
A. Right back of the left ear there was a wound; you 

might say it was a puncture there. Dr. Cooper ran both 
fingers down to the skull and told me to examine it also. 
I ran my two fingers in that place, and there was a fracture 
of the skull there.

Q. Indicate to the jury just where that was.
A. At just about that point. Then there were two cut 

wounds behind the left ear and fractures also. There was 
also a deep cut wound in front o- the left ear that you could 
run your finger in plumb down to the bone. In the top of 
his head the bones were beat to jelly and there were cut 
wounds in there you could run your finger in. When we 
first observed Mr. Stewart laying there, there was blood 
caked all over his face; you wouldn’t know who he was. 
There was no way to identify him then.

Q. After that was partly removed, did you identify it as 
being the body of Mr. Stewart?

A. Yes, sir.
Q. Doctor, I believe you told us where that lamp bowl 

was, but you didn’t tell us what was on it.
A. It was in a little cotton seed room, in there with 

Mr. Stewart’s body. Cottonseed had been thrown in the 
room, and the highest part was up there and it was sloping 
on down toward the door. There may have been several that 
handled the body. It was thrown well us in there, and in 
struggling it eased down against the door. The bowl of 
the lamp was covered with blood and was laying possibly 
a foot and a half from his body. This burner from the 
lamp was possibly 7 or 8 inches or a foot from his body. 
We also noticed that the wick from this lamp evidently had 
been unscrewed and thrown in there, either on the body 
or close by, and it was burned all over. Both ends of the 
wick showed they were charred.

Q. What kind of odor was there where you found the 
body?
[fol. 22] A. Coal oil predominated; you could notice that 
perceptibly.

Q. Did you say anything about the chisel?
A. There was a chisel laying crossways on the little racks 

in the tool chest.
Q. Did you notice anything on it ?



16

A. Yes, sir, it was covered with blood, the handle and 
blade both.

Q. Did you see anything of a stick there?
A. I saw a wagon standard, but I don’t remember 

whether it was in the hallway or the back gallery.
Q. From your examination and opinion, did these wounds 

or any of them cause Mr. Stewart’s death?
A. Yes, sir. Any of them except the wound on his 

shoulder could have caused his death.

Cross-examination.

By Mr. Clark:
Q. Doctor, who called you to the scene?
A. Mr. Luten Adams.
Q. Who was there when you arrived on the scene?
A. I remember Mr. T. H. Nicholson being there.
Q, Did he go there with you?
A. I don’t think he did.
Q. Did you see young Mr. Owen there ?
A. Mr. Dave Owen was there, and Mr. Will Adams, and 

young Mr. William Adams.
(Witness dismissed,)

Db. I. W. Coopeb, a witness for the State, after being duly 
sworn, testified as follows:

Direct examination.

By Mr. Graham:
Q. You are Mr. I. W. Cooper?
A. Yes, sir.

[fol. 23] Q. Doctor, did you have occasion to visit the 
home of Mr. Raymond Stewart on Friday of last week?

A. Yes sir.
Q. Did you have an opportunity to see and examine his 

body?
A. We did, yes, sir.
Q. Tell the jury, please, sir, just what condition you 

found Mr. Raymond Stewart’s body in.
A. When we got there, we found Mr. Stewart in the cot­

ton seed room. The cotton seed were on an incline, and



17
Ms feet was down against the door. When we got there, 
we determined to make fingerprints off the lamp. When 
they finished, we brought him out in the bed room and there 
Dr. Wall and I examined him. His face was all bloody and 
swollen. His right shoulder and his collarbone were frac­
tured. He had two fractures of the skull where some blunt 
instrument drove the bone in. Back of his left ear he was 
cut to the bone and through the bone. He was cut on the 
left jaw bone, and there were numerous cuts over his head 
and on his face and shoulder. We searched carefully for 
any gun shot wounds and did not find any over his body.

Q. Doctor, did you go in the cotton seed room?
A. Yes, sir.
Q. What odor, if any, did you detect there?
A. Coal oil.
Q. Did you see any indication of the use of coal oil in 

there?
A. The detective had a lamp and a burner.
Q. What signs of blood, if any, did you see?
A. There was blood on the tool box and on the chisel and 

all around the hall where the box was.
Q. What about the wound that you examined on the head 

of Mr. Stewart, was it sufficient to cause his death?
A. I think any one of five wounds on him would have 

caused his death.

Cross-examination.

[fol.24] By Mr. Clark:
Q. When did you arrive on the scene?
A. About 4 :15 or 4 :30.
Q. You drove from Meridian?
A. Yes, sir. I brought Mr. and Mrs. Stewart up.
Q. Doctor, did you say a while ago that you went for the 

purpose of taking finger prints ?
A. No, sir. I said a detective was taking them when I 

got there.
Q. The body was still in the seed room?
A. Yes, sir.
Q. Dr. Wall was present there?

2—6653



18

A. Yes, sir. When I got there, I asked if they had a 
physician present, and they said he was there and I went 
and met him and we came on in.

(Witness dismissed.)

Mr. Henry Lavender, a witness for the State, after be­
ing duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:

Q. This is Mr. Henry Lavender?
A. Yes, sir.
Q. You live in this County over near where Mr. Ray­

mond Stewart did live ?
A. Yes, sir, 4 miles from him.
Q. After Mr. Stewart’s death, were you making an in­

vestigation or assisting in making an investigation into 
the cause of his death?

A. Yes, sir.
Q. Tell whether or not you went to the house of one of 

the Defendants here, Henry Shields?
A. Yes, sir.
Q. Don’t tell what it was, but did you receive any in­

formation?
[fol. 25] A. Yes, sir. We got information there was some­
thing down there and we went to make an investigation to 
see what we would find.

Q. Tell what you found there.
A. We went on down there to his house. We went by 

Mrs. Ethridge’s and asked could we make an investigation. 
She told us to go and if we needed to to go ahead and break 
in. We went to the window and shook it and it came open. 
We went in the house and opened the door and found a pair 
of shoes, by the door where it looked like a bench had been 
pulled up there and the shoes pulled off. I spoke------

Q. Tell what you did there.
A. We went and turned up the bed and looked under the 

bed and couldn’t find nothing. We got in the kitchen, and 
there was a pen built in the corner of the house about three 
feet high. We seen a pile of clothes in there and looked in 
them and down about that deep in the clothes we found a



19

jumper. We pulled it out and seen grey hairs on it. I 
said: “ Don’t you reckon this is hog hair” ? We taken it 
to the light, and they said: “ No, this is human.”  We spread 
it out and looked and found blood on the jumper in the 
front on both arms and also all over the hack, and there 
was some slobber on the back and gray hairs. That was 
where they had hit him on the head, I suppose, and knocked 
the hair out.

Q. You observed hair of what color there!
A. Gray.
Q. State whether or not in your opinion it was human 

hair.
A. It was.
Q. Do you know Mr. Raymond Stewart!
A. Yes, sir.
Q. What was the color of his hair?
A. It was gray.
Q. Go ahead and tell about the jumper. Do you know the 

defendant Henry Shields ?
[fol. 26] A. Yes, sir.

Q. This was at his house?
A. Yes, sir. That is the jumper that we found.
Q. Is this in the same condition that it was when you 

found it !
A. Yes, sir, only some of the blood has been rubbed off, 

it looks like. You can see the stain of the blood here and 
here and all over the sleeve here, and it looks like someone 
tore a place there. You could tell it was a fresh tear, and 
alsoi here.

Q. Was it torn that way when you found it?
A. Yes, sir.
Q. How about these overalls?
A. I don’t know anything about them. After we found 

this jumper I said that we had better carry this with us.
Mr. Clark: We object to that.
The Court: Sustained.
Q. Did you later make a further search of the house or 

premises ?
A. Yes, sir. I went up there a second time; I had heard 

there was an ax in the house. I went and looked in the 
house, and it was not there. Then I went out to the wood 
pile and got to looking and found the ax in the wood pile



20

with two sticks of wood over it like that, and the handle 
was sticking out about that way.

Q. About how far?
A. About four inches. I picked the ax up like this and 

laid it on a stick of wood and looked on it and found blood. 
The ax looked like it had been freshly washed; you can 
see on top there the rust where it was freshly washed. It 
looks like it failed to wash off there; yon can take it and see 
for yourself.

Q. Wait a minute. At the time you found it, state whether 
or not the blood on it appeared to be fresh blood.

A. Yes, sir.
Mr. Stennis: We would like to introduce this coat and ax 

as Exhibits to the testimony of Mr. Lavender.
The Court: All right.

[fol. 27] Q. After you had found these articles, did you 
have a conversation with the defendant h-re Henry Shields?

A. I haven’t had any conversation with him at all.
(Witness dismissed.)

Mr. J. H. A dcock, a witness for the State, after being 
duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:

Q. You are the Sheriff of this County?
A. Yes, sir.
Q. Do you know these defendants here?
A. Yes, sir, since I have seen them the last few days.
Q. Point out to us which is which.
A. As they sit, the one on the right is Yank Ellington, 

the next one is Henry Shields and the last one is Ed Brown.
Q. Did you know them before this matter came up?
A. No, sir, I never saw them that I know of.
Q. Mr. Adcock, down in the Meridian jail last Monday 

afternoon or night, did you have a conversation with either 
one of these defendants concerning the death of Mr. Ray­
mond Stewart?

A. Yes, sir.



21

Mr. Spinks: We suggest that this examination be had out 
of the presence of the jury.

(The jury retires.)
Q. Mr. Adcock, I believe you said you had a conversation 

with all three defendants last Monday afternoon or night?
A. Night, I think.
Q. Now, before you talked to these boys, tell whether 

or not you told them who you were and what else you told
them.

A. Well, I talked to them separately. I told them that I 
wanted them to tell me the truth about that tragedy over 
[fol. 28] there, that I was the Sheriff. Mr. Creekmore was 
present, and he was a Deputy and that ail the other men 
were officers trying to save them from any harm or danger 
outside, and that was the reason that all of them were there
then. I said: “ Go on and tell the truth about this thing; 
no harm can come to you here. ’ ’

Q. When you talked to them there, state whether or not 
you told them whether they must talk or they could leave 
off talking.

A. No, sir. I only insisted on them telling the truth. I 
told them to tell the truth and the whole truth regardless 
of who it might hurt or help.

Q. Did you offer them anything to tell it, or did you make 
any kind of promise of immunity to them?

A. No, sir. I told them that I couldn’t promise them 
anything at all. I asked this boy Ellington how he got to 
Meridian, and he said they took him by Livingston, and I 
asked him if he knew what that was for.

Q. Did you promise him, any immunity from the conse­
quences of whatever he had done?

A. No, sir. I told them I couldn’t promise them any­
thing.

Q. Was there anything said by you or them either that 
they would be responsible for whatever they would say?

A. Yes,  ̂sir, I don’t know at just what stage that was 
said, but it was said sometime during the conversation.

Q. Was there any kind of force, threats or intimidation 
used by you or any one there before they started to make a 
statement ?

A. None whatever. I spoke to them separately, but I 
was as kind as I knew how to be.



22

Q. Did they make any complaint about being questioned?
A. No, sir.
Q. What expressions did they make with regard to your 

treatment of them?
A. They seemed to be satisfied, and one or possibly more 

said that we dealt very kindly with them. They said to 
me that I didn’t even look like I was mad.
[fol. 29] Q. What did they say about feeling better after 
making the confessions ?

A. After making the confessions or* statements, and they 
were practically agreed on their statements, this Ellington 
said that he felt much better. I said: “ You told the 
truth?”  and he said: “ Yes, sir.”  I said: “ Any man does 
feel better when he tells the truth. ’ ’ One of them asked for 
a cigarette, and I asked Brown, “ How about you: How do 
you feel?”  and he said: “  Yes, sir, I feel much better.”  
They said: “ You white folks treated us mighty nice.”  I 
said: “ You made this statement freely and without 
threats?”  and they said: “ Yes.”  When they finally agreed 
on it, I said: “ This is the truth?”  and they said it was. I 
said: “ Are you willing to tell this anywhere?”  and they 
said they were. We told them that we wanted them to teil 
the truth. I said: “ Was there anybody else in the plot?”  
and they said, there nobody else in it, I said: “ There was 
no other person, colored or white, in it?”  and they said: 
“ No, sir.”

Q. Today have either one of these boys said anything to 
you about what they told you in the jail being the truth?

A. Yes, sir.
Q. What did they say to you today?
A. Two of them said to me that what they told me was 

exactly the truth.
Q. Which two was that?
A. Ellington and Brown.
Q. Who was present at this conversation in Meridian on 

Monday night?
A. Myself, Mr. Creekmore, Mr. Stevens, the Sheriff, and 

his brother who is a minister, Mr. Keever, Mr. Ford Vance 
and Mr. Parker, the jailer, Mr. McGee, Mr. Shannon and 
another young man called Bill.



23

Cross-examination.

By Mr. Clark:

Q. Mr. Adcock, did yon warn each one of these boys be- 
[fol. 30] fore they made any sort of admission of gnilt that 
what they might say might be used against them ?

A. I don’t think that I expressed it in that sense. I said 
to them that I couldn’t promise them anything. I told them 
I wanted them to tell the truth, and I said I thought they 
ought to tell the truth. I said: “ We have tried to save 
you from any harm up until now, and we have got you here 
where we think you are safe. ’ ’ I asked them if they under­
stood what the law might do to a man that did this and 
asked if they knew they might hang for this crime, and they 
said they did.

Q. Did you make that statement to them at the begin­
ning?

A. Yes, sir, it was before we got them all together.
Q. Did you make any kind of threats against them?
A. None whatever.
Q. You didn’t threaten to use any sort of force against 

them?
A. No, sir.
Q. Did any of the other parties present that you named 

a moment ago have a gun displayed there or a strap or 
any sort of weapon?

A. No, sir.
Q. Was Mr. Cliff Dial there when the confession was 

made?
A. No, sir.
Q. Did these boys or either one of them make any com­

plaint to you before they made the confessions that they 
were laboring under a severe mental strain or fear?

A. No, sir, they seemed to be perfectly all right.
Q. And you say that this confession they made to you 

was free and voluntary on their part?
A. It had every appearance of being free and voluntary.
Q. Did they undertake to narrate what happened, or did 

they make answers to questions asked them?
A. Well, at first it looked like they were holding back, 

and they refused to make a complete statement. I told 
them this when they would say something; I would say:



24

“ No, that is unreasonable and it doesn’t smack with rea- 
[fol. 31] son.”

Q. Did that happen before they made the statement or 
during the course of the statement ?

A. During the early part of the questioning.
Q. Did they, during that questioning, undertake to tell 

in their own words in a narrative form, just what hap­
pened?

A. Yes, sir.
Q. Each of them did that?
A. Yes, sir.
Q. I believe that you said in the beginning you explained 

to them that they might hang for it; you asked them if 
they knew they might hang for it ?

A. I asked them if they knew the law was such if they 
were found guilty of that crime, if they were convicted, 
they would possibly hang for it, and they said they knew 
that.

Q. Do you know whether these boys had made a con­
fession prior to that time, prior to making the confession 
to you?

A. I don’t know; I had heard that.
Q. Did they make any complaint to you about that?
A. I don’t think they said anything about a confession. 

One of the boys, Shields I believe, came in limping, and 
he kind of got on the box easy and looked like he was ex­
cited. I said: “ Henry, sit on that box,”  and he said: “ I 
can’t ; they strapped me pretty hard. ”  I said: “  Make your­
self comfortable; nobody is going to hurt you at all. All 
of us are here for your protection.”

Q. Did you understand that the confession that he had 
already made was brought about by putting him on a box 
and using a strap on him?

A. I didn’t understand anything about how it might 
have happened, but he stated that he couldn’t sit down.

Q. He didn’t tell you whether he confessed or not on 
account of that ?

A. No, sir, I didn’t ask him anything about that.
[fol. 32] Q. You don’t know whether he had confessed or 
not, but you had heard that he had?

A. I had heard it.
Q. But you don’t know under what circumstances?
A. No, sir.



25

The Court: I think the confession is admissible.
Mr. Clark: We object to it, and except to the ruling of 

the Court.
(The jury returns.)

Examination by Mr. Stennis:
Q. Now, Mr. Adcock, you said a few minutes ago before 

the jury retired that these defendants made a statement to 
you in the Meridian jail last Monday night with reference 
to the death of Mr. Stewart?

A. Yes, sir.
Q. Was there any kind of threats or intimidation of these 

defendants at that time?
A. No, sir.
Q. Was there any kind of promise of reward or immunity 

held out to them?
A. No, sir.
Q. Tell who was present the best that you remember 

when the statements were made.
A. Mr. Creekmore, my deputy, went with me. Mr. 

Stevens and several of his deputies were there, Mr. Ford, 
Mr. Dick Keever, Mr. Parker, Mr. Shannon, and I don’t 
know the other deputies, and Mr. McGee, the jailer, and 
Eev. Eugene Stevens, brother of the Sheriff.

Q. Did you talk to all of them or one at a time ?
A. One at a time; Henry Shields was first.
Q. Did you talk to him by himself ?
A. Yes, sir.
Q. Did you talk to the next one alone?

[fol. 33] A. Yes, sir.
Q. Which one was that?
A. Ed Brown.
Q. Then the last one you talked to was Yank Ellington?
A. Yes, sir.
Q. After that you talked to them all together ?
A. Yes, sir, we brought all three together after that.

_ Q- Tell what, if anything, these defendants said at that 
time when all three were there together in the presence of 
these other gentlemen and yourself about their connection, 
if any, with Mr. Stewart’s death. Take first what Brown 
said to you.

A. I would rather take them like I talked to them.



26

Q. All right.
A. Henry Shields said they met somewhere down the 

road on that day, which was Thursday.
Q. Yon are relating the conversation when all three were 

together ?
A. Yes, sir, I would like to make this statement. I ques­

tioned them separately and then brought them together 
and asked for a statement, and all of them made this state­
ment there together.

Q. That is the time that you are testifying about now?
A. Yes, sir. Henry Shields said they met that afternoon 

some time down the road; he didn’t undertake to say just 
where. These hoys, Ellington and Brown, told him they 
were going to kill Mr. Stewart for some money that he owed 
them for cotton checks, that he wouldn’t give them the 
money, and they were going to have it and they wanted him 
to help kill him. He agreed to help them, and they were to 
meet about midnight down at Ed Brown’s house. They did 
meet down there at Ed Brown’s house and talked the mat­
ter over and left and went to Mr. Stewart’s. Henry Shields 
and Ellington went directly to the west end of the house by 
the chimney and the door to the bedroom where Mr. 
Stewart was sleeping.

Q. You say that they said Ellington and Henry Shields 
[fol. 34] went in the residence by an entrance near the 
bedroom?

A. It is right by the chimney, and there is a door there 
and the steps come up into the bedroom. I asked them about 
the bed, and they said it was over in the corner of the room, 
and they could see his form in the bed. Ellington said that 
Henry hit the first lick with a stick., and Henry said Elling­
ton hit the first lick. Each one said the other made entrance 
to the room first. Mr. Stewart jumper up or undertook to 
get up, Ellington said, after the lick with the stick; he 
jumped up and Shields hit him aith an ax. He jumped up 
and said something; they never did tell exactly what he 
said. He undertook to go out the door into the hallway, 
and Shields struck a match and give it to him and told bim 
to light a lamp.

Q. Who did that ?
A. Shields. Ellington said that about Shields, and El­

lington said Shields hit him with an ax and struck a match 
and told him to light a lamp, and he followed him on in the



27

hall-way, and Shields hit him again with the ax, and he run 
after him with the light. Mr. Stewart started out the end 
of the hall into another little entrance, I call it the back hall, 
and he met this Ed Brown. He went around the house and 
came in the back and was in the hall-way and had torn open 
a chest and had secured a foot-ax, and he said he hit him 
with that.

Q. Who did?
A. Ed Brown. Shields said Yank hit him with the stick 

again and knocked the lamp chimney off. About that time 
he fell against the tool chest. When Ed Brown hit him he 
fell. Ellington said he hit him one or possibly two licks 
with a chisel, a wood chisel with a wood handle about 8 
inches long. I saw that chisel there myself. I asked them 
if they hit him any more after he fell, and they said they 
didn’t. Shields said Ed Brown took the lamp and went 
in the house, and he had the keys and unlocked the safe and 
[fol. 35] looked in there and in the closet and all around for 
money, but he didn’t find any money. He came back there, 
and Ellington and Shields put the body in the cotton seed 
room. The door was right at the end of the tool chest 
where the body fell across it. He said he got down under 
the man’s arms and pulled him up, and his head was some­
where near——-

Q. Who did that?
A. Shields did that. He said that himself, that he pulled 

him up and his head was right about there. He had his 
arms under the other man’s arms, and Ellington took him 
by the body or legs and he pushed the door open and 
dumped him on the pile. Shields said Ed Brown took the 
lamp after he didn’t find any money and poured the oil 
around Mr. Stewart and on him and on the cotton seed. He 
threw the lighted wick down there, and said he was going 
to burn him and the house up. Then they all left there. 
Brown told us—he was the next man we talked to—he told 
us they entered into the plot that afternoon, and that they 
came to his house that night and called him out and they 
had an understanding before they left there. They went up 
there, and he said two men went in the end door, and one in 
the side door.

Q. WTiat purpose did he say they went for?
A. Ellington and Brown said they went to get money, 

and Shields said they complained about not getting their



28

cotton checks, and if he would go with them to get the 
money, they would give him $12.00 each. I asked him what 
he was to do up there, and he said he was to watch and hold 
the light, but he was to get $12.00 apiece, which would be 
$24.00.

Q. Go on with Brown’s statement.
A. He said they all agreed sometime in the afternoon in 

the road to meet at E d’s house that night, and that is where 
they met. Around 12:00 o ’clock, they rode by there; he had 
it all the way from 12:00 to 2:00 o ’clock. He agreed that 
they all went there and Ellington and Shields went in the 
end and into the bed room, and Brown went in the back and 
waited with the foot ax.
[fol. 36] Q. That is what Brown said?

A. Yes, sir. He said he didn’t know what happened 
when they got in the room, but he waited until they got out. 
He said Shields hit him with the ax in the big hall-way, and 
he was waiting there and when he came out there, he hit 
him with the foot-ax and he fell.

Q. That is what Brown said?
A. Yes, sir, when all of them were present.
Q. Tell us what else Brown said about it.
A. Brown said that Henry and Ellington put his body 

in this room, and that Henry Shields poured oil on Mr. 
Stewart and around him and on the cotton seed, and tried 
to set it on fire. They left there then.

Q. Did you ask him what he did with the foot-ax?
A. He said he tried to throw it in the well, and he thought 

he did. He said it was dark out there, and I asked him if the 
well had a top on it, and he said it didn’t. There was a 
frame on it, but it had an open spcaer in it about two feet 
by three feet.

Q. Is that a well or a cistern?
A. I would call it a cistern.
Q. What, if anything, did Ed Brown say about what 

they did with the stick.
A. No, sir, he didn’t say.
Q. Did he say anything about the lamp chimney?
A. He said it was knocked off in the scuffle somewhere 

there on the back porch. I  asked him about that. I saw a 
piece of it there myself.

Q. What did Brown say that he did after he was struck 
there in the hall-way near the tood chest. I believe you said 
that Brown said Shields was the one who put the oil out?



29

A. Yes, sir. Brown never said anything about going in 
the house looking for any money, but he said Shields and 
Ellington carried the body in the seed room, and Shields 
[fol. 37] poured oil on and around him, and was going to 
burn it up.

Q. Brown didn’t say anything about finding any money?
—. They all said they didn’t find any money. I said: 

“ You found some in his pants pocket?” , and they said: 
“ No, sir. We didn’t find a thing but a penny and a pocket 
knife.”  I said: “ You got a dollar or two, didn’t you?” , 
and they said: “ No, he didn’t have a dime.”  I said you 
threw the pants on the tool chest, and he said: Yes, sir.”  I 
said: “ What did you do with the penny and the pocket 
knife?” , and he said: “ I don’t know.”  I said: “ what kind 
of knife was that ? ’ ’, and he said it was a long black handled 
knife. I said: “ Have you ever seen that before?” , and he 
said: “ Yes, sir, I seen it at Mr. Stewart’s.”

Q. You had the knife there then?
A. Yes, sir. It had three blades, one long sharp blade. 

I said: “ Do you think that you would know it now?” , and 
he said: “ Yes, sir.”  I pulled the knife out, and he said: 
‘ ‘ That is the knife. ’ ’

Q. Where had you gotten that knife that you had there?
A. Somebody gave it to me that afternoon.
Q. At Mr. Stewart’s home?
A. Yes, sir. Possible it was Mr. Howard Nicholson.
Q. What, if anything, was said about an ax by either one 

of the parties there ?
A. Ellington and Brown said Henry Shields had the ax 

that evening and that night when he came up there. They 
said he carried it to the house and went in the room with 
it. Ellington said Henry hit the first lick with the ax; he 
first stated that he hit him with a stick, and then he said he 
first hit him with the ax.

Q. What did he say became of that ax?
A. He didn’t know any more about it ; he said Henry left 

there with it. Henry denied that.
Q. What, if anything, was said about a jumper with 

blood on it?
A. All I knew about it was that they told me— —
Q. What did they say about it to you on that occasion? 

[fol. 38] A. I asked them, and Ed said that was his 
jumper and he gave it to Henry down at the house, and



Henry admitted that. Ed told him to put it on, and he did. 
When it was all over with, he took the jumper off and threw 
it down by the chimney there at the bed room.

Q. At whose house?
A. Mr. Stewart’s. He told me that he had another jumper 

on, and Ed told him to put the old one on too. Of course, 
I didn’t know anything about the blood stains on it.

Q. Mr. Adcock, did either one of those boys say anything 
about the reason for the jumper being exchanged between 
them, or anything like that?

A. Henry Shields said Ed Brown gave it to him and told 
him to put it on over his to keep off any blood stains.

Q. And they left that jumper there at Mr. Stewart’s 
house ?

A. Tes, sir, that is what he said. I asked him about it 
being found at his house, and he said he didn’t know any­
thing about that. I asked him about the ax, and he didn’t 
know anything about that.

Q. What, if anything, did Henry Shields say about him 
entering into the agreement with the other two?

A. He agreed to do the deed for $12.00 a piece from the 
money that they were to get. Ellington said: “ How could 
we pay you $12.00 when we didn’t know what we was going 
to get. Whatever we got we was to split it. ’ ’ That was the 
way he expressed it. Henry said that he had an under­
standing with them that evening, and he went to Ed Brown’s 
house that night, and he went in the room where Mr. Stewart 
was with Ellington, and Brown came in the back.

Q. You have taken up Henry Shields and Ed Brown 
now; tell what Y-nk Ellington said he had to do with it.

A. They met down the road that evening, and all agreed 
they was to kill Mr. Stewart for his money and get his 
money.

Q. How much did he say they expected to get?
A. They never did say. He said they understood he had 

[fol. 39] some, and they would kill him for.his money. They 
were to meet at Brown’s house that night, and they all did. 
My understanding from Ellington was that Henry was a 
little late getting there, and Ed said to him, “ Henry, we 
had about given you out.”  They called Ed out and dis­
cussed it and agreed to go right on up there.

Q. Now, Mr. Adcock, what did Yank Ellington say was 
his part in the whole transaction?

30



31

A. Yank said he agreed with them that afternoon and 
went to Ed Brown’s house that night. They had an under­
standing what each one was to do when they got up there, 
amd he and Henry Shields went in the end door, and Henry 
had his ax. He said Henry hit him with a stick; I don’t 
think he said where Henry got the stick. Mr. Stewart was 
in the bed, and they couldn’t see him; they could just see 
his form, and they didn’t know which way his head was. 
Henry hit him with a stick, and Henry lighted a match and 
told him to light a lamp. Henry hit him with the ax then, 
and Mr. Stewart jumped up. Mr. Stewart started out the 
door and Henry followed and hit him with the ax. He 
struck his first lick when he got the chisel, and hit him one 
or two licks with the chisel.

Q. Yank hit him with the chisel?
A. Yes, sir.
Q. What else did he say he did?
A. He helped to put him in the room there, and then 

after it was all over with, they left. They said they didn’t 
know where Henry Shields went. Yank said he went home, 
and Ed said he went home. Henry said he went down the 
road and waited for the boys; he left first, and waited for 
them. I asked him this question: “ Did they give you 
$12.00?”  and he said: “ No, sir. I was waiting for them 
down there, but they never did come.”

Q. That was Henry who said that?
A. Yes, sir. I said: “ Didn’t you know that they didn’t 

have any money?” , and he said: “ No, sir.”
[fol. 40] Q. I didn’t understand what you said Yank said 
about the time they were in the bed room; tell whether or 
not Yank hit Mr. Stewart in there.

A. No, sir. He denied it.
Q. What did Henry Shields say about that?
A. He said Yank hit him first with a stick; he said he 

never did hit him.
Q. What was the purpose in lighting the lamp? Did 

Henry Shields say about that?
A. So they could follow Mr. Stewart out. They knew the 

other man went in the other way to head him off, and they 
lighted the lamp so they could see him and followed him 
down the hall-way into the back hall.

Q. Henry Shields said that he was carrying the lamp?
A. Yes, sir. Ellington said he was carrying the lamp and 

Henry had the ax.



32

Q. While they were there together with you and the other 
gentlemen, when Ed Brown would tell about how they plot­
ted to do this, would either one or the other two deny it!

A. They all agreed at the meeting that afternoon and the 
understanding was they were to meet at Ed Brown’s house 
and go from there to Mr. Stewart’s house and kill him. 
Shields denied that he hit a lick at all.

Q. Did Shields deny anything esle in connection with 
the crime except that he didn’t hit a lick!

A. No, sir.
Q. After you talked to them there, what, if anything, did 

you say to them about how they felt ?
A. I asked them if they had told the truth and all the 

truth, and they said that they had. This little boy on the 
end, Ellington, I believe he was smiling. He said: “ Yes, 
sir. I feel a whole lot better.”  He asked one of the gentle­
men there for a cigarette. I said: “ Any man who tells the 
[fol. 41] truth feels better.”  I said: “ What about you, 
E d !” , and he said: “ Yes, sir, I feel a heap better.”  I said: 
“ What about you, Henry!”  and he wouldn’t answer. The 
others said they had told us what licks they hit, and that 
Henry hit two licks with the ax.

Q. Did Henry say that!
A. No, sir, he denied hitting any at all.
Q. Did either one of them say anything about being both­

ered about being able to rest!
A. Ellington said: “ I feel a heap better; yes, sir, I sure 

do. I think I can sleep good now.”  Ed Brown said: “ I 
think I will too.”

Q. Did Shields say anything about that?
A. He hasn’t answered yet about that.
Q. Mr. Adcock, this bunch of keys that I hand you, did 

you see those anywhere around the premises at Mr. Stew­
art’s home?

A. Yes, sir. On the afternoon that the investigation was 
being made I saw this bunch of keys, with this key sticking 
in the tool chest and the balance of them hanging there.

Q. What, if anything, did those boys tell you about these 
keys?

A. Henry Shields and Yank Ellington said that Ed 
Brown carried the keys for Mr. Stewart practically all the 
time, that he done the feeding, and that he carried these 
keys with him. This key was sticking in the tool chest.



Q. Did they say anything abont Ed having the keys that 
night?

A. I don’t remember about that. Yes, he said that Ed 
took the keys and went in the house and unlocked the safe 
and closet and was searching for money. He took the lamp 
and the keys and went in and unlocked the safe.

Mr. Stennis: We introduce these keys in evidence as 
Exhibit A to the testimony of Mr. Adcock. (Marked Ex­
hibit “ A ” .)

Cross-examination.

By Mr. Spinks:

Q. Mr. Adcock, did I understand you to say that each of 
these boys admitted that they went to Mr. Stewart’s house 
that night?
[fol. 42] A. Yes, sir.

Q. Did each one of them admit that they were present 
when Mr. Stewart was being attacked by one or another of 
the three?

A. Yes, sir. All were in the house, two in one room and 
the other waiting at the end of the hall.

Q. For instance, when Ed Brown was undertaking to 
make his narration of what happened, was he interrupted 
and charged by either of the others of telling a falsehood 
on either of the others?

A. No, sir. Brown and Ellington both said that Henry 
had the ax, and he denied it.

Q. That is the ax they claimed he hit with, and Henry 
denied hitting him at all; did they give a sufficient descrip­
tion so that the ax was pictured on your mind?

A. Yes, sir. I asked Henry to describe the ax, and he 
said it was an ax with black letters on the side, and near 
the ax it was busted a little piece. I asked him if it had 
a new handle, and he said it was pretty new.

Q. Did Henry admit having the ax that night ?
A. No, sir.
Q. He denied having it?
A. Yes, sir.
Q. What did he say about the ax?

33

3—6653



34

A. I asked him if he had been confronted with the ax 
since he had been in jail, and he said he had. I asked him 
was this his jumper, and he said: “ Yes, sir.”  I asked him 
if it was the one he had on, and he said it was. I asked him 
about the ax and he denied having it. He said that he left 
it at home.

Mr. Daws: A while ago, did I understand you to say that 
some one of the three told you that they had a meeting the 
afternoon before the killing that night?

A. Yes, sir.
Q. Which one was that?
A. All of them said they met in the road just before 

night.
[fol. 43] Q. How far was that from the Stewart /tome?

A. I don’t think I ever asked that question or that they 
ever told me. It was down in the road somewhere about 
a gate or near a gate. I didn’t know anything about where 
that was.

Q. Did they say that they had a meeting that afternoon?
A. All three of them said that. And they said that their 

understanding was that they would meet that night at Ed 
Brown’s house.

(Witness dismissed.)

Mr. Bbyce Stevens, a witness for the State, after being 
duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:
Q. You are sheriff of Lauderdale County?
A. Yes, sir.
Q. Within the last few days, have you learned to know 

Ed Brown, this Shields boy and Yank Ellington?
A. Yes, sir.
Q. Last Monday night in the County jail in the City of 

Meridian, did they, in the presence of each other and of you 
and Mr. Adcock and some other gentlemen, make a state­
ment about their knowledge or connection with the death of 
Mr. Stewart?



35

Mr. Spinks: We object to this as not being a free and 
voluntary statement.

The Court: Overruled.
A. Yes, sir.
Q. These boys were in jail there in your custody!
A. Yes, sir.
Q. Before those statements were made, what if anything 

did you say to them in regard to whether or not they must 
talk or whether or not you abused them any, or what was 
said to them!

A. I told them that they were in my care and keeping 
[fol. 44] and I was going to protect them even at the cost 
of my own life. I told them that I wanted any statement 
that they made to be free and voluntary on their part.

Q. You let them understand that they did not have to 
talk!

A. Yes, sir.
Q. Did they understand that what they said would be 

used against them?
A. That it could be, yes, sir.
Q. Were there any threats from you or anyone else? 

Was there any inducement of any kind to try to make them 
talk?

A. No, sir.
Q. Go ahead and tell the best that you remember what 

they said; I am talking about the conversation when all 
three were present.

A. Gentlemen, you can appreciate the fact that there was 
so much said I can only give the high spots. I can’t tell it in 
their language. After we got all three together, this Yank 
began to tell it and unraveled the whole thing. He made 
the confession that he first hit him on the head with a stick.

Q. Was there anything said about their previous plans?
A. Yes, sir. He said they had met up together in a side 

road some place and planned the killing. They set this 
night, Thursday I believe, to commit the crime. They met 
again after night and went up the road to Mr. Stewart’s 
home, and that he and this Shields went in one door and 
Brown went around to another door. Not being familiar 
with the premises, I couldn’t describe it any better than 
that, but they went in and found Mr. Stewart asleep in bed. 
Then and there was where they began. One hit him with a 
stick and he jumped up and ran out, and one hit him as he



36

went out, and finally lie was hit in the hall by Brown. He 
fell over the tool chest there. That was about this Yank’s 
testimony.

Q. What statement, if any did he make about his actions 
after Mr. Stewart fell?

A. He said before he fell, as he went out, he run and hit 
him with the stick and with a chisel. He hit him on the side 
[fol. 45] of the face with the chisel. I got the idea that the 
chisel was about this long.

Q. What happened after Mr. Stewart was struck in the 
hall-way by Brown?

A. He said that he and this Shields picked him up. He 
and Shields picked him up by order of Brown and. put him 
in the seed room and later Shields got the lamp and poured 
the oil out and set it on fire.

Q. Where did he say that he poured the oil?
A. On Mr. Stewart and the cotton seed.
Q. Do you remember Yank saying anything about what 

became of the lamp chimney?
A. I don’t believe Yank said anything but Shields said he 

had been toting the lamp and the chimney was knocked off. 
That was his statement.

Q. Coming now to Shields, tell whether or not Shields 
said he agreed to the plot and what he said about it.

A. He said they planned it, and he went with them. They 
agreed to give him $12.00 a piece if he would go, and he 
claimed that he held the lamp, after this boy hit Mr. Stewart 
he went and got the lamp and the boy struck a match and lit 
it as he held it. Out in the hall, the chimney was knocked 
off. It went out then and he had to relight it.

Q. What reason did he give for holding the lamp there?
A. They had him to go with them; they promised him 

$12.00 each.
Q-_ Did he say whether or not he agreed to help and was 

helping them ?
A. Yes, sir, he was helping.
Q. What was it that he said about Brown?
A. He said Brown came in a different door in the back 

hall.
Q. What did Shields say about a search being made of the 

house?
A. Yes, sir, he said after this man fell over the tool chest 

Brown went in the other parts of the house and made a



37

[fol. 46] search and came back. After they put him in the 
seed room, Brown searched the house.

Q. Coming to Brown, what did he say about his part!
A. He first said that he hit him with a stick in the back 

as he passed by, but later he opened up and said he would 
tell the truth. He said he hit him with a mad-ax just about 
the time that he got to the tool chest. He claimed then that 
this fellow Shields was the one that poured the oil out and 
set it afire.

Q. Brown said that!
A. Yes, sir.
Q. Hid he expadn what they meant to do by that!
A. Burn the house and get rid of it.
Q. Do you remember what either one said about what be­

came of this foot-ax!
A. Yes, sir. Brown said he put it in the well or made an 

effort to.
Q. What did they say about leaving the house after it 

was over!
A. Which one of them!
Q. Any of them.
A. Shields said after he helped get him in the room—he 

got him on his back kind of and had his hands under his 
arms, and this boy Yank got him by the legs. After they 
did that, he left. He said he left the jumper at the corner of 
the house on the outside at the chimney.

Q. That was Shields that said he and Yank carried Mr. 
Stewart’s body in the seed room!

A. Yes, sir.
Q. What did he say about whether or not he was dead 

or alive!
A. He thought he was dead or was going to die.
Q. After this conversation with you gentlemen had been 

completed, what, if anything, did the defendants or either 
one of them say about feeling better!

A. Yank first said that. He made his statement, and he 
said when he got through—someone asked him if he didn’t 
[fol. 47] fed better and he said he did feel better after he 
told that.

Q. What about Brown!
A. Brown said he did too.
Q. What about Shields!
A. He was a little bit sluggish all the way through. He 

didn’t talk as free as the others.



38

Cross-examination.

By Mr. Daws:
Q. Did this Defendant here, Shields, ever admit striking 

Mr. Stewart!
A. No, sir, I don’t think he did in my presence.
Q. All he told you and Mr. Adcock was that he helped 

put Mr. Stewart’s body in the seed house!
A. And he carried the lamp.
Q. And I believe you stated that the three of them told 

you that they had a meeting or conference that afternoon!
A. Yes, sir, some time during the day.
Q. Was there anything said about a cotton check!
A. There was in questioning them. They didn’t mention 

that until they were asked about it. They said there had 
been a check but that their part of the money had been 
credited to their account.

Q. Did this defendant here, Shields, say anything about 
a cotton check, or was it the other two !

A. The other two. I understood that Shields didn’t have 
any connection with the cotton check.

(Witness dismissed.)

Rev. E ugene Stevens, a witness for the State, after be­
ing duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:
Q. You live in Meridian, Mississippi!
A. Yes, sir.

[fol. 48] Q. Have you learned to know these three defend­
ants here!

A. Yes, sir. I just saw them one time before today.
Q. Where was that!
A. Last Monday night in the jail at Meridian.
Q. You were there in company with Mr. Adcock and your 

brother!
A. I went down there about 8 :00 o ’clock and happened to 

find them there.



39

Q. While you were there, was there a conversation be­
tween Mr. Adcock and your brother and you-self with these 
three defendants'?

A. I heard Mr. Adcock question these boys.
Q. Go ahead and give us the benefit of what you heard 

them say; you might take them one at a time. Do you know 
them apart?

A. That is Ed Brown on the left, and this is Shields and 
this is Ellington.

Q. Tell us what they said about their alleged connection 
with the killing.

A. It would be impossible to tell just what happened 
throughout the examination, but I will say that he examined 
them separately first and then he brought them together.

Q. Were you there during all that time?
A. Yes, sir.
Q. During all the time you were there, were any threats 

or anything like that used against these boys ?
A. There absolutely wasn’t, and besides that they were 

told that they were there to protect them and were going to 
see that they had a fair trial and for them to feel easy.

Q. Were they told that they would be given any kind of 
immunity from what they told or did?

A. No, sir.
Q. Were their statements free and voluntary on their 

part?
A. I don’t see why they shouldn’t be.
Q. Take Ed Brown; what connection did he say he had 

with the plot and the killing ?
[fol. 49] A. He was there and had a part in it, and he had 
a part in the plot. There wasn’t any motive but robbery, 
and Ed said they all agreed if they got any spoils they 
would divide them equally. He went on to tell how the thing 
happened, but there were conflicting statements in their 
personal examination to that which they made together.

Q. Confine yourself to the time all three were together.
A. He stated that they all agreed to commit the crime 

that afternoon, and they waited until the time of night they 
thought the opportune time to go and commit it. He said 
that they all went to the house. I think he possibly said the 
door wasn’t closed. It seemed that he was pretty familiar 
with the house. The two darkies, Shields and Ellington, 
went in a side entrance by a chimney, I think. He went



40

around and waited in the hall and met them there. You 
couldn’t tell just exactly what part he performed, hut he 
did admit that he struck him across the shoulders with a 
stick at some time. He admitted that he had a part in it 
and the other two went in a side room and came in there and 
struck him while he was in bed. He got up and made for 
this hall-way.

Q. That was Mr. Stewart that got up ?
A. Yes, sir.
Q. Did Ed Brown say where he hit him?
A. That was in this examination; that was the conflicting 

part.
Q. Just tell what they said when all were together.
A. He finally admitted that he struck him outside near 

the tool chest with a foot ax— a mad-ax he called it.
Q. Talking about the time you were all there together, 

what did Ed Brown say was done after Mr. Stewart was 
struck there in the hall?

A. He said he fell across the tool chest there, and they 
picked him up, and I don’t remember whether he said he 
unlocked the door where the seed were or some of the rest of 
them did it, and they put him in the seed room. They 
[fol. 50] thought that he was dead. Then I think Ed said 
somebody, just who I don’t remember, lit a lamp and went 
in the house and searched the house and then came back. 
I would like to say this. There was so much that I couldn’t 
remember when they were brought together, but they all 
agreed that all were there and worked together and had a 
part in it. Every one of them admitted the part that they 
took except Shields who stood out all the time that he didn’t 
bring the ax and didn’t hit him; the others said that he 
did. They all agreed except for a few details. Mr. Adcock 
questioned them as reasonably as he could for two hours 
and a half. In the main, that is all I heard, that they were 
the ones that did it and no one else. They were asked that 
question, and they said no one else was in it. They said 
there was no other motive except getting money.

Q. Did they say whether or not they intended to kill him 
when they went there ?

A. I understood they went there to kill him. They went 
armed; they didn’t deny that. Ed and this Ellington said 
Shields had an ax and one got a chisel; they had an ax, a 
mad-ax, a chisel and a stick. They said that was all they 
had.



41

Q. Now, after you had questioned these boys there, did 
they say anything about how they were feeling?

A. Well, when this Henry Shields said he didn’t have the 
ax there and didn’t strike him—he held out until the last on 
that. Brown and Ellington both told him: “ You know you 
did, boy.’ ’ He held out until the last that he didn’t have the 
ax there, and Brown said then: “ I didn’t tell the truth until 
I come back, but now I have and I feel better.”  He told 
Shields: “ Whether you tell it or not, it is going to be the 
same. ’ ’ This Ellington told him the same thing; he told him 
that he just as well make a full confession, but he said, he 
didn’t have the ax there and didn’t strike him.

Q. Did they say anything about feeling better?
A. Two of them did. Ed Brown also asked for a cigarette 

[fol. 51] and some of them gave it to him.
Mr. Clark: We are making the same objection to this tes- 

timony that we did to the others.
The Court: Overruled.
(Witness dismissed.)

The States rests.

E d B b o w n , one of the Defendants, after being duly sworn, 
testified as follows:

Direct examination.

By Mr. Clark:
Q. Your name is Ed Brown?
A. Yes, sir.
Q. Where do you live?
A. On Mr. Raymond’s place.
Q. What Mr. Raymond?
A. Mr. Raymond what got killed.
Q. Mr. Raymond Stewart?
A. Yes, sir.
Q. How old are you?
A. 30 years old, going on 31.
Q. Are you married?
A. Yes, sir.
Q. How many children have you?
A. Three.



42

Q. How old are they?
A. One is 5, the other 10 and the other 13.
Q. Where were you raised, in Kemper County?
A. Yes, sir. Way down there about the line.
Q. Is it in Alabama or Mississippi?
A. Alabama, Sumpter County.

[fol. 52] Q. You are charged here with having participated 
in the killing of Mr. Stewart last Friday night or Thursday 
night, you and Henry Shields and Yank Ellington. Do you 
remember when he was killed?

A. Yes, sir.
Q. Where were you that night?
A. At home.
Q. Did you help kill him?
A. No, sir.
Q. How long had you been living with Mr. Stewart?
A. Two years, going on three this year.
Q. When did you first hear about him being dead?
A. About 1:00 o ’clock.
Q. When was that?
A. Friday.
Q. On the day that he was supposed to have been killed 

that morning some time?
A. Yes, sir I guess so.
Q. Where were you when you heard about it?
A. I was over there coming from Dennis Cherry’s.
Q. How far is that from Mr. Stewart’s place?
A. Not far.
Q. Is it about a mile?
A. Just about a mile.
Q. When you heard about it, what did you do ?
A. I run over there; Mr. Williams was there when I got 

there.
Q. Who was that?
A. Mr. William Adams; I know he was there, and there 

was a lot more.
Q. What did you do on the day of the killing that night? 
A. I worked on the pasture.
Q. Who was with you there?
A. Me and Yank and Buddy Giles, Beth Shields and some 

more.
Q. Did you have anything against Mr. Stewart?
A. Not a thing at all.



43

[fol. 53] Q. Have you ever had any trouble with him at 
any time!

A. No, sir; he treated me nice, and I done the same thing.
Q. You heard Mr. Adcock and the Sheriff of Lauderdale 

County, Mr. Stevens, and Preacher Stevens testify about 
the confession you made in Meridian in the jail, saying that 
you participated in this killing; tell the jury whether or 
not you told the truth at that time.

A. No, sir I didn’t tell the truth.
Q. Why did you tell something that was not true!
A. Mr. Cliff called me out of the jail Sunday evening------
Q. Who did!
A. Mr. Cliff Dial. He told me to come on out here, that 

he had heard I told that I killed Mr. Raymond. I come out 
of the jail house and I said: “ I declare I didn’t kill Mr. 
Raymond.”  He said: “ Come on in here and pull your
clothes off; I am going to get you.”  I  said to the last that 
I didn’t kill him. There was two more fellows about like 
that there, and they was whipping me. They had me be­
hind across chairs kind of like that. I said I didn’t kill 
him, and they said put it on him again, and they hit so hard 
I had to say: “ Yes, sir.”  Mr. Cliff said: “ Give it to me, 
and I will get it. ”  He took it, and it had two buckles on the 
end. They stripped me naked and bent me over a chair, 
and I just had to say it ; I couldn’t help it.

Q. They whipped you hard there!
A. Yes, sir. I will show you. There are places all the 

way up there.
Q. Did you bleed any!
A. Did I bleed! I sure did.
Q. How did you tell them about the light and the lamp 

and such things as that!
A. They whipped me so hard, and I said I didn’t know 

anything about them, and they put me down the third trip 
and said: “ Ain’t that so !”  He said: “ What about the 
[fol. 54] lamp” !, and I said: “ I reckon Henry Shields done 
that.’ ’ They said: “ You know more than that.’ ’ They put 
me down again, and they whipped me so bad I couldn’t 
sleep that night.

Q. When did this whipping take place!
A. Sunday evening. They whipped that boy first, and 

then they told me to come on out.
Q. When Mr. Adcock and Mr. Stevens and his brother 

and some other gentlemen were talking to you on Monday 
night, did they threaten you on that night!



44

A. No, sir. I was seared because Mr. Cliff said I bad 
better tell it like I told him. I was scared.

Q. When did he tell you that?
A. When he was whipping me, and after I got up.
Q. He told you what ?
A. That I had better not get off what I had told him.
Q. That is the reason you told Mr. Adcock what you did?
A. Yes, sir, that is the reason. If you all could see the 

places, you would say a train didn’t move any lighter.
Q. You told these gentlemen what you told Mr. Cliff on 

Sunday wehn he was whipping you ?
A. Yes, sir.
Q. You tell the jury and Court that is the reason that 

you told it because of what Mr. Cliff Dial said to you?
A. Yes, sir.
Q. Were you telling the truth then?
A. I am telling the truth.
Q. I mean when you told Mr. Adcock and Mr. Stevens; 

was that the truth or a lie?
A. I was telling a story, because Mr. Cliff said I had 

better tell it like I told him Sunday evening.
Q. Where did you go on that Thursday night, if any­

where ?
A. Me and my wife just about sundown, it was getting 

dusk dark, and we met Mr. Stewart just below the barn, 
[fol. 55] He said: “ Ed, I started down to your house after 
my gun.”  I said: “ What is the matter now?”  and he 
said: “ I heard------

Mr. Stennis: We object to that.
The Court: Sustained.
Q. What did Mr. Stewart do there then?
A. I handed him the gun.
Q. What did he do?
A. He took the gun and went back to the house, and me 

and my old lady went to Fanny Livingston’s.
Q. How long did you stay there?
A. I never looked at the clock; we come home about 9.30 

or 10.00.
Q. What did you do then?
A. We roasted sweet potatoes and eat them, and me and 

her went to bed then.
Q. Did you stay there?



45

A. Yes, sir, until the lady cooked breakfast; the ground 
was too wer to get out.

Q. Did you generally go to Mr. Stewart’s house in the 
morning ?

A. The ground was too wet that day. I didn’t go unless 
it was to get the mules. He had told us not to plow no 
more land like we did last year, to wait until it got dry.

Q. Did anybody else come in your house that night?
A. Didn’t nobody come in.
Q. When were you arrested on this charge?
A. That same day.
Q. Who arrested you?
A. Mr. Cliff was there.
Q. You were there at the house?
A. Yes, sir.
Q. You helped them look around there?
A. Yes, sir.
Q. You tell the jury and the court that the reason you 

told what you did was because you were afraid of Mr. Cliff 
[fol. 56] Dial and the other people who whipped you on 
Sunday?

A. Yes, sir, that is how come I told it. They put me down 
three times. Two times I said: “ No, sir.”  Until the last 
time, I said, “ I ain’t never harmed Mr. Stewart in my life.”  
They said: “ G-et down again.”  He took the strop away 
from the little fellow and it looked like he was going to kill 
me, and I said: “ Yes, sir.”  He said: “ What about the 
lamp?”  I said: “ I don’t know.”  He said: “ Put him down 
again.” , and I said: “ Yes, sir.”  He was whipping me so 
hard I had to say “ yes, sir.”

Cross-examination.

By Mr. Stennis:
Q. You heard Mr. Adcock’s testimony?
A. Yes, sir.
Q. You heard about what the other two men said you 

told them?
A. Yes, sir.
Q. They told it right, didn’t they?
A. I told it because Mr. Dial had done beat me so.
Q. I koum that; I know you say that is why, but you did 

tell them just what they said?



46

A. Yes, sir. After lie got through beating me, he told me 
I better say what I said to him.

Q. But it is true that you told Mr. Adcock and these 
other gentlemen on Monday night just what they said you 
todl them?

A. Are you talking about when this man got through 
whipping me?

Q. No. On Monday night when Mr. Adcock and the two 
gentlemen? who were on the stand were there, you told 
them just what Mr. Adcock told here on the stand?

A. Yes, sir. I told them because I was scared.
Q. Mr. Adcock told a while ago just exactly what you 

told him in the jail there?
A. Yes, sir. The reason I did tell it was because Mr. 

Cliff had beat me so.
Q. And after you got through, you told Mr. Adcock that 

you felt better?
[fol. 57] A. Yes, sir, but a man will say anything when 
he is beat up like that.

Q. When Mr. Adcock first talked to you that night, you 
didn’t tell him all about it?

A. No, sir.
Q. He said a while ago that when he talked to you alone 

that night you wouldn’t tell it all, but when all three were 
together you told it every bit?

A. Mr. Cliff told me I better tell it.
Q. When you first talked to Mr. Adcock, you didn’t tell 

it all?
A. Yes, sir, I told him all I knowed.
Q. And when he got all three of you together, you told 

it all then?
A. All I knowed then.
Q. You knew what you were talking about, didn’t you?
A. No, sir.
Q. You just said that you told all vou knew about it
A. I was scared because Mr. Cliff had beat me so. '
Q. How did you know what to tell Mr. Adcock?
A. Because he told me I had better tell him the truth.
Q. And that was what you were telling him?

 ̂ sf ^  because Mr. Cliff Dial said I had better
tell that thing all the same way I told him.

Q. And Mr. Adcock told you you had better tell the 
truth?



47

A. Yes, sir.
Q. And you told him the truth?
A. I told it like I said just now.
Q. What you told him was the truth?
A. I had to tell it because I was afraid.
Q. Monday night down in the jail, when the other two 

boys were not there, you didn’t tell all of it then?
Mr. Clark: We object. He was just examined on the 

time when all three were present.
[fol. 58] Mr. Stennis: There was something said about 
the first examination. You have gone into the previous 
examination.

The Court: Overruled.
Q. When you first talked to Mr. Adcock in the jail Mon­

day night before they brought the other boys in there, you 
didn’t tell him all of it?

A. Yes, sir.
Q. You told him all you knew about it then?
A. Yes, sir.
Q. Everything you could remember about what happened, 

you told him?
A. Yes, sir.
Q. You told it the best that you could remember?
A. Yes, sir.
Q. Everything about the lamp chimney—you told that?
A. Yes, sir, the way they told me to tell it.
Q. You told him the^ way you went in the side door?
A. He made me tell all that.
Q. Who did?
A. Mr. Cliff, when he was whipping me.
Q. Did Mr. Cliff make you say that you had a foot-ax?
A. He said: “ What did you hit him with?” , and I said: 

‘ ‘Nothing.’ ’ He said: ‘ ‘What did you hit him with, or I will 
beat you to death.”  I said: “ A stick.”  He said: “ No” , 
and I said: “ A foot ax.”

Q. The night that Mr. Adcock was there, Mr. Dial wasn’t 
there ?

A. No, sir.
Q. You hadn’t seen him any more after he whipped you?
A. Yes, sir, but I don’t reckon he seen me.
Q. When I read that paper to you yesterday, you said 

that you killed him, didn’t you?



48

A. Yes, sir, but that was on account of that man.
Q. Didn’t you see Mr. Adcock this morning and tell him 

what you told in the jail the other night was the truth?
[fol. 59] A. I done that because Mr. Cliff said he would 
beat me, and I was scared.

Q. Aren’t you still scared of Mr. Cliff?
A. Yes, sir, but I am going to tell the truth; I ain’t never 

harmed him.
Q. That is what you told Mr. Adcock down there in the 

jail—that you were going to tell the truth?
A. Yes, sir, after he scared me; after Mr. Cliff scared me.
Q. And that is what you were telling him when you told 

how it happened?
A. No, sir. What I told them, he just made me do it. 

The jailer come up there and said: “ Did you deny it?” , 
and I said: “ No.”  He said if I had they would have got 
on me again.

Q. The only thing that Mr. Cliff told you was that you 
had to tell what part you took in it?

A. He told me I had to tell on Shields. He said Henry 
said that I was there.

Q. What else did he tell you?
A. That’s all.
Q. He didn’t tell you to tell on anybody else, did he?
A. Yes, sir, he told me Henry Shields had told it.
Q. He didn’t tell you to tell on anybody except Henry, 

did he ?
A. No, sir.
Q. And then you told Mr. Adcock that Yank had a part 

in it?
A. Yes, sir, but he had done told it on me.
Q. What reason do you give for telling Mr. Adcock that 

Yank had a part in it?
A. No, sir, I didn’t see Yank at all. I ain’t saw him at 

all since me and him was working together.
Q. Why did you tell Mr. Adcock that Yank was there?
A. I was just scared.
Q. Why did you pick Yank?
A. I was just scared.

[fol. 60] Q. You didn’t see Yank there?
A. Not until 1:00 o ’clock that Friday.
Q. Friday?
A. No, sir, it was Thursday.



49

Q. Were you and Yank working together that Thursday?
A- No, sir, he was on the pasture and I was on the gate.
Q. Where was Shields working that day?
A. I don’t know.
Q. Was he working on the fence there?
A. No, sir. Somebody said he was cutting wood.
Q. Did you see Henry Shields on Thursday?
A. No, sir.
Q. You didn’t see him that night anywehre?
A. No, sir, because I didn’t get out of the house.
Q. Mr. Adcock treated you nice that night down in the 

jail?
A. Yes, sir.
Q. He told you he Was going to protect you and do every­

thing he could for you?
A. Yes, sir.
Q. And he told you that he wanted you to tell the truth?
A. Yes, sir.
Q. He told you that you didn’t have to tell anything?
A. Yes, sir.
Q. You went right on then and told them what they say 

you told them?
A. Yes, sir, but I told that because I was scared.
Q. You knew when you were telling that, you were tell­

ing the truth ?
A. No, sir, I was telling a lie, boss, if you will mardon me 

saying that.
Q. They didn’t do anything to you that night, did they?
A. I had'to say it because the mand had done beat me 

so I was scared. I ain’t never harmed Mr. Stewart in my 
life.

Q. There were not any fellows present on Sunday night 
that were there on Monday night?
[fol. 61] A. I don’t know.

Q. Mr. Adcock and the others told you that you didn’t 
have anything to fear from them?

A. Yes, sir, but I was just scared. I am scared every 
night I have been here.

Q. They told you that they were going to protect you?
A. Yes, sir, but I was scared.
Q. Why did you plead guilty here in open court yester­

day?
4—6653



50

A. I was scared and didn’t know no better.
Q. The Court appointed lawyers for yon yesterday after­

noon?
A. Yes, sir but I told him I didn’t need none.
Q. You told the Court you didn’t think they would do 

any good?
A. I told him I didn’t think they would do no good be­

cause the man whipped us and told us we better stand on 
what we said.

Q. You talked to your lawyers yesterday afternoon?
A. In that room there, yes, sir.
Q. You talked to them again this morning?
A. Yes, sir.
Q. After you talked to them this morning you told Mr. 

Adcock that all that you told him in jail on Monday was so ?
A. What I told him this morning, I didn’t know what I 

was doing then.
Q. Do you know what you are doing now?
A. Sir?
Q. Do you know now?
A. I don’t know, but I will die on this, boss, I ain’t never 

harmed Mr. Raymond.
Q. After you talked to them yesterday afternoon and 

this morning, you told Mr. Adcock here today that what 
you told him in the jail in Meridian was so?

A. I was just scared.
Q. Did you tell him that was true?
A. Yes, sir.

[fol. 62] Q. Now, explain why you did that.
A. It was right up where those beds are at, wasn’t it, 

Mr. Adcock?
Q. It was up-stairs here?
A. Yes, sir.
Q. Who else was there at that time ?
A. I don’t know the man.
Q. Mr. Adcock hadn’t ever done anything to you?
A. No, sir.
Q. One of these boys here told Mr. Adcock the same 

thing this afternoon, didn’t he?
Mr. Clark: We object to that.
The Court: Sustained.
Q. You were not afraid of Mr. Adcock when you were 

up here?



51
A. No, sir, I wasn’t scared but let me tell you this. You 

know white people pull together and negroes won’t. I  
didn’t know what Mr. Adcock would do, but I am going to 
die on the truth—I did not harm Mr. Raymond.

Q. You were not saying that a few hours ago, were you?
A. The man whipped me do I had to say it. I ain’t never 

harmed Mr. Raymond. There ain’t no need of saying I 
done it when I didn’t.

Q. You told Mr. Adcock that you did do it?
A. Yes, sir.
Q. And now you say you didn’t?
A. If I die right now, I am going to say it: I ain’t never 

harmed Mr. Raymond in my life. If they want to they can 
kill me because I said that, but I ain’t never harmed Mr. 
Raymond in my life.

Q. When you talked to Mr. Adcock up here this morning, 
you said that you had denied it this morning because your 
wife was present?

A. Yes, sir.
Q. Didn’t you tell him that you denied it this morning 

because your wife was present and you didn’t want to 
admit it before her?

A. I am not disputing his word. I spoke like this to Mr. 
ffol. 63] Adcock: “ I am going to tell the truth or die------”

Q. Just answer my question.
A. I said: “ Nothing I can do is going to help now, I don’t 

reckon.”  I just said that; ain’t that the way I said it, Mr. 
Adcock? I just said it because my old lady said it like that.

Q. You immediately told him that what you said in Me­
ridian was the truth?

A. No, sir, it wasn’t the truth.
Q. But you told Mr. Adcock that it was ?
A. Yes, sir, but I ain’t never harmed Mr. Adcock in my 

life.
Q. You say that you didn’t go to Mr. Stewart’s house in 

the morning unless it was dry?
A. No, sir.
Q. Did it rain that day?
A. It rained that week.
Q. About what time did you get through with the fence 

that Thursday?
A. I don’t know.
Q. Was it before sun down?



52

A. Yes, sir.
Q. Does this boy Shields live where you do?
A. He lives on the other side.
Q. About how far from you?
A. About a mile or a little better.
Q. Where did Yank live?
A. About a good mile from his house and about a mile 

and a half from mine.
Q. You quit work that afternoon a little while before 

sun-down?
A. Yes, sir. I carried the wagon and mules to the house 

and sent the mules off by a boy.
Q. Whose ax is that?
A. Shields’ ax.
Q. It has a split handle close to the ax part?
A. Yes, sir.

[fol. 64] Q. And it has black marks on the handle?
A. Yes, sir.
Q. When was the last time that you had these keys?
A. He didn’t let nobody tote them.
Q. How do you know whose keys they are?
A. I have seen Mr. Eaymond with them.
Q. Which one of these keys fits the tool chest?
A. I don’t know; I ain’t never been in it in my life.
Q. Which one fits the safe?
A. I don’t know.
Q. We want to get in the safe.
A. I don’t know, boss.
Q. What kind of knife did Mr. Eaymond have ?
A. He used to tote one with three blades in it.
Q. Mr. Adcock showed you that knife?
Q. Yes, sir, I told him I knowed it.
Q. You told him about the knife and a penny?
A. No, sir. I didn’t tell that. He misunderstood me on 

that. I saw Mr. Eaymond with the knife lots of times, but 
I didn’t see him that day up at the house with it.

Q. Who was it that told the officers, Mr. Adcock and the 
others, that there wasn’t anything in Mr. Eaymond’s pocket 
but a knife and a penny?

A. That’s what I said—that’s what they all said, but I 
hadn’t been in there.

Q. Then how did you know what was in there.
A. That’s what the boys said.



53

Q. Who was the first one that spoke about that?
A. One of them spoke about it.
Q. One of these boys here?
A. No, sir, some of the other boys in there.
Q. Do you mean colored boys or officers?
A. Some colored men there at the house.

[fol. 65] Q. When did you hear that?
A. That day.
Q. Before they arrested you?
A. Yes, sir.
Q. They arrested you not long after they found the body?
A. Yes, sir. I come up there and in about 15 minutes or 

20 minutes Mr. Cliff throwed a pump gun on me.
Q. Was that at the house?
A. Yes, sir, I was out from the house a piece.
Q. Back to this Monday night, Mr. Adcock didn’t threaten 

you, did he.
A. No, sir, but I was scared all right.
Q. He told you that you didn’t have to talk?
A. Yes, sir, but I knowed what the jailer said; he said 

they would whip me again.
Q. You told those gentlemen the best you could just how 

it happened.
A. I had to. I haven’t had my hands on Mr. Raymond.
Q. Tell us again why you told Mr. Adcock up here today 

that it was the truth what you said in Meridian.
A. I told him just like this. My wife said something or 

other about it won’t do any good no how. After that, I said 
I didn’t kill him. I thought I just as well go ahead and tell 
the truth, because I will die any way. I didn’t kill Mr. Ray­
mond, and I didn’t help kill him.

Q. Mr. Stewart’s shot gun was down at your house?
A. Yes, sir, he let me keep it all the time.
Q. What kind of gun is that?
A. L. C. Smith.
Q. How long have you had it?
A. About 2 years.
Q. You have been keeping it all that time?
A. Yes, sir, he told me to hunt with it.
Q. Who furnished the shells for it?

[fol. 66] A. I furnished them. He would give me shells 
some times to kill squirrels with for him.

Q- You also kept Mr. Stewart’s pistol?



54

A. Yes, sir, but I hadn’t had it long, about a month after 
somebody stole his 32 Special.

Q. You told Mr. Adcock that you had had it about two 
months.

A. Yes, sir.
Q. That left Mr. Stewart without a weapon at all?
A. I told him he could get it when he got ready.
Q. Now, about dinner time when Mr. Adcock carried you 

up here where the beds are, didn’t you tell him that you 
wanted to speak to him for a minute?

A. Yes, sir, I spoke to him.
Q. Didn’t you tell him there then that you had said this 

morning in the presence of your wife that you were not 
guilty, but you said that was because your wife was there 
and she had said that you were at home ?

A. Yes, sir, I was at home.
Q. Didn’t you tell Mr. Adcock up here where the beds are 

after you had called him off ?
A. Me and that boy was there.
Q. Didn’t you tell him that at about dinner time?
A. Yes, sir.
Q. You told him this, that this morning you had said you 

didn’t have anything to do with it, that you were at home.
A. Yes, sir, I was at home.
Q, But that the reason you said that was that your wives 

were there and they said that, and that you were going to 
agree with them, but that the truth was what you had told 
in the Meridian jail?

A. No, sir. I told him that tale because the man had beat 
me so.

Q. You told Mr. Adcock in the dormitory up here that 
you had told him the truth in Meridian?
[fol. 67] A. I told him because the man beat me so.

Q. Why did you call Mr. Adcock off and tell him this 
additional tale?

A. Because I was scared I was going to get another beat­
ing.

Q. You didn’t get one yesterday?
A. No, sir.
Q. The court gave you two lawyers yesterday?
A. Yes, sir.
Q. And two more this morning?
A. Yes, sir.



55

Q. That makes four?
A. Yes, sir.
Q. And you still called Mr. Adcock off and told him what 

you said in Meridian because you were scared was true ?
A. Yes, sir. I will die on that, boss; I didn’t touch Mr. 

Raymond.
Q. You say that you are afraid of Mr. Dial?
A. Yes, sir.
Q. Which do you think would be the worse, to have Mr. 

Dial there and be afraid of him or confess killing Mr. 
Stewart ?

A. I didn’t kill Mr. Stewart.
Q. You knew that you were confessing to killing him?
A. No, sir.
Q. You knew what it meant when you said you helped kill 

him?
A. I was telling a tale when I spoke that.
Q. Didn’t you know it would hang you when yon told that 

you killed him ?
A. Yes, sir.
Q. But you went on and told that Monday night?
A. Yes, sir, I was scared because he beat me so.
Q. And you told it again today?
A. I was still scared.
Q. Are you scared now?
A. Yes, sir.

[fol. 68] Redirect examination.
By Mr. Clark:

Q. You say the jailer in Meridian told you the man would 
get you again?

A. Yes, sir. The boy that works there come up there, and 
I told him I didn’t touch the man, and I would die on that.

Q. Mr. McGee, the jailer, told you they would get you 
again if you denied it?

A. Yes, sir, he brought the boy up there to see if I denied 
it.

Q. Where was Mr. McGee when they whipped you that 
Sunday afternoon?

A. I didn’t see him to know him when they whipped me. 
Q. Where did they have you?
A. In that room where they have all those guns setting 

up there.



56

Q. Who was in there!
A. Mr. Burt.
Q. Who?
A. Mr. Guy Jack and a little fellow; his home is out of 

Scooba. I know him when I see him, and Mr. Buddy Gilbert 
was there, Dr. Gilbert’s some. The other two men, I don’t 
know them.

Q. The sheriff wasn’t there, and Mr. Adcock wasn’t 
there ?

A. I didn’t see Mr. Adcock; the way they was hitting, I 
wouldn’t have knowed him.

Q. The gentlemen that testified here, the Sheriff of Lau­
derdale County, wasn’t there?

A. I don’t know, boss.
(Witness dismissed.)

Henry Shields, a defendant, after being duly sworn, tes­
tified as follows:

Direct examination.

By Mr. Daws:
Q. How old are you?
A. 27.

[fol. 69] Q. Are you married?
A. Yes, sir.
Q. Where were you raised?
A. I was raised at Mr. Howard King’s place.
Q. Have you been there all your life ?
A. No, sir, I stayed with a lot of people, Mr. Henry 

Lavender and Mr. Fred.
Q. Do you remember the night or day it is said that Mr. 

Stewart was killed?
A. Yes, sir.
Q. What day of the week was that?
A. Friday, I heard; it was Friday when they found him 

dead.
Q. What did you do that day?
A. I cut wood all day; me and Miss Pinky Ethridge’s boy. 
Q. How far is that from Mr. Stewart’s home?
A. About three-fourths of a mile.
Q. What time of the day did you quit work?



57

A. Are you talking about that evening?
Q. Yes.
A. I quit about a half hour by the sun.
Q. I will ask you to state to the court and jury if you saw 

Yank and this other defendant at any time that day.
A. No, sir, I didn’t see them at no time that day.
Q. Did you see them any time that night?
A. No, sir, I sure didn’t.
Q. What did you do late that evening after you quit work?
A. I went on home and I met Eddie Giles and Campbell 

at my house and some others was there. Me and Holley 
played checks, and after while my brother come and we 
played checks until 9 :00 or 10:00.

Q. What di- you do then?
A. I went to bed after they left.
Q. Did you get up that night ?
A. Yes, sir.

[fob 70] Q. Tell why you got up and left home that night.
A. The reason I left home was because of my woman. 

I had been working hard for her. She got up and went to 
the front door and looked out and came back and put the 
fire up and then come to my bed to see if I was asleep. I was 
looking at her and just laid there. She went back to her bed 
and reached up and got her jacket and run out the door. I 
got up, and when I got up she was going around the house. 
The old door is hard to come unlatched. I was going on 
around the house, and she tried to get back from around 
the corner of the house before I could get out the door. I 
met her and heard somebody out by the hen house, and this 
here Bob Cross run out from there and around my house 
and through my yard.

Q. I will ask you whether there was a fuss at your house 
that night?

A. Yes, sir. I got my ax and hit at her. I didn’t hit her, 
but I hit at her and I thank God I didn’t hit her.

Q. What happened then?
A. I went to Miss Pinky Ethridge’s and called Mr. James 

out and told him I was going to leave because I was being 
mistreated, and I said------

Mr. Stennis: We object to that.
The Court: Sustained.
Q. What did you do? Don’t tell what you told them.



58

A. I called him out and told him what I had been into and 
and I was going to leave to keep from getting into trouble. 
When I first moved to the place, Mr. Lundy Temple told 
me------

Mr. Stennis: We object.
Q. What did you do there, if anything?
A. I didn’t try to do anything.
Q. Where did you go then?
A. I went to my mother-in-law’s; I left there and went 

to Oscar’s to spend the night. I left there about 5 :00 o ’clock 
and went on to Scooba. I first went to Mr. James Boyd’s, 
[fol. 71] I met this boy and he said Mr. Boyd was going to 
Electric Mills and that Daisy was going with him. I turned 
in at his house and asked this girl if I could go, and she said 
he had a load. I went on to Mr. Temple’s and his boy and 
Mr. Jim Hill was fixing on the car, and I told them what I 
was leaving about and he said not to leave. I said: “ No, I 
have been mistreated, and I want to leave the country. ’ ’

Q. Where did you go then?
A. I come on to Electric Mills and caught a beer truck 

and come on down to Meridian and got there about 10:00 
o ’clock. I found a fellow there at the house where I was 
going to. I got to his house about 11:00 o ’clock.

Q. What day was that?
A. Thursday.
Q. Was it Thursday or Friday?
A. Friday.
Q. What did you do then?
A. When I got to the house, I set down and rested and 

walked around a while. I went to my brother’s, and one of 
the boys works for a Jew, I think. I think he is a Jew or a 
gypsy. I told him I----- -

Mr. Stennis: We object.
The Court: Sustained.
Q. Were you arrested in Meridian?
A. Yes, sir.
Q. When were you arrested?
A. I was arrested Saturday evening, I guess about 3 :00 

o ’clock.
Q. Were you put in jail?
A. Yes, sir.



59

Q. Were you in jail on Sunday?
A. Yes, sir.
Q. Who came to see you there on Sunday?
A. A lot of people come there?
Q. Did you have any trouble there Sunday evening? 

[fol. 72] A. Yes, sir.
Q. What kind?
A. A whipping spell; Mr. Cliff tore me up.
Q. Tell us about that.
A. Yes, sir. Let me start back at the first where they 

arrested me. Mr. Cliff Dial and Mr. Poole, that big fellow 
there, and another fellow come there, Mr. Cliff and Mr. 
Poole come in the front door and this other fellow come in 
on the back, and they asked me what I was doing down here. 
I said that me and my old lady got into it. He said: “ No, 
you didn’t. You helped kill Mr. Stewart,”  and I said: “ No, 
sir.”  I stuck to it as long as Mr. Poole was with me. Mr. 
Poole carried me on to jail and give me to the jailer and he 
left and Mr. Cliff Dial and them come back that evening 
and whipped me. First I tried to tell the truth, but he 
wouldn’t let me. He said: “ No, you ain’t told the truth,”  
and I tried to stick to it. He whipped me so hard I had to 
tell him something. He said: “ Ed Brown done told that 
you helped kill Mr. Raymond.”  I said: “ No, if there is a 
God in Heaven, I ain’t had nothing against Mr. Raymond. 
He could be at home walking around as far as I know.”

Q. Who was present when you and Mr. Cliff tangled up?
A. Mr. Guy Jack and Mr. Howard Nicholson and another 

tall fellow. I seen him here today, but didn’t either one hit 
me but Mr. Cliff.

Q. When you told them that you took part in this thing, 
I will ask you to state whether or not you told the truth.

A. No, sir. I was made to tell what I did.
Q. When did you see Mr. Adcock down there ?
A. I believe that was Sunday night.
Q. Was it Sunday or Monday night?
A. I think it was Monday night.
Q. Did you make a statement to Mr. Adcock?
A. Yes, sir.

ffol. 73] Q. You heard him testify here?
A. Yes, sir.
Q. Did you make the statement to him that he told the 

jury?



60

A. Yes, sir.
Q. Why did you make it?
A. Mr. Cliff put me across a chair three times. He put 

me across a chair and whipped me with a strop and said it 
was hurting. I said: “ Mr. Cliff, I will tell the truth. I 
wasn’t in it.”  He said: “ You ain’t telling the truth.”  He 
put me down the second time, and I tried to tell him the 
same thing, and Mr. Guy Jack said: “ He is telling the 
truth,”  and Mr. Cliff said I wasn’t. That’s the reason I 
told what I did.

Q. You told Mr. Adcock the same story the next day?
A. Yes, sir.
Q. Why was that?
A. Mr. Cliff told me if I didn’t tell Mr. Adcock and the 

other men he was going to whip me again. He said: 
“ Henry, if you don’t tell them folks the same thing you 
told us, I will get meat again. ’ ’ I had rather you all would 
kill me than let Mr. Cliff get me again.

Q. Is that your ax over there ?
A. Yes, sir.
Q. Those overalls or jumper, is that yours ?
A. Yes, sir, that is my jumper.
Q. Are those your overalls?
A. Yes, sir.
Q. And that is your jumper?
A. Yes, sir; Mr. Lundy Temple give it to me.
Q. What are those splotches of blood on it?
A. My mother-in-law give my wife some meat, and she 

wrapped it in that old jumper there.
Q. Tell the court whether or not you had that jumper on 

that particular day that Mr. Stuart was killed.
[fol. 74] A. No, sir, I ain’t had that jumper on in a good 
while, because it ain’t worth wearing. This blood on my 
ax, I don’t know about it. Some fellow might have put it 
on there. I don’t know anything about Mr. Stewart’s death.

Q. I will ask you to state to the court and jury if you 
had a meeting of any kind with Ed and Yank on the day 
prior to the killing of Mr. Stewart ?

A. No, sir.
Q. State whether or not it is a fact that you met them 

down there somewhere by a gate close to Mr. Stewart’s.
A. No, sir, I ain’t met them nowhere.
Q. Did you have anything against Mr. Stewart?



61

A. Not a thing.
Q. Did you live on his place?
A. No, sir. I lived on Mr. Earnest Temple’s place.
Q. Tell the court whether or not you promised Ed and 

Yank to help in the killing of Mr. Stewart for $12.00 each. 
State whether or not these men offered you any money to 
help kill Mr. Stewart.

A. No, sir, they ain’t offered me a penny. I told Mr. Ad­
cock they offered me money. Mr. Cliff asked what the boys 
offered me and I had to tell him that, and he asked who hit 
Mr. Stewart with the foot-ax, and I had to tell that and I 
didn’t know a thing about it. I couldn’t hardly tell what 
room we went in because I don’t go around Mr. Stewart’s.

Q. I will ask you to tell the court whether you ever ad­
mitted to anyone that you struck Mr. Stewart.

A. No, sir, I ain’t hit him a lick. If I ever hit him, I hit 
you, and you know I ain’t hit you.

Q. Mr. Adcock and Mr. Stevens and the other man that 
yon made the statement to on Monday evening, did they 
threaten you?

A. No, sir, not a bit.
Q. You made the statement to them just like they say?
A. Yes, sir.

ffol. 75] Q. Tell just why you made that statement.
A. The reason I told Mr. Adcock that was Mr. Cliff told 

me if I didn’t tell them the same thing he was going to beat 
me again, and I tried to stick to it. He ain’t told a thing I 
didn’t say to him, but it wasn’t so.

Q. Why did you tell it then?
A. I was made to tell it. If somebody else had come and 

arrested me and not whipped me and scared me up so, I 
would have stuck to what I said. I tried to tell the truth 
when they first arrested me, but they wouldn’t let me.

Q. Did he beat the blood out of you?
A. Yes, sir. The blood ran through my pants, and I had 

them washed and then I commenced bleeding again. I didn’t 
bleed much more, and I didn’t wash them any more.

Cross-examination.

By Mr. Stennis:
Q. When you talked to Mr. Adcock he told you that you 

didn’t have to talk?



62

A. Yes, sir.
Q, He told you that you didn’t have to tell a thing?
A. Yes, sir.
Q. Mr. Dial wasn’t there then?
A. No, sir.
Q. He told you that he wanted you to tell the truth?
A. Yes, sir.
Q. He told you he wanted you to make a free statement? 
A. Yes, sir.
Q. He wasn’t forcing you to say anything?
A. No, sir.
Q. He told you that you were safe from danger then?
A. Yes, sir.
Q. And that he was going to protect you?
A. Yes, sir.

[fol. 76] Q. Still you went on and told what he said?
A. Yes, sir.
Q. And you were telling the truth about it?
A. Yes, sir.
Q. What you told Mr. Adcock that Monday night was so? 
A. No, sir, it wasn’t.
Q. What do you mean by saying it was and it wasn’t? 
A. What are you speaking about?
Q. Mr. Adcock told you that he was going to protect 

you?
A. Yes, sir.
Q. And he wasn’t going to bother you?
A. Yes, sir.
Q. Mr. Stevens told you the same thing?
A. Yes, sir.
Q. And you believed them?
A. Yes, sir.
Q. You went right on and talked to them?
A. Yes, sir.
Q. You trusted them?
A. Yes, sir.
Q. You told them the truth, didn’t you?
A. Yes, sir.
Q. What about that ax? Do you say you hit your wife 

and gut that, blood on your ax?
A. I won’t say about that.
Q. Who was that you say you shot? Did you say Bob 

Cross?
A. No, sir. I didn’t shoot him.



63

Q. You told Mr. Daws you shot him?
A. No, sir.
Q. What was it you told him?
A. I told him I had had trouble with him.
Q. And you told him that you shot him ?
A. No, sir.

[fol. 77] Q. Did you have a brother in Meridian?
A. Yes, sir.
Q. How long had you been there when you were ar­

rested?
A. I got there Friday and stayed there Friday night 

but never did go to his house until the next morning.
Q. You never did get there?
A. Yes, sir, Saturday morning, but I didn’t see him.
Q. That was where you were arrested?
A. No, sir, it was at another girl’s house in a little place 

called Drinkwater.
Q. Mr. Dial was one of those who arrested you?
A. Yes, sir.
Q. How long did you say it had been since you wore that 

jumper?
A. Ever since last year.
Q. Who was it that sent you meat wrapped in it?
A. My mother-in-law.
Q. What did you get from her?;
A. The head and a piece of liver and back bone.
Q. How long was that before the killing?
A. You know when people kill hogs in the winter.
Q. That jumper had been laying in your kitchen ever 

since?
A. Yes, sir; it wasn’t any good.
Q. What did you do on Thursday?
A. I cut wood all day long.
Q. What time did you stop cutting?
A. A little before sundown.
Q. And then you went home?
A. Yes, sir.
Q. How far do you live from Ed Brown?
A. Just about a good mile.
Q. How far did you live from Mr. Raymond Stewart? 
A. About three-quarters of a mile.
Q. You stopped cutting wood before sundown last Thurs­

day?



64

[fol. 78] A. Yes, sir.
Q. Did you have that ax there?
A. Yes, sir.
Q. You carried it home with you that day?
A. Yes, sir.
Q. That is the ax you used on your wife that night?
A. Yes, sir.
Q. Where did you leave it lying after you used it that 

night ?
A. I left home, and she had the ax.
Q. I asked you where you left it?
A. She had it.
Q. I thought you said you hit her with it.
A. She grabbed hold of it. We had a tussle, and she 

had the baby in her arms.
Q. She was holding the baby in one arm and grabbed 

the ax with the other ?
A. Yes, sir.
Q. You were not trying to hit her after all?
A. I wasn’t anxious to ; I was mad.
Q, You didn’t have a fuss with her that night?
A. No, sir.
Q. You didn’t have a falling out with her that night?
A. Yes, sir.
Q. How long had it been since you had one before then?
A. It has been about a year. It was about a year before 

when we moved down from the prairie. That boy had 
been troubling me up there, and I moved to get away from 
him.

Q. Where did you move from?
A. I was up there on Mr. Joe Cremmer’s place on the 

prairie.
Q. This $12.00 proposition that you told Mr. Adcock 

about that you were to get from, each one of these boys?
A. Yes, sir.
Q. You never did get anything from them ?

[fol. 79] A. No, sir, I didn’t get nothing.
Q. They didn’t find anything there?
A. I don’t know.
Q. They told you they didn’t find any money there?
A. No, sir.
Q. Do you think that they found any?



65

A. Well, boss, I will tell the truth, just like I first started 
to tell it. I wasn’t there with them boys.

Q. They have told you that they killed Mr. Stewart!
A. No, sir.
Q. They said that you were present there, didn’t they! 
A. No, sir.
Q. You never have heard them say that!
A. No, sir.
Q. Didn’t they say, Henry, on Monday night, didn’t 

you hear them say you helped?
A. Yes, sir, I sure did.
Q. Then you have heard them say it?
A. I thought you was talking about they told me alone. 
Q. They claim they didn’t get any money; what about 

that!
A. I wasn’t with them. I will die with that.
Q. You told Mr. Adcock all that on Monday night?
A. Yes, sir.
Q. And you came up here yesterday and didn’t anybody 

do anything to you?
A. No, sir.
Q. Mr. Adcock told you in Meridian he wouldn’t let any­

body bother you?
A. Yes, sir.
Q. He told you that that night before he talked to you? 
A. Yes, sir.
Q. You did the best that you could to tell him the truth? 
A. Yes, sir.

[fol. 80] Q. You stand on that now, what you told Mr. 
Adcock Monday night?

A. No, sir; I done got off of that now.
Q. Why did you change?
A. What I was telling Mr. Adcock, I was made to tell it. 
Q. Who made you?
A. Mr. Cliff Dial.
Q. He wasn’t there on Monday night?
A. No, sir.
Q. Mr. Adcock talked to you that night?
A. Yes, sir.
Q. He told you that anybody wasn’t going to hurt you? 
A. Yes, sir.

5—6653



66

Q. You believed him?
A. Yes, sir.
Q. You just went on and told them the truth?
A. Yes, sir.

Redirect examination.

By Mr. Daws:
Q. When you say that you told the truth, do you mean 

to say you were telling the truth when you told that you 
participated in killing Mr. Stewart?

A. No, sir. I wasn’t telling the truth then. I don’t know 
nothing about it. I don’t know how come they put me 
in it, because I ain’t never harmed Mr. Raymond, and he 
ain’t never harmed me.

Q. Now, as I understand you, what you told Mr. Adcock 
wasn’t true?

A. Yes, sir, that’s right.
Q. You told Mr. Adcock just what he says: you told him?
A. Yes, sir.
Q. You told it because of the beating that you received?
A. Yes, sir.
(Witness dismissed.)

[fob 81] Yaxk Ellington, a defendant, after being duly 
sworn, testified as follows:

Direct examination.

By Mr. Clark:
Q. Where do you live?
A, On Raymond Stewart’s place.
Q. Raymond Stewart or Mr. Raymond Stewart?
A. Mr. Raymond Stewart.
Q. What part of the County is that?
A. Kemper.
Q. In the eastern part of the County?
A. Yes, sir.
Q. How far is it from the line?
A. About two miles, I guess.
Q. How old are you?



67

A. Twenty.
Q. Are you married?
A. Yes, sir.
Q. How many children do you have?
A. Two.
Q. How old are they?
A. One girl two years old and a six months old baby. 
Q. Where were you born and raised?
A. I was raised in Alabama.
Q. In what County.
A. In Noxubee County, across the line in Alabama.
Q. How far is that from where you live now?
A. It is about three miles.
Q. How long have you been living on Mr. Stewart’s 

place ? '
A. About two years.
Q. Did you and Mr. Stewart have a falling out?
A No, sir, none at all.
Q. About how far did you live from his house?
A. About a mile.

[fol. 82] Q. How often did you go to his house?
A. Just now and then.
Q. How often?
A. I didn’t go often.
Q. About how often?
A. I go about once a week.
Q. You farmed there, didn’t you?
A. Yes, sir.
Q. Where did you keep the mules that you plowed?
A. At my house.
Q. Do you remember when Mr. Stewart was killed?
A. Yes, sir.
Q. When was that?
A. It was on a Thursday.
Q. Last Thursday?
A. Yes, sir.
Q. Sometime last Thursday night?
A. Yes, sir..
Q. That was a week ago today?
A. Yes, sir.
Q. Where were you on that night?
A. At home in bed with my wife.
Q. Did you have anything to do with that killing?



68

A. No, sir.
Q. When did you first hear about it?
A. That Friday after I come out of the woods from 

loading poles.
Q. What time was that?
A. About 12:00 o ’clock.
Q. What did you do when you heard about it ?
A. I went up there. Mr. Williams’ son asked me to 

come up there.
Q. What did you do when you got there.
A. I didn’t do anything but set down.
Q. Who all did you see there ?

[fol. 83] A. There was a heap more besides me. There 
was Ellis Lee and a Simmons boy and some other boys. 

Q. They are colored folks.
A. Yes, sir.
Q. Were there any white folks there?
A. There wasn’t anybody but Mr. Williams.
Q. Did you go in the house and look at Mr. Stewart? 
A. No, sir.
Q. You just sat down there?
A. Yes, sir, out doors on a log.
Q. On Thursday, the day that it happened that night, 

what did you do ?
A. I worked on the pasture that Thursday.
Q. Who was with you there ?
A. Me and Ed Brown, Beth Shields and some others.
Q. Did you see Ed Brown that day?
A. Yes, sir, him and Mr. Raymond was fixing the gates. 
Q. I thought you said he was working on the pasture. 
A. No, sir. They was at the corner of the pasture, and 

after they got through with that, him and Ed went to 
building on the gates.

Q. Did you see Henry Shields that day?
A. No, sir.
Q. Did you see him that night?
A. No, sir.
Q. Did you see Ed Brown that night?
A. No, sir.
Q. You say that you stayed at home that night?
A. Yes, sir.
Q. Who was there at your house?
A. I stayed at home in bed with my wife.



69
Q. Who was there besides your wife and children?
A. My mother-in-law and them.
Q. You are charged here with taking part in the killing

of Mr. Raymond------
[fol. 84] A. No, sir.

Q. I say you are; charged with it; you are indicted along 
with these other two boys here.

A. Yes, sir.
Q. Did you help kill him?
A. No, sir, I didn’t help; I didn’t know anything about 

he was dead.
Q. When were you arrested?
A. Mr. Martin and them come and got me that night I 

was at home.
Q. What night was that?
A. Friday night they come and got me out of bed and 

carried me to the house.
Q. What house?
A. Mr. Raymond’s. They tied me up there with my 

hands together that way to a tree and whipped me.
Q. Who tied you?
A. Mr. Martin.
Q. Who was there in the crowd?
A. Mr. Martin and his boys and Mr. Hal Byrd and Mr. 

Cliff.
Q. Mr. Cliff Dial?
A. Yes, sir.
Q. What did they do after they tied you?
A. They whipped me good.
Q. Was that all?
A. They hung me twice; they pulled me up to a limb 

twice.
Q. What is the mark on your neck?
A. That’s where they pulled me up to the limb twice. 
Q. That was done with a rope?
A. Yes, sir.
Q. They pulled you up twice on a limb?
A. Yes, sir.
Q. Did it hurt you?

[fol. 85] A. Yes, sir.
Q. When they let you down, could you stand up?
A. Yes, sir.
Q. How long did they keep you swinging up there?
A. Not so long.



70

Q. Did you ever tell them you knew anything about it 
that night?

A. No, sir, I didn’t tell them nothing.
Q. What did they do then?
A. They turned me loose and told me to go home, and I 

just could get home.
Q. What did you do then?
A. I got in bed, and my wife rubbed me.
Q. How long did you stay there ?
A. Until Saturday morning. Then I went to my father- 

in-law’s.
Q. Who carried you to Meridian?
A. Mr. Cliff and Mr. Bussell.
Q. Mr. Bussell who?
A. Mr. Bussell what stayed on that place—Mr. Bussell 

Dudley.
Q. What time did they take you to Meridian?
A. I don’t know exactly what time, but it was pretty 

early.
Q. Was it Saturday?
A. Yes, sir.
Q. After dinner or before?
A. Before dinner, I think.
Q. Which way did they carry you?
A. Through Gainesville.
Q. Is that the nearest way to Meridian?
A. Yes, sir.
Q. What did they tell you they were taking you that 

way for ?
A. For safe-keeping.
Q. Did anybody bother you on the way?
A. After we got on the other side of Livingston, they 

took me out and whipped me again and told me tell what 
I knowed about it.
[fol. 86] Q. Who did?

A. Mr. Cliff.
Q. What did you tell him?
A. I had to tell him. He asked who had the chisel, and 

he said I had it. I told him I didn’t, and he kept on beat­
ing me until I had to say I had it.

Q. What else did you tell? Did you tell about Ed 
Brown and Henry Shields?

A. Yes, sir.



Q. Why did you tell that? Did you tell it because he was 
whipping you?

Mr. Stennis: We object to that.
Q. Tell why you told that?
A. Because Mr. Cliff was beating me so hard I had to 

tell it.
Q. Did you tell him the truth or a lie?
A. I told a story because I didn’t know nothing about 

Mr. Baymond’s death.
Q. What time did you get to Meridian?
A. I don’t know exactly what time.
Q. Who do you reckon does know?
A. I guess he does. It was before sundown.
Q. On Saturday?
A. Yes, sir.
Q. Did you ever get any more whippings after that?
A. I didn’t get any more then.
Q. You didn’t get any more at all?
A. No, sir.
Q. You made your confession before you got to Me­

ridian?
A. Yes, sir; he made me tell it.
Q. Were you there Sunday when Ed and Henry got 

their floggings ?
A. I think I was there, but I was up stairs.
Q. You didn’t see that?
A. No, sir.

[fol. 87] Q. On Monday night, Mr. Adcock and Mr. Stev­
ens, the Sheriff of Lauderdale County, and his brother and 
several others came in there and you talked to them?

A. Yes, sir.
Q. Did they threaten you in any way?
A. No, sir.
Q. They treated you nice?
A. Yes, sir.
Q. What did they say to you?
A. They asked me what did I do, and I was scared and 

went on and told about us killing Mr. Baymond.
Q. Did you tell it like Mr. Adcock and Mr. Stevens said? 
A. Yes, sir, I told it that way.
Q. Was it true or not?
A. No, sir, that was a story.

73



72

Q. They told you that they were not going to whip you! 
A. Yes, sir, but I wTas scared.
Q. What had Mr. Cliff told you!
A. He said if I didn’t tell him the same thing I told him, 

he was going to get on me again.
Q. And you did tell what they said you did!
A. Yes, sir.
Q. But you say that it was not true!
A. No, sir, it ain’t true.
Q. Did they whip you pretty bad!
A. Yes, sir; this side is swollen as tight as I don’t know 

what.
Q. Did they get any blood!
A. Yes, sir; I have got a bandage on it now.

Cross-examination.

By Mr. Stennis:
Q. Now, Mr. Raymond Stewart got the wrong informa­

tion one time and accused you of stealing some cotton seed, 
didn’t he!

A. Yes, sir.
[fol. 88] Q. He accused you of stealing it!

A. Yes, sir.
Q. But you were not guilty!
A. No, sir, I didn’t steal it?
Q. You didn’t like to be accused of stealing cotton seed 

when you were not guilty?
A. I told him I didn’t steal it.
Q. It kind of made you mad, didn’t it?
A. No, sit, It didn’t make me mad at all.
Q. But you didn’t like to be accused of stealing it?
A. That’s right, but it didn’t make me mad.
Q. He kept on after you about it?
A. No, sir.
Q. When was the last time he mentioned it before his 

death?
A. It ain’t been mentioned no more.
Q. How long before he died had he talked to you about 

it?
A. He ain’t talked since the night I had the seed.
Q. You got the seed?
A. No, sir, I didn’t get them.



73

Q. How long was that before his death!
A. I don’t know.
Q. About a month?
A. It has been more than that.
Q. He had been after you about it several times?
A. Yes, sir.
Q. You told Ed Brown that you were going to kill Mr. 

Stewart if he didn’t quit fooling with you about it?
A. No, sir, I wouldn’t have killed him for nothing?
Q. You say that Mr. Adcock told it just like you told him? 
A. Yes, sir, I sure told him.
Q. Were you there when Ed and the other boy got 

whipped?
A. I was there, but I wasn’t where they was.
Q. Could you hear it going on?

[fol. 89] A. No, sir.
Q. You talked to Mr. Adcock the day that you were 

brought to jail?
A. Yes, sir.
Q. Then you were not brought until Monday?
A. No, sir, I sure wasn’t.
Q. You were not there when the other boys were 

whipped?
A. Let’s see.
Q. You were brought to jail the day that Mr. Adcock 

came down there?
A. Yes, sir.
Q. They told you that you didn’t have to tell anything, 

didn’t they?
A. Yes, sir.
Q. And they told you none of them were going to bother 

you?
A. Yes, sir.
Q. They told you they wanted you to tell the truth?
A. Yes, sir.
Q. And you went on and told it?
A. No, sir.
Q. Didn’t you know that you were getting in worse trou­

ble in admitting that you did it ?
A. But I didn’t kill him.
Q. You knew that you were safe there?
A. I was scared.
Q. You believed them when they said they were going to 

treat you right?



74

A. They sure told me that.
Q. You had confidence in them!
A. Yes, sir.
Q. And you told them the truth?
A. No, sir, I told a story.
Q. You admitted that you had a part in killing this man ?
A. Yes, sir.
Q. Did you think that you would better your position any 

by telling it?
[fol. 90] A. No, sir, I told a story.

Q. Did you think that you would be better off by telling 
a lie than if you hadn’t told it?

Mr. Clark: We object to telling a lie.
The Court: Overruled.
Q. You thought you would be safer to say you had a part 

in killing Mr. Stewart?
A. No, sir, I was scared.
Q. You were scared over there when you were strung 

up?
A. Yes, sir.
Q. You didn’t tell it then?
A. No, sir.
Q. Why didn’t you?
A. I tried to hold it; I told them I wasn’t in it.
Q. You tried to hold it back?
A. Yes, sir.
Q. You were scared over in Alabama, were you not?
A. Yes, sir.
Q. But you told it there?
A. After they whipped me so bad, I had to tell some­

thing.
Q. What was it you told them in Alabama?
A. I told them about me and Ed Brown was in it and 

that boy yonder, but that was a story.
Q. What did you say about Ed?
A. They said: “ What did Ed have to do with it? Didn’t 

he have the foot-ax?” , and I said he did.
Q. What did you have?
A. They kept whipping me, and I told them I had the 

chisel.
Q. What did you tell that Shields had?
A. I said I didn’t know, and they kept whipping me and 

said: “ Didn’t Shields have an ax?” , and I said he did.



75

Q. What room did you tell that you put Mr. Stewart in? 
A. I told we put him in the seed room.

[fol. 91] Q. How did you know which room to say?
A. Mr. Williams called us up there that day.
Q. You just said that you said you used a chisel because 

Mr. Dial told you to ?
A. Yes, sir.
Q. You told him where you put it?
A. Yes, sir. He asked did I lay it back on the box, and 

I had to tell him something.
Q. What did you tell him Mr. Stewart had in his pocket. 
A. I didn’t tell nothing about what he had in his pocket. 
Q. He didn’t say anything to you about what Mr. Stewart 

had?
A. No, sir.
Q. What did you tell about how much money you were 

going to get ?
A. I told him I didn’t know anything about it.
Q. How much did you tell the Sheriff you were going to 

get?
A. I didn’t tell him how much.
Q. Did you tell the Sheriff or anyone else that Shields 

was to get part of it ?
A. Yes, sir.
Q. How much did you say he was to get?
A. We didn’t have no certain amount.
Q. It was just going to be divided three ways?
A. Yes, sir.
Q. If it was $150, each man would get a third?
A. Yes, sir.
Q. You were going to share alike?
A. Yes, sir.
Q. That was the agreement you had before you went up 

there ?
A. No, sir, I ain’t never been up there.
Q. You worked for Mr. Stewart last year?
A. Yes, sir.
Q. You were in on the cotton plow-up campaign?
A. Yes, sir.

[fol. 92] Q. Ed Brown had some in it?
A. Yes, sir.
Q. Did you ask Mr. Stewart for your money on that?
A. No, sir. I told him to take that $12.00; I told him I 

would give him the other when I sold the cotton.



76

Q. When was that?
A. The day I sold the cotton.
Q. How long was that before he died?
A. A long time. I give him $11.00; that was all that was 

coming.
Q. Did you give Ed Brown his check?
A. I don’t know.
Q. Now, you plead guilty here yesterday?
A. Yes, sir.
Q. You were not any different yesterday from what you 

are now?
A. Yes, sir.
Q. You were not scared then?
A. Yes, sir.
Q. You had two lawyers appointed for you?
A. Yes, sir.
Q. You came up here this morning and had two more? 
A. Yes, sir.
Q. Mr. Dial didn’t do anything to you yesterday?
A. No, sir, but I was still scared.
Q. You came here today and after you had been in the 

Court room about half the morning, Mr. Dial hadn’t done 
anything to you?

A. No, sir.
Q. You never were scared of Mr. Adcock?
A. Yes, sir, I am scared of all white people.
Q. When you went up here where the beds are, you told 

Mr. Adcock you wanted to speak privately to him?
A. Ed Brown told him.
Q. You went off to speak to him?
A. No, sir.

[fol. 93] Q. You didn’t say anything at all?
A. No, sir, Ed Brown was the one that done the talk­

ing.
Q. You agreed with Ed?
A. Yes, sir.
Q. What did Ed tell him?
A. About his wife, but that was a story about between 

him and his w ife; I couldn’t hear him good.
Q. Ed said what he said Monday night was so?
A. No, sir, it was a story.
Q. Ed told Mr. Adcock up here where the beds are that 

what you all had told him on Monday night was so ?
A. Yes, sir.



77

Q. And yon said: “ Yes, sir, Mr. Adcock, we told yon 
the truth Monday night. ’ ’ ?

A. Yes, sir.
Q. That was at about dinner time ?
A. Yes, sir, but we told a story.
Q. What prompted you to tell it?
A. I was scared.
Q. Are you scared now?
A. Yes, sir.
Q. Mr. Adcock didn’t even bring it up; you and Ed are 

the ones that brought it up ?
A. Yes, sir.
Q. He hadn’t said a worft to you about it?
A. No, sir.
Q. What else did Mr. Adcock say to you up there ?
A. I think that was all he said.
Q. You haven’t told anything he said; what did he say? 
A. He said he would have to see our lawyers, or some­

thing.
Q. Didn’t anybody do anything to you on Monday night? 
A. No, sir.
Q. After you got through talking, you told them you felt 

[fol. 94] better and asked for a cigarette?
A. I sure did.
Q. And they gave you a cigarette?
A. Yes, sir.
Q. Did you feel better?
A. A little better.
Q. You felt like you could sleep a little better, didn’t 

you?
A. I didn’t'sleep none.
Q. You thought then that you were going to get some 

sleep ?
A. No, sir.
Q. What was it that made you feel better?
A. After the other boys commenced telling it, after that 

we all agreed it was like that.
Q. You felt like you had it straightened out?
A. No, sir, it was sure wrong.
Q. You say you were scared. Which did you think was 

the worst, to be whipped some more or admit killing this 
white man?

A. I would rather be whipped, because I ain’t killed Mr. 
Stewart.



78

Q. You told them Monday night that there wasn’t any­
body else in it except you three.

A. Yes, sir, that’s all.
Q. That was the truth!
A. No, sir.
Q. There were some more in it?
A. No, sir, there wasn’t anybody in it?
Q. You said there wasn’t anybody in it but you three?
A. I told it because I was scared.
Q. Mr. Dial didn’t make you say that, did he?
A. No, sir. I was scared.
Q. Why did you tell on the.other boys? He didn’t make 

you tell on them, did he ?
A. He whipped me until I had to tell something.
Q. Why did you pick these two?

[fol. 95] A. Because they was already down there.
Q. You just put them in it with you?
A. Yes, sir. They put me in it, and after that they said 

all was in it but I come to find out that there ain’t none of 
them in it.

Q. When did you find that out—just a little while ago?
A. Yes, sir.
Q. That was the first time you heard them say that?
A. That Shields boy, I heard him say he didn’t.
Q. You heard him say Monday night that he did?
A. No, sir.
Q. Shields admitted going there to get some money out 

of it?
A. No, sir, I didn’t hear him say nothing about any 

money.
Q. He didn’t get any, did he?
A. We didn’t go and look for none, because I didn’t get 

out of my bed.
(Witness dismissed.)

Court here recessed until 8 :30 A. M., March 26, 1934.

Mr. Stennis: Comes the District Attorney and informs 
the Court and defense counsel that the State now has avail­
able further and additional testimony for the State that was 
not available at the beginning of the trial. This testimony 
consists chiefly of finger prints taken from specimens



79

found at the scene of the homicide. These defendants were 
arraigned in open court the day before trial commenced 
and all entered pleas of guilty. The work on the finger 
prints was not then complete, and it was not completed and 
available until Friday morning. It was therefore not avail­
able at the time that the State presented its case in chief. 
The State moves the Court to permit the introduction of 
this testimony either at this time or at a subsequent time 
during the progress of the trial.

Mr. Clark: The defendants object to this testimony be­
cause the State has closed its case, and this is an unusual 
line of testimony and the defendants have not had an op- 
[fol. 96] portunity to avail themselves of finger print ex­
perts who might know this line of testimony in order that 
they might contradict the testimony offered by the State. 
For that reason the defendants object.

Mr. Stennis: The District Attorney states that the rea­
son that this testimony was not developed and available 
at the beginning of the trial was that the District Attorney 
was reliably informed that all the defendants had fully con­
fessed to their implication in the crime, and the District At­
torney himself had arraigned all three defendants in open 
court, and the defendants Ed Brown and Yank Ellington 
then and there entered pleas of guilty to the charge of mur­
der, and it wasn’t considered necessary then to develops 
the finger prints, and the State was therefore taken by sur­
prise with the defense presented by the defendants.

The Court: Under the circumstances, it is of course out 
of order to present this now, but I can see how the state 
was misled as to the necessity of any such testimony, and I 
think it is proper to admit it at this time for the benefit 
of everybody. Any light that can be obtained on this case 
should be given. As to the objection that they didn’t antici­
pate this evidence, this evidence shows that the impressions 
or whatever you call them were found at the scene. I think 
under the circumstances it ought to be admitted.

Mr. Daws: Now come the defendants and move the court 
to continue this cause for the reasons already assigned in 
the objection made by Mr. Clark.

The Court: I will give you time to get experts on finger 
prints if you want them if they are to be had, and I presume 
that they are. After this evidence is presented by the State, 
if you wish to rebut it, I will allow time to secure experts



80

if they can be had within a reasonable time, and I will al­
low such a reasonable time. The motion is overruled.

Mr. Stennis: I will introduce this testimony now if the 
attorneys for the defendants are willing.

Mr. Clark: You may introduce it now if you wish, or you 
[fol. 97] can wait until later. It will take only a short time 
for us to finish however.

Mr. Stennis: All right, you finish your case first then.

Ellis Lee Giles (Colored), a witness for the defendants, 
after being duly sworn, testified as follows:

Direct examination.
By Mr. Clark:

Q. Where do you live?
A. I live on Mr. Baymond Stewart’s place.
Q. How long have you been there?
A. I have been there about 17 years.
Q. You and Mr. Baymond were good friends?
A. Yes, sir.
Q. Do you know Henry Shields?
A. Yes, sir.
Q. Do you remember when Mr. Stewart was killed?
A. Yes, sir.
Q. Was that on Thursday night?
A. Yes, sir.
Q. Did yon see Henry Shields that afternoon?
A. Yes, sir, I saw him first a little bit before sun-down. 
Q. Where was he then?
A. He was at home then.
Q. How far did he live from Mr. Stewart’s home?
A. Well, just about a quarter of a mile, the best I can get 

at it.
Q. What was the occasion of your seeing him?
A. My wife went to her mother’s, and I started to see 

her. I stopped and played checks with him until first dark. 
Q. With Henry Shields?
A. Yes, sir.
Q. Who else was there?

[fol. 98] A. Wilson Campbell, Hervey Shields, Harry 
Carr and a fellow named George.

Q. You left there at first dark?
A. Yes, sir.



81

Q. Did you see Henry any more?
A. No, sir.
Q. Did you see Ed Brown or Yank Ellington that after­

noon?
A. I saw them about 2:00 o ’clock. We was working on 

the pasture together and after we left Mr. Raymond sent 
me and papa to the gate first, and he sent them another way 
and I haven’t seen them any more until yesterday. I saw 
them the day after the killing when we was all up at the 
house.

Cross-examination.

By Mr. Stennis:
Q. How far did you say this boy lived from Mr. Stewart?
A. As near as I can get at it, between a quarter and a 

half.
Q. How far did Shields live from Ed Brown?
A. A good half mile.
Q. Ed Brown lives close to Mr. Stewart too?
A. Yes, sir.
Q. You don’t know where he had been before you came 

along there ?
A. No, sir, I don’t know where he had been, but when I 

got there he told me he had been cutting wood.
Q. You don’t know how long he had been at the house?
A. I and him met at the house.
Q. You came up there at the same time?
A. He came up on one side and I came up on the other.
Q. Which way did he come from?
A. From toward the public road just below Miss Eth­

ridge’s.
Q. Is that in the direction of Ed Brown’s?
A. No, sir. Ed Brown lives to the west, and the direc­

tion he was coming from was the south, but he was near the 
house then.

Q. That was before sun-down?
[fol. 99] A. Yes, sir.

Q. Did he have an ax then?
A. I don’t know.
Q. You played checks until after first dark?
A. Yes, sir,

6—6653



82
Q. And you left then?
A. Yes, sir.
Q. You don’t know anything about what happened after 

then?
A. No, sir, I never saw Henry no more until yesterday. 
(Witness dismissed.)

K ate Ellington- (Col.), a witness for the defendants, 
after being duly sworn, testified as follows:

Direct examination.
By Mr. Clark:

Q. Do you know Yank Ellington?
A. Yes, sir.
Q. What kin are you to him ?
A. That’s my husband.
Q. How long have you been married?
A. Three years.
Q. Where do you live?
A. We live on Mr. Baymond’s place.
Q. How long have you been there?
A. We been there about two years.
Q. You and Yank and Mr. Stewart got along alright?
A. Yes, sir.
Q. Have you ever had any trouble?
A. No, sir.
Q. Do you remember the night it is said Mr. Stewart 

was killed over there?
A. Yes, sir.

[fol. 100] Q. What day of the week was that?
A. I don’t know what day of the week it was, but they said 

it was on Thursday night.
Q. Do you know where Yank was that night?
A. Well, Judge, I am going to tell the truth about that. 

When I laid down he laid down with me. He went to bed, 
and I went to sleep, and if he left I don’t know nothing about 
it.

Q. Was he there when you woke up?
A. Yes, sir. He went in the woods to cut some poles to 

build a hog pen.
Q. You tell the jury that he stayed with you all night?



83

A. Yes, sir, I sure told them that.
Q. He stayed with you that night; how many children 

have you!
A. Two.
Q. Did you sleep sound that night?
A. Yes, sir. You know when you go to sleep, you go to 

sleep.
Q. If Yank left, you don’t know anything about it?
A. If he left, I don’t know nothing about it.

Cross-examination.

By Mr. Stennis:
Q. You went to sleep and woke up the next morning?
A. Yes, sir. He was at home when I woke up.
Q. You don’t know whether he got up and left between 

those times or not?
A. No, sir, I don’t know about that.
Q. There has been something said about folks getting 

after Yank the night that Mr. Stewart’s body was found. 
Mr. Cliff Dial took up for him, didn’t he?

A. Yes, sir.
Q. And protected him?
A. Yes, sir.

Redirect examination.

By Mr. Clark:
[fol. 101] Q. He didn’t take up for him until after they 
handled him pretty rough, did he ?

A. That night when they carried him to the house, he took 
up for him when they hung him twice. He didn’t let them do 
anything else after they beat him.

Q. Did he help hang him?
A. I don’t know.
Q. What kind of shape was he in when he got home?
A. He was beat pretty bad.
Q. How do you know Mr. Dial took up for him?
A. He told me. He said he told the men not to bother 

him no more.
Q- Did you see Ed Brown or Henry Shields that night?
A. No, sir, I ain’t seen none of them.



84
Recross-examination.

By Mr. Stennis:

Q. You say Yank told you himself that Mr. Dial took up 
for him and told them not to bother him any more ?

A. Yes, sir, he told me that.
(Witness dismissed.)

Irena Brown (Colored), a witness for the Defendants, 
after being duly sworn, testified as follows:

Direct Examination.

By Mr. Clark:

Q. Do you know Ed Brown?
A. Yes, sir. He is my husband.
Q. How long have you been married?
A. 5 years.
Q. How many children have you got?
A. We ain’t got none.
Q. Do you know Henry Shields and Yank Ellington?
A. Yes, sir.

[fol. 102] Q. Where do you live?
A. We stays on Mr. Raymond Stewart’s place.
Q. How long have you been there ?
A. Two years, going on three.
Q. You and Mr. Raymond and Ed get along all right?
A. Yes, sir.
Q. Did you have any trouble?
A. No, sir.
Q. Do you remember the night that it is said Mr. Stewart 

was killed?
A. Yes, sir.
Q. What night of the week was that?
A. Thursday.
Q. Do you know where Ed was that night?
A. Yes, sir. After sundown we was on our way to a 

colored woman’s house and we met Mr. Raymond, and Ed 
had his pistol in his pocket.

Q. Whose pistol?



85

A. Mr. Raymond’s. He had been letting him keep it. 
When we met Mr. Raymond he spoke about it.

Mr. Stennis: We object to what was said.
A. We met him and Ed give him the pistol, and we went 

on to where we was going.
Q. Where did you go ?
A. To Fannie Little’s.
Q. What time did you leave there?
A. Early in the night; we come on back together.
Q. What did you do then?
A. We set up and roasted sweet potatoes and then we 

both went to bed.
Q. What time was that?
A. Around 9 :00 o ’clock near as I can get at it.
Q. Hid you go to sleep?
A. Yes, sir, I went to sleep.
Q. Hid Ed get up that night?
A. Not as I knows of; if he got up, I don’t know it. 

ffol. 103] Q. When did you see him next?
A. When I got up. The sun was up when I woke up.
Q. Ho you tell the jury that he didn’t leave the house 

that night, so far as you know?
A. If he left the house, I don’t know anything about it. 

I woke up that morning after the sun was up.
Q. Hid you see Yank Ellington and Henry Shields that 

night ?
A. No, sir, I didn’t see them at all.

Cross-examination.

By Mr. Stennis:

Q. You say that you and Mr. Stewart were good friends 
and that Ed and Mr. Stewart were good friends ?

A. Yes, sir.
Q. You all have been living there a good while?
A. We have been staying there two years, going on three.
Q. Mr. Stewart let Ed work around the house and barn 

and trusted him?
A. Yes, sir.
Q. He let him carry the keys ?
A. He didn’t let him tote the keys.



86

Q. He let him have them sometimes ?
A. When he was at the house and locked the crib.
Q. Sometimes Ed forgot to bring them back to him?
A. No, sir, I don’t remember it.
Q. He would have them sometimes?
A. I don’t remember him having them.
Q. Sometimes he would have them around the barn and 

would bring them on home ?
A. No, sir, I don’t remember him ever bringing them 

home.
Q. You went to sleep about 9:00 o ’clock, you say?
A. Yes, sir, us got back about 9 :00.
Q. Did you go right to sleep?
A. Yes, sir; I never woke up that night.

[fob 104] Q. Ed was still in bed when you got up?
A. Yes, sir, I left him in bed.
Q. How long had he had Mr. Raymond’s pistol?
A. Ed had done had it about two months.
Q. Did he have Mr. Raymond’s shot gun?
A. Yes, sir.
Q. How long had he had it?
A. He got it the first year we moved there.
Q. He had had it ever since ?
A. Yes, sir.
Q. What did Ed do Thursday before the killing?
A. He worked on the pasture.
Q. Did he work on it the next day?
A. No, sir.
Q. What did he do on Friday?
A. That Friday morning I got up and cooked breakfast 

and he got up and washed his face and had breakfast and 
went up to Mr. Adams.

Q. What kind of work did he do ?
A. He didn’t do any work. He was planning on going to 

Scooba.

Redirect examination.

By Mr. Clark:

Q. Where was Mr. Raymond’s shot gun that night?
A. There at home.
Q. At Ed Brown’s home?
A. Yes, sir.



87
Q. Where is it now?
A. I don’t know. Mr. Dudley taken it away Friday night, 

and I haven’t seen it since.
(Witness dismissed.)

Mary Shields (Colored), a witness for the Defendants, 
after being duly sworn, testified, as follows:

[fol. 105] Direct examination.

By Mr. Clark:
Q. Do you know Henry Shields?
A. Yes, sir, he is my husband.
Q. How long have you been married?
A. Five years and four months.
Q. How many children have you got?
A. Two.
Q. Do you remember the night it is said that Mr. Ray­

mond Stewart was killed?
A. Yes, sir.
Q. Where were you that night?
A. I was at home.
Q. Who was there with you if anybody?
A. After my husband left?
Q. Yes.
A. Judge Young and my two children.
Q. Did you and your husband eat supper together that 

night ?
A. Yes, sir.
Q. What did he do that day?
A. He cut wood all day.
Q. For whom?
A. Yes, sir, he cut wood that day.
Q. Who else was there at the house that afternoon or 

night ?
A. Ellis Lee Giles, Hervey Shields, Willie Shields, Harry 

Carr and John Tiller.
Q. What time did they get there?
A. After the doodle-bug run.
Q. Is that a train that you are talking about?
A. Yes, sir; it runs out of Scooba.
Q. What time of night does that get there?



88

A. I don’t know what time it runs.
Q. Was it at night or in the evening?

[fol. 106] A. Yes, sir, it was the evening train going 
south.

Q. What did those folks do there at your house?
A. They played checks.
Q. How long did they play?
A. They stayed about an hour.
Q. Did they eat supper there?
A. No, sir; we had eat supper when they come.
Q. What happened after they left your home?
A. Me and my husband got into it.
Q. What do you mean?
A. We got into a fuss.
Q. Did he strike you?
A, No, sir, he didn’t hit me. He got an ex, to hit me, and 

I run and taken it and it knocked a place on my leg right 
there.

Q. Did it knock any blood out?
A. It knocked the skin off, and I put white vaseline on it.
Q. Show the jury that place.
A, Yes, sir, right there. It bled clean down to my feet.
Q. You all were scuffling over the ax when that hap­

pened?
A. Yes, sir, I taken the ax from him.
Q. What time of night was that?
A. About 9:00 or 10:00 o ’clock.
Q. What became of Henry then?
A. He taken his clothes and left and said he was going 

to leave. I went to the door and told him if he was going 
to leave on that account, he just wanted to go. I said: 
“ What am I going to tell Mr. Ethridge in the morning?’ ’ 
and he said: “ I am going by to tell him.”

Mr. Stennis: We object to that.
The Court: Sustained.
Q. He left and took his clothes ?
A. Yes, sir.
Q. When did you next see Henry?

[fol. 107] A. The other evening when you all got me out 
there and brought me up here.

Q. That was the first time you had seen him?
A. That’s the first time I laid eyes on him since he left 

that night.



89
Cross-examination.

By Mr. Stennis:
Q. You say that yon took the axe away from Henry?
A. Yes, sir, I certainly did.
Q. He wasn’t trying to hit you much, was he?
A. He must not to let me take it away from him.
Q. You had a baby in your arms then?
A. Not then. After the baby jumped up and cried after 

I taken the axe, I went and got her.
Q. What did you do with that axe?
A. I set it in the house.
Q. What became of it then?
A. The next morning the boy with us got up and split 

some wood.
Q. What was his name ?
A. Judge Young; that is what his mother went by.
Q. As soon as you got the axe away from Henry you 

laid it at the side of the door?
A. Yes, sir.
Q. You didn’t have anything more to do with the axe?
A. No, sir.
Q. When you fell on the bench, it wasn’t the axe that hit 

you?
A. Yes, sir, I fell on the bench.
Q. Where was the axe then?
A. In my hand, I was taking it from Henry then.
Q. As soon as you got it, you threw it aside?
A. No, sir, I held it in my hand a while; I had it until 

Henry left.
Q. You were just holding that for protection?
A. Yes, sir, to keep him from taking it away from me; 

[fol. 108] after he left I set it aside.
Q. After that you put some vaseline on your leg?
A. Yes, sir.
Q. You didn’t get any blood on the axe from your leg?
A. No, sir; if I did, I didn’t notice anything about it.
Q. You didn’t pick up the axe any more?
A. No, sir.
Q. This boy, Judge Young, cut wood with the axe the 

next morning ?
A. Yes, sir, he split wood; it was sawed in fire lengths. 
Q- Did he tell you why he covered the axe up out there?



90

A. No, sir. He left there and said he was going up to my 
mother’s house.

Q. Were you there when Mr. Lavander found the axe?
A. No, sir.
Q. You don’t know why that blood was on it?
A. No, sir.
Q. You didn’t put it on there?
A. No, sir; if I did, I don’t know nothing about it.
Q. What became of Bob Cross ?
A. I don’t know; I couldn’t tell who it was?
Q. How many times did Henry shoot at Bob?
A. Not a time.
Q. He didn’t have anything to shoot with?
A. He didn’t have nothing to shoot with?
Q. And he didn’t shoot him?
A. No, sir.
Q. You say he carried his clothes with him; he didn’t 

carry his shoes, did he?
A. He didn’t carry his work shoes.
Q. Where did he leave them?
A. Sitting at the side of the dresser at home.
Q. He carried everything else that he had?
A. Yes, sir.

ffol. 109] Q. He put on his Sunday shoes?
A. Yes, sir. He wore overalls and a jumper and a shirt 

and he got on away from there. He was toting his other 
shirts and Sunday pants.

Q. Whose jumper is that?
A. That is an old jumper that- Mama give me fresh meat 

in ; I put it down in the old dirty clothes bag.
Q. Whose jumper was it?
A. That’s my father’s old jumper what I got from my 

mother’s house with meat in it.
Q. When did that happen?
A. That was since Christmas.
Q. What was in it when it came to your house?
A. There was a piece of head in it and a piece of back 

bone and a piece of spare ribs.
Q'. That was fresh meat?
A. Yes, sir.
Q. You say that it was since Christmas?
A. Yes, sir.
Q. Where did you put that jumper?



A. I throwed it in the dirty clothes bag.
Q. Whose axe is that?
A. That was our axe.

Redirect examination.

By Mr. Clark:
Q. When this boy came on you with that axe, did it have 

any blood on it?
A. No, sir, I don’t know; he had had it all day.
Q. Do you know anything about that new looking rust 

on it?
A. No, sir, I certainly don’t.
Q. It was right after Christmas that you brought that 

meat there ?
A. Yes, sir.
Q. You hadn’t used that jumper since that time?

[fol. 110] A. No, sir; I hadn’t ever even washed it.
Q. That was about Christmas week?
A. It was about two weeks after Christmas.
Q. And it hadn’t been used since that time?
A. No, sir.
(Witness dismissed.)

The defendants rest.

91

Mk. T. D . H a r b o u r , a witness for the State, in rebuttal, 
being duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:

Q. Where do you live, Mr. Harbour ?
A. In Meridian.
Q. What kind of work are you engaged in?
A. I am with the police department identification bureau.
Mr. Clark: I want to object again to this testimony for 

the reasons given heretofore.
The Court: I overrule the objections for the reasons al­

ready given.



92

Q. Yon have charge of the identification bureau?
A. I have.
Q. You do finger print work?
A. Yes, sir.
Q. How long have you been engaged in this work?
A. In finger-print work about eleven years; I have been 

down there fourteen years.
Q. You prepared yourself and have been engaged in this 

work for eleven years?
A. Yes, sir.
Q. Are you qualified to make comparisons of finger­

prints ?
[fol. I l l ]  A. I am.

Q. Did you go to the scene of Mr. Baymond Stewart’s 
death and take any impressions there?

A. I went up there today a week ago.
Q. You went to his home?
A. Yes, sir.
Q. What object, if any, did you find there from which you 

took impressions?
A. A lamp and a lamp burner.
Q. Where was that burner?
A. The lamp and the lamp burner were in the seed house; 

that was a room in the house with seed in it.
Q. Where was it when you picked it up?
A. It was about 30 inches from Mr. Stewart’s head.
Q. Was the body still there?
A. The body was just inside the door. There was a 

molasses barrel in there. The body was lying on its back 
with the legs pushed back four or five inches between where 
it was and the door.

Q. Tell what you did there and what later developed.
A. When I got there, Mr. Jenkins and myself and Mr. 

Kelly from Memphis and the Sheriff and several more were 
there; they told us there had been several people in the 
house but not in the room. They said that------

Mr. Clark: We object to that.
The Court: Sustained.
A. I went in the house at the back door near the well and 

observed a tool chest with the lid open. There was a sweet 
gum stick about five feet long sticking in this door.

Q. I just wanted you to tell what you did about taking 
finger-prints.



93

A. I didn’t take any impressions at the scene of the 
crime. I went in the door and picked np the lamp and the 
lock that was laying in the middle of the floor about four 
and a half feet from the tool chest. It was laying there 
[fol. 112] unlocked, and a chisel was laying on the left hand 
side of a tray of the toold chest. It looked like it was 
thrown down on top of the tooM chest, and I picked that up 
and this lock and got the lamp and the burner. The burn­
er and the lamp was together. I preserved that stuff and 
took it to Meridian and locked it up in order to get finger­
prints of this stuff. That night I taken finger-prints of 
several negroes that the officers brought up there. There 
were impressions on this lock. This wick had cotton seed 
and blood all over the sides, and there was some on the 
lamp. This wick burner had been set afire from the under 
side; it was burned on both sides. When the burner is 
taken off, there are three or four finger-prints or impres­
sions there; there is one and there is one and there is an­
other one. When we got there the burner was unscrewed; 
whoever unscrewed it at that time, their hands were moist 
with perspiration. The lamp itself had cotton seed on it, 
but there are prints right in there and there and right there. 
That is a good print right there and there is another one. 
These prints here were taken at Mr. Stewart’s residence 
of Ed Brown and Yank Ellington, and Henry Shields prints 
were taken in my office on Saturday after I was in Mr. 
Stewart’s house on Friday. The print here on the lamp is 
Ed Brown’s right ring finger. There is a print under here 
under the bowl of the lamp of Ed Brown’s right forefinger 
and some other prints under it. The reason that the prints 
are not developed in a 24-inch frame is that when they 
talked to the negroes they confessed, and then they told us 
not to go any further with it. There are two prints here 
that go with Ed Brown’s card, one is his right ring finger 
and the other is his left fore-finger.

Q. You are certain that the print that you got off that 
lamp is the same as the prints that you took from Ed 
Brown?

A. Yes, sir.
Cross-examination.

By Mr. Clark:
[fol. 113] Q. Nobody but you could tell whether that ir 
right or not?



94
A. Yes, sir.
Q. Another finger-print expert could?
A. I could make prints of this and enlarge it to where 

the ridges would be as large as a pencil, and you could 
swear that they are the same yourself. I could make 
them the same size and point out the characteristics to you; 
where you get the identification is inside the ridges.

Q. No two men have the same?
A. You identify them by the way they turn, the pores, 

the sweat glands and the beginning and endings of the 
ridges.

Q. They have places to teach you this just like medical 
colleges ?

A. Yes, sir. You have got to prepare yourself like a 
dentist or doctor or lawyer, but I can take that thing and 
enlarge the prints to such an extent that I ca'n point out 
to you the characteristics in this particular -print and on 
the one picked up at the scene of the crime.

Q. That doesn’t take experience to tell that?
A. Not after the prints have been prepared.
Q. Which was did you say was this boy’s print?
A. His right ring finger.
Q. All of these prints on this card are the same?
A. That is his right thumb, his forefinger, his middle, 

ring and little finger. Over here is his left hand.
Q. Who are other finger-print experts in Meridian? Are 

there others?
A. No, sir.
Q. Where is the closest one?
A. In Birmingham and New Orleans.
Q. Are there any in Jackson?
A. No, sir.
Q. Of course, you have no interest in this case?
A. Not a bit in the world.

[fol. 114] Q. You are positive that these are Ed Brown’s 
prints on here?

A. There are other prints on there that I don’t know 
whose they are.

Q. But these are Ed Brown’s; you know that?
A. Yes, sir.
Q. You say you took these at Mr. Stewart’s residence?
A. No, sir. I carried those four articles to my office. 

When you go to a place like that, there are sow many dif-



95

ferent chemicals and powders that yon have to use, and 
there is a regular printing machine that you use.

Q. Has there ever been a case where finger-prints proved 
a failure?

A. No, sir; the only thing that is a failure in finger-prints 
is a crooked expert. There is no failure in finger-prints.

Q. How long would they stay on that lamp if it wasn’t 
molested ?

A. Without doing anything to it?
Q. Without anybody touching it.
A. That depends on the climate, the weather, the tem­

perature, moisture, heat and the surface that it is on.
Q. You wouldn’t be able to take a print then after a 

certain time?
A. No, sir.
Q. Would that print stay on this lamp?
A. The prints on the lamp had been crusted over; I 

imagine that was from the heat.
Q. How long after the crime was it when you made the 

prints ?
A. I got to Mr. Stewart’s house between four and five 

o ’clock.
Q. In the afternoon?
A. We left there that night, and it was Saturday morn­

ing when I powdered the prints up and preserved them.
Q. Those prints that you said were Ed Brown’s, are 

they the same on the burner and the lamp too ?
A. I didn’t go ahead and prepare those on the burner. 

The prints on the burner had been crusted over. It is the 
same as a greasy spot that will crust over and then finally 
dry up. That is the case there, and I imagine it was caused 
from, the fire.

Q. Did you get any prints on the chisel or lock?
[fol. 115] A. No, sir, I didn’t. There are some impres­
sions on the lock, but the finger-prints of a man are very 
delicate and that lock is made of different little pieces put 
together. We have a process for leaving the prints just 
as they are, but I didn’t do that.

Q. Do you know what that lock came off of?
A. No, sir.
Q. You didn’t develop any prints from the chisel?
A. No, sir.
Q. You haven’t had time to do that?



96

A. No, sir.
Q. Tell whether or not from your experience with lamps 

whether that is a good object for prints or not.
A. Yes, sir, that is good stuff there. Anything smooth 

is. Take when there is a little dust on a shoe box. you can 
see the print of your hand on that. When you put your 
hand on that, you pick up the top of the dust. And when 
you your hand on a smooth object, that leaves an impres­
sion of your hand.

Q. You would consider that an unusually good impres­
sion?

A. Fairly good. I expect there are fifty different prints 
on there cross-ways and every other way. I didn’t pick 
out all of those. You have to pick out the furrows of each 
ridge there, and it takes time. If you cut one of the ridges 
while working with them, you are just out of luck because 
you can’t put it back like it was.

Q. You say the records show that this is absolute testi­
mony ?

A. Yes, sir.
Q. There has never been an exception to that?
A. There is about one chance in two hundred and fifty 

million chances of getting two the same.
Q. You said something about not having a chance to de­

velop these into larger prints?
A. We have a regular printing machine which jnakes 

little prints ; it makes prints 2SA inches by 314 inches. You 
[fol. 116] take that and put it in a camera making it larger, 
and then take that negative and put it in another camera 
and that makes it large enough so that you gentlemen can 
sit back there and see it.

Q. Is there anything incomplete about it now so far as 
you are concerned?

A. No, sir.
Q. You have completed your analysis of it?
A. I completed my part when I put those prints on there.
Q. You have reached your final conclusion?
A. Yes, sir.
Q. These specimens on the lamp, state whether or not 

they appeared to have been recently made.
A. They hadn’t been on there long. There was a crust 

over each one of them caused by the heat. Either old age 
or heat will cause a crust on them.



97
Redirect examination.

By Mr. Stennis:
Q. Is that Ed Brown, the defendant, that you are talking 

about ?
A. That negro there smoking a cigarette.
Q. That is one of the defendants here?
A. Yes, sir.

Mr. Clark: Now comes the defendant Ed Brown and
moves the Court to exclude this testimony because it is 
incompetent, irrelevant and immaterial and uncertain.

The Court: Overruled.
(Witness dismissed.)

Mr. L. Gf. Temple, a witness for the State, in rebuttal, be­
ing duly sworn, testified as follows:

Direct examination.

By Mr. Stennis:
Q. Where do you live?

[fpl. 117] A. Scooba.
Q. Did you know Mr. Raymond Stewart during his life­

time?
A. Yes, sir.
Q. Do you know the defendant Ed Brown?
A. Yes, sir.
Q. At any time fairly recently have you been to Mr. 

Stewart’s house on any occasion that required him getting 
his keys ?

A. Yes, sir.
Q. Tell about it.
A. I went to get some bolts to go in a cultivator; I went 

to his house and told him what I wanted. He said he didn’t 
have the keys------

Mr. Clark: We object to what he said.
The Court: Sustained.

7—6653



98

Q. What time of the day was this?
A. About 10:00 o ’clock when I went over to his place. 
Q. State whether or not he had to wait for the keys.
A. Yes, sir, about three or four minutes.
Q. Did he send for the keys or anything like that?
A. A fellow come along with them.
Q. Who was that?
A. Ed Brown.
Q. Tell whether or not he had Mr. Stewart’s keys.
A. Yes, sir, he give them to him.
Q. Where did Ed Brown have them?
A. In his pocket.
Q. Did Mr. Stewart go and get the bolts for you then?
A. Yes, sir.
Q. Where did he go?
A. To his room, and he went to his safe and unlocked his 

safe and got the bolts out. They was in a little square box 
about that wide and about 10 inches long.

Q. Did he use the keys in getting to where the bolts were? 
[fol. 118] A. Yes, sir.

Q. Did you notice whether or not he had any money in 
the safe?

A. Yes, sir, there was some money in the safe.
The Court: Was that an iron safe?
A. Yes, sir.

Cross-examination.

By Mr. Clark:
Q. When did that happen?
A. That was a little more than two years ago now.
Mr. Clark: We move to exclude that because it is incom­

petent, irrelevant and immaterial.
The Court: Overruled.

Redirect examination.

By Mr. Stennis:
Q. Was Ed Brown living on the place at that time?
A. Yes, sir.
(Witness dismissed.)



Mr. T. H. Nicholson, a witness for the State, in Rebuttal, 
testified as follows:

Direct examination.

By Mr. Stennis:
Q. You are the marshal of the town of Scooba?
A. Yes, sir.
Q. Do you know the defendant here, Henry Shields?
A. Yes, sir.
Q. On last Sunday morning down at Meridian, in com­

pany with Mr. Cliff Dial and Buddy Gilbert, did you have 
a conversation with this boy Henry Shields with regard to 
Mr. Stewart’s death?

Mr. Clark: We object; this is not in rebuttal.
Mr. Stennis: It is in rebuttal of what Henry Shields 

testified about the conversation they carried on. This is 
about the first confession.
[fol. 119] The Court: I think it is competent.

Mr. Stennis: He testified at length what they told him.
The Court: With reference to the suggestions made to 

him?
Mr. Stennis: Yes, sir.
The Court: Overruled.
Q. Go ahead and tell the court and jury just how the boy 

Henry Shields was approached, what you said to him and 
what you did to him, if anything.

A. We went to the jail there and had this jumper and 
this axe that was found at Henry Shields’ house; we asked 
to see him and they brought him down.

Mr. Clark: We want it noted that we are objecting to 
all this testimony.

The Court: Objection overruled.
A. They brought him in and we presented the stuff to 

him and told him it was evidence enough to convict him, but 
what we wanted out of him was to know whether there was 
anybody in it with him. He denied having seen the jumper, 
but he said the axe was his. We talked to him at length 
there about it, and he wouldn’t admit knowing anything 
about it. Finally------

Q. At that time you hadn’t talked to Ed Brown?

99



100

A. No, sir.
Q. And you hadn’t talked to Yank Ellington?
A. No, sir. At that time we had no idea who could have 

been in it with him; in fact we thought that------
Mr. Clark: We object to that.
The Court: Sustained.
Q. You didn’t have any information about anyone being- 

in it definitely except for the axe?
A. That’s all we had to go by at the time. We asked if 

we might take him in the back room there------
Mr. Clark: We object to that.
The Court: Sustained. Of course, it would be incompe- 

[fol. 120] tent to admit any statements that he made. The 
only competent thing is to rebut the statement about sug­
gestions made to him about who might be implicated.

Q. Without telling what he said, did he later talk to you 
gentlemen ?

A. Yes, sir.
Q. Did he tell you some things about Mr. Stewart’s 

death ?
A. Yes, sir.
Q. Without saying what he told you, did you make any 

suggestions to him as to who was with him?
A. We merely asked him.
Q. Who did he say was with him?
Mr. Clark: We object.
The Court: Overruled.
A. Ed Brown and Yank Ellington.
Q. Did you suggest to him about who went in any certain 

door of the house?
Mr. Clark: We object to the leading.
The Court: Overruled.
Q. Did you or anyone else suggest that to him?
A. No, sir. We asked what door he entered through and 

he stated that he entered through the west door by the 
chimney.

Q. Don’t tell what he said. At that time did you make 
any suggestion about anyone having picked Mr. Stewart’s 
body up and carried it in that room?

A. No, sir.



Q. Was there any suggestion made to Shields about 
what weapons they used?

Mr. Clark: We object.
The Court: Overruled.
A. No, sir.
Q. You didn’t know yourself, did you?
A. No, sir, we didn’t know what they used.
Q. Did you later talk to Ed Brown on that same occasion? 

[fol. 121] A. Yes, sir.
Q. About this killing?
A. Yes, sir.
Q. Did Ed Brown make any statements to you?
A. He did.
Q. Did you make any suggestions to Ed about the way 

that he entered or anything like that?
A. We merely asked to see if his story would cheke with 

Henry’s.
Q. He answered your questions?
A. Yes, sir.
Q. Did you make any suggestions to Ed about the axe or 

anything like that?
A. There were no suggestions.
Q. About the foot axe or chisel or anything like that?
A. We mentioned the foot axe and chisel.
Mr. Clark: We object to that.
The Court: Overruled. I don’t know what he was going 

to say.
A. I think we a&sed Ed if he used either one; the foot axe 

had been missing. The axe was found there with blood on 
it, and we asked who used those things.

Q. Did you ask Ed anything about the jumper?
A. We asked Henry about the jumper in Ed’s presence. 

Henry said the jumper belonged to Ed, and I asked Ed what 
about it, and he said: “ Yes, sir, that is my jumper, but that 
negro had it on.”  He said that he put it on to keep from 
getting his jumper bloody.

Q. Yank Ellington wasn’t there then?
A. No, sir.
Q. When you left those boys, Henry and Ed, did anybody 

tell them in your presence that they had to tell the same 
thing later?

101



102

A. Nothing was said about that.
Q. Did Mr. Dial make any statement like that?
A. No, sir.

[fol. 122] The Court: Ask if these were the first state­
ments, so far as he knows, made by the defendants to any­
body.

A. So far as I know, they were.
Q. The one Henry Shields made was the first one he 

made?
A. Yes, sir.
Q. Then the one Ed Brown made was the first that he 

made?
A. Yes, sir.

Cross-examination.
By Mr. Daws:

Q. Was that before or after the whipping?
A. That was after.
Q. Each of these three defendants had been beaten before 

the questions were propounded?
A. I don’t know anything about Ellington. I hadn’t 

seen him at that time.
Q. The defendants Ed Brown and Henry Shields had 

been whipped before the statements were obtained?
A. They had been whipped some, yes, sir.
Q. How long was that before they made these state­

ments ?
A. Well, at the time they made the statements there.
Q. They were whipped two or three times before any 

confessions were made at all?
A. No, they were only whipped once.
Q. That was in the jail in the city of Meridian, and you 

were present at that time? Who else was present there?
A. Cliff Dial and Guy Jack, Warren Campbell and 

myself when Henry was whipped; we four went in there, 
and Buddy Gilbert was in there when Ed was whipped.

Re-direct examination.
By Mr. Stennis:

Q. Is Mr. Campbell Warren the CaTmcery Clerk of 
Kemper County?

A. Yes, sir.



103

The Court: The objection is sustained to any statement 
[fol. 123] made at that time. The only purpose of this tes­
timony and the only part that I admit is that these parties, 
witnesses and others, didn’t suggest to these defendants 
at that time what they should say with regard to how it 
happened, nor whom they should implicate and further that 
they were not told to stick to this tale. That is in contradic­
tion of the defendants.

Mr. Clark: We suggest that you tell the jury to disre­
gard that part of the testimony.

The Court: Centlemen, you will disregard any part of 
this testimony about the jumper and other such things ex­
cept that they didn’t suggest to them what weapons were 
used and who was implicated and didn’t tell them to stick 
to this tale. The other is excluded.

(Witness dismissed.)

Mr. E. L. Gilbert, a witness for the State, in rebuttal, 
after being duly sworn, testified as follows:

Direct examination.
By Mr. Stennis :

Q. In company with Mr. T. H. Nicholson and Mr. Cliff 
Dial, did you see the defendant here, Henry Shields, in 
Meridian last Sunday?

A. Yes, sir.
Q. Did you have a conversation with him regarding the 

death of Mr. Raymond Stewart ?
A. Yes, sir.
Q. I want you to tell what was said by you or the others 

present to this defendant, Henry Shields; in other words, 
did you make suggestions to him about who was connected 
with this killing?

A. We went in there and sent and got Henry Shields; 
they brought him down to the front room and we sat down 
there and asked him a few questions and told him that we 
knew he did it.

Mr. Clark: I understand the only purpose of this is to 
show they made no suggestions.
[fol. 124] A. We didn’t make any suggestions. We ac­
cused him directly and showed him the axe and overalls 
and jumper.



104

Q. Did yon have any information then about who had 
committed the crime ?

Mr. Clark: We object to that.
The Court: I presume that he is going to say no.
A. No, sir, I did not.
Q. Did you at that time make any suggestions to him as 

to how this thing happened?
A. No, sir, not a thing.
Q. Did anybody else ?
A. No, sir.
Q. Did you do so up until after he had made statements 

to you ?
A. No, sir.
Q. After you talked to him there, did you or anyone else 

in your presence tell him that he must tell it the same way 
later ?

A. I don’t remember that. I will say “ no”  to that. We 
told him if he talked, that all we wanted was the truth, and 
if anybody else asked about it always tell that because 
that was the truth as he stated it.

Q. At that time were you inquiring as to whether any­
body else was in it or not ?

A. Yes, sir.
Q. Did he say anything about anybody else being in it?
A. Yes, sir.
Q. Did he name them?
A. He did.
Q. Who were they?
A. The Ellington negro and Ed Jones.
Q. Ed Jones ?
A. Ed is his name.
Q. Is it Ed Brown?
A. Ed Brown.

[fol. 125] Q. What is the Ellington negro’s given name?
A. He called him Yank, I think; his name is Arthur.
Q. Did you ask him to tell the truth ?
A. I told him all we wanted was the truth.
Q. Did you tell him that if anybody else was connected 

with it, you wanted their names.
A. We wanted their names; we had no idea who they 

were.
Q. State whether he said that was all who were in it.



105
A. He said that was all. We questioned him three or 

four times and he said there was no one else.
Q. After you talked to Henry Shields, you talked to Ed 

Brown too?
A. We talked to him later.
Q. Did you make any suggestions to Ed with reference 

to entering the house or anything like that?
A. Yes, sir.
Q. You had already talked to Shields, then?
A. Yes, sir.
Q. Did you ask him about the lamp chimney?
A. Yes, sir.
Q. Had Shields been asked anything about how Mr. 

Stewart’s body was placed in the seed room?
A. Yes, sir.
Q. Had he been asked anything about the jumper?
A. Yes, sir.
Q. Was Brown asked about the jumper too?
A. Yes, sir.
Q. Now, when you were talking to Shields before he had 

talked to you, did you make any suggestions to him about 
who used the death instruments or what instruments were 
used?

A. I asked him who used the axe, because we had that.
Q. Did you name any other instruments to him?
A. I don’t think that we did; I did not.
Q. You had the axe there with you?

[fol. 126] A. Yes, sir. I had it in my hand when I was 
questioning him.

Cross-examination.
By Mr. Daws:

Q. Did you talk to Yank any?
A. No, sir.
Q. Ed Brown and Henry Shields had been whipped just 

before this happened ?
A. I couldn’t swear about Henry.
Q. Can you swear about Ed?
A. Yes, sir.
Q. You were not present if Henry was whipped?
A. I was there, but I wasn’t where it was.
Q. Where the whipping was ?



106

A. It sounded like whipping.
Q. They had Henry Shields in there ?
A. Yes, sir, but I couldn’t swear he was in there then.
Q. When you asked Ed after he was whipped and during 

the time he was being whipped, you asked him about 
whether or not he used the axe ?

A. I asked him what he used.
Q. He told you what?
A. He told me he used the foot axe; I believed he de­

scribed it as a mad-axe.
Q. You told him then when you left that if anyobody 

else asked him about it, he must always tell just what he 
told you all because that was the truth?

A. I didn’t say that.
Q. I will ask the stenographer to read that question and 

answer to us. (Stenographer reads) That is the way I 
understood the answer, Mr. Gilbert. Now, how long did 
you all stay there ?

A. We stayed there about an hour and a half, I imagine.
Q. How many times was Ed Brown whipped while you 

were there ?
A. Well, he was whipped one time, but I don’t know how 

[fol. 127] many intervals there were. We told him any 
time he wanted to talk, we would let him up, and he got up.

Q. There were two or three intermissions or skips be­
tween the whippings ?

A. Yes, sir.
Q. Did you tell him that Henry had already told it?
A. Yes, sir.
Q. He finally admitted it himself ?
A. Yes, sir; he told the same thing Henry told.
Q. He didn’t tell that before he was whipped?
A. He told some before he was whipped.
Q. What did he say about it ?
A. Do you want me to start at the first? He came down­

stairs and he didn’t know that Henry had been whipped, 
I don’t think, unless he heard it. We asked him some ques­
tions and told him we knew he was in it, that Henry had told 
the truth about it, and he said he. didn’t know anything 
about it. Then we let him in there where Henry was, and 
when he saw Henry he said: “ That boy has lied on me;
he done it.”  We asked why he knew that he did it, and he 
said he was passing by or come by there and saw him.



107
Q. Saw him at the house ?
A. Yes, sir.
Q. Mr. Stewart’s house?
A. Yes, sir. He said that the boy was lying on him.
Q. What did you tell Ed when you left with reference to 

telling anyone else ?
A. I didn’t have anything to say to Ed.
Q. Did anybody in your presence that you remember!
A. Mo, sir.

Eedirect examination.
By Mr. Stennis:

Q. You say that was before Ed was whipped that he told 
you there in Shields’ presence that Shields did it and that 
he saw him?
[fol. 128] A. Yes, sir. We further asked how he saw 
them, and he said that he come by close to the back steps 
or window as he came by the house. We asked him why 
he hadn’t told that before, and he said they told him if he 
did, they would kill him and for him not to say a word 
about it.

Q. Who had told him that ?
A. He said Henry, and I don’t believe he had implicated 

Yank at that time, but that was before any whipping.

(Witness dismissed.)

Mr. Cliff D ial, a witness for the State, in rebuttal, after 
being duly sworn, testified as follows:

Direct examination.
By Mr. Stennis:

Q. After the death of Mr. Raymond Stewart did you en­
deavor to locate the perpetrators of this killing?

A. I did.
Q. On Friday night were you present when certain 

parties had the defendant Yank Ellington?
A. I was.
Q. Tell whether or not you took up for Yank and pro­

tected him.



108

A. I did. I told them that Mr. Stewart had asked me to 
take charge of the place, and I didn’t want any of the 
negroes beat np and that I didn’t believe this negro was 
guilty and I would rather they wouldn’t beat him np.

Q. That was on Friday night?
A. Yes, sir.
Q. After yon intervened, what became of Yank?
A. He went home, or I suppose he did. I got them to 

turn him loose.
Q. He went on off then?
A. Yes, sir.

[fol. 129] Q. I believe you arrested Ed Brown there the 
afternoon that the body was discovered?

A. Yes, sir; I did.
Q. You carried him to the Meridian jail?
A. I brought him to DeKalb.
Q. You later carried him to Meridian?
A. Yes, sir.
Q. Where did you find Henry Shields ?
A. In Meridian.
Q. Do you know the name of the negro in whose house 

you found him?
A. Yes, sir; I found him at Ozie Carr’s house.
Q. When was that?
A. Friday evening about 2:30 or 3:00 o ’clock; we got in 

there around 11:00 or maybe 12:00 o ’clock.
Q. Did you arrest him then?
A. Yes, sir.
Q. What, if anything, did he tell you about why he was 

down there, and what if anything did he say he had done 
to a negro by the name of Bob Cross?

A. He said first that he knocked his wife in the head 
with an axe and had shot Bob Cross.

O. Do you know whether or not Bob Cross had been 
shot?

A. They say he hadn’t.
Mr. Clark: We object to that.
The Court: Sustained.
Q. Have you seen Cross yourself?
A. No, sir.
Q. What did you do with Shields then?
A. We taken him to police headquarters and Mr. Har­

bour taken his finger-prints and then we carried him to jail.



109
Q. Sunday afternoon in company with Mr. Buddy Gil­

bert and Mr. T. H. Nicholson, did you see Shields and 
Brown in the jail in Meridian?

A. Yes, sir.
[ol. 130] Q. At the time you my Shields and Brown there, 
before you talked to Shields, did you know then who the 
perpetrators of the killing were ?

A. No, sir; we thought we knewed Shields was guilty after 
we found the axe and jumper and after the way he done.

Q. Did you have the axe and jumper there with you?
A. Yes, sir.
Q. Did you have any knowledge of how it happened?
A. No, sir.
Q. In talking to Shields about it, did you make sugges­

tions to him about how it happened?
A. No, sir. I told him myself he didn’t have to tell it. 

I said: “ We have got plenty of evidence on you to break 
your neck, but we want you to tell who was with you.”

Q. Did you confront him with the axe and the jumper?
A. Yes, sir. He said it was his axe, but he denied owning 

the jumper. Later on he said it was Ed Brown’s jumper 
and that he put it on to tote Mr. Raymond into the seed 
room where they threw him.

Q. That was Shields who said that?
A. Yes, sir.
Q. When you were talking to Shields there, did you sug­

gest to him anything about what kind of weapons he used?
A. No, sir; we asked what he used to kill Mr. Stewart.

Q. Did he tell you ?
A. Yes, sir. He said they used a mad-axe, a chisel, and 

that standard was in there. Somebody took that out of the 
house; it goes in a hay frame. It was put away out there, 
and somebody took it out.

Q. What about the foot-axe?
A. We never did find it. He said there was one used, but 

we didn’t see it there anywhere.
Q. You couldn’t find it?

[fol. 131] A. No, sir.
Q. Going back to the time that you talked to Shields, just

tell whether or not you suggested to him------ I believe you
asked him about the weapons; did you suggest anything 
about the lamp chimney to him?



110

A. Yes, we asked how come that lamp chimney was there, 
and I think Henry said one of them knocked the chimney 
off and it broke on the floor. It was broke all to pieces on 
the floor.

Q. After you talked to Henry, did yon talk to Ed Brown?
A. Yes, sir.
Q. What did he say about it before there was any 

whipping?
A. He said he wasn’t guilty,
Q. Were he and Henry together there when he said that?
A. Yes, sir. Henry kind of backed up from Ed and said: 

“ Don’t let Ed bother me.’ ’ Ed kind of stepped up like he 
was going to hit him, and I said: “ Get back; you can’t 
bother that boy. ’ ’

Q. Do you remember anything Brown said there before 
the whipping about whether or not Henry was guilty?

A. Yes, Ed said he come along there, he and his wife, 
that night from Fannie Little’s, and that they seen them 
come out the back.

Q. Who was that?
A. Yank Ellington and Henry.
Q. Henry Shields?
A. Yes, sir.
Q. They told—he told you Henry Shields was there that 

night?
A. Yes, sir.
Q. Did any of you suggest to him anything about this 

foot-axe?
A. No, sir. We just asked what he knew about what they 

used to kill Mr. Stewart with.
Q. When you left there what did you say or anyone else 

in your presence say to any of them about telling it again?
A. We told them that if that was the truth to tell it, 

that all we wanted was the guilty parties and we didn’t 
want an innocent man in this thing. We told them if it was 
[fol. 132] the truth to stick to it and if it wasn’t we didn’t 
want an innocent man.

Q. Did you ask them if anyone else was in it ?
A. We asked who was there at the killing.
Q. Did you talk to Yank after that?
A. Yes, sir.
Q. You took him into custody, I believe?
A. Yes, sir.



Ill

Q. Where did you find him?
A. At old man Campbell’s.
Q. What state was that in?
A. Alabama.
Q. When was it that you found him?
A. Monday morning.
Q. Where did you carry him?
A. To Meridian.
Q. On the way down there, did you strap him some ?
A. Yes, sir. He denied it. He said that Ed and them 

were in it but that he stood around and held the light, and 
then he finally told what I thought was the truth about the 
thing.

Q. Did he say anything about holding the light before 
he was whipped?

A. Yes. He told them that night when they were after 
him that he seen Ed Brown kill him; that was Friday night.

Q. Yank told them that?
A. Yes, sir. He said he knew then it wouldn’t do to tell 

all of it.
Q. When did you get to the Meridian jail with him?
A. About 2 :00 o ’clock, I reckon.
Q. You were not there Monday afternoon when Mr. 

Adcock talked to them?
A. No, sir.
Q. When you left Yank or before you left him, did you 

tell him that he had to tell it the same way again ?
A. No, sir.

[fol. 133] Q. What did you say to him, if anything?
A. I don’t remember if I told Yank anything about that ; 

I told him all we wanted was the guilty man.
Q. After you talked to those two boys in Meridian Sun­

day morning or afternoon, you went and arrested Yank?
A. Monday morning, yes, sir.

Cross-examination.
By Mr. Clark:

Q. Now, when you went up there Friday night and be­
friended Yank, who had charge of him then?

A. A bunch of them was there; I expect it was 20 men.
Q. Were they whipping him?
A. It first started around the fire there. Sam Land and 

I went by the houses and told the negroes to come up there



112

and then went down to Dan Camp’s and came back and they 
had Yank and Manny Brooks.

Q. Did they whip them in your presence?
A. Yes, sir.
Q. Did they hang him there?
A. Well, you know they didn’t hang him. They pulled 

him up but they didn’t hang him.
Q. Of course, they didn’t kill him?
A. No, sir.
Q. How many times did they pull him up?
A. I didn’t see them pull him up but one time.
Q. Did they whip him any after they pulled him up?
A. Yes, sir.
Q. When did you first offer your friendship to him?
A. I begged them before they started not to beat the 

negroes up.
Q. But they wouldn’t listen to you?
A. No, sir.
Q. They whipped them a little anyhow?
A. Yes, sir.

[fol. 134] Q. A right smart?
A. Not too much for a negro; not as much as I would 

have done if it was left to me.
Q. They whipped him and hung him up there, and you 

asked them to let him loose?
A. Yes, sir.
Q. And he went on home then?
A. I suppose he did.
Q. He left there?
A. Yes, sir.
Q. What did you say he told them before he left there?
A. That he seen Ed Brown kill Mr. Stewart.
Q. Did anybody ask him if he seen Ed kill him?
A. Yes, sir, some of the boys did.
Q. They asked if he didn’t see Ed kill him, and he said 

yes?
A. Yes, sir.
Q. That was after the whipping and after he was hung 

up there?
A. Yes, sir.
Q. He would have said that he did it if he had been asked?
A. I don’t think so; I think he would have had better 

sense than that.



113
Q. When was the next time that you saw him?
A. Monday morning.
Q. You went down to the Meridian jail and saw Ed 

Brown and Henry Shields?
A. I didn’t see Henry; I didn’t see Ed Brown Monday, 

but I saw Henry.
Q. When did you first see Ed Brown?
A. Sunday was the next trip down there.
Q. Ed denied it at first, didn’t he?
A. Yes, sir.
Q. He said that he wasn’t guilty?
A. Yes, sir.

[fol. 135] Q. Shields denied it too?
A. Yes, sir, st first.
Q. What did you do to them then?
A. We kind of warmed them a little—not too much.
Q. They said then that they were guilty?
A. Yes, sir.
Q. But they didn’t say it until after you warmed them 

up?
A. No, sir.
Q. Did they put Ellington into it?
A. Yes, sir.
Q. Did anybody ask them if Ellington was in it ?
A. No, sir.
Q. They just voluntarily told that?
A. They just told who was in it ; that was all we wanted 

to know.
Q. Do you remember asking if it wasn’t a fact that 

Ellington used an axe on him?
A. He used an axe?
Q. I mean Shields. Did you ask Ed Brown that?
A. I think he made that in one of his confessions.
Q. You wouldn’t be positive about that?
A. No, sir.
Q. Did anybody in your crowd ask if Ed used a foot-axe ? 
A. They claimed one of the boys said he had a mad-axe.
Q. You had missed that out of the wood box there?
A. Yes, sir.
Q. You knew that Mr. Stephens had one there?
A. Yes, sir.

8—6653



114

Q. And some of you asked if Ed used it!
A. They said Ed carried it.
Q. Somebody in the crowd there suggested or asked him 

if Ed used the mad-axe?
A. I don’t remember.
Q. Did anybody in the crowd suggest to him that Henry 

ffol. 136] Shields used an axe on him!
A. Yes—no, I don’t remember Ed saying that Henry 

brought the axe with him.
Q. Yon don’t know whether anybody asked Ed if he hit 

with the axe!
A. No, sir.
Q. You went back and arrested Yank on what you got

from these parties in Meridian!
A. Yes, sir.
Q. From Ed Brown and Henry Shields!
A. Yes, sir, absolutely.
Q. Where was it you found Yank when you went after 

him!
A. Down in Alabama.
Q. How far was it from Mr. Stewart’s place?
A. Three or four miles.
Q. What was he doing there!
A. Sitting down.
Q. You carried him on to Meridian?
A. Yes, sir.
Q. What did you say you did to him on the way to 

Meridian?
A. We stopped on the way and got water and stopped 

over there and talked to him about the thing, and then we 
strapped Yank a little bit.

Q. Did you tell him what the boys had told in Meridian?
A. Yes, sir.
Q. He said that was so?
A. Yes, sir.
Q. He admitted it himself after he had been strapped?
A. Yes, sir.
Q. He denied it up until then?
A. He said Ed was there.
Q. He denied Shields’ part in it and he denied Iris own 

part. Now, I don’t remember whether Mr. Stennis asked 
or not, but when you left the jail there Sunday, what did 
[fol. 137] you say, if anything or what did any of the



115
parties say to these defendants about telling the same thine 
afterwards ?

A. I think you asked that a while ago and I answered it.
Q. I forgot what you said.
A. We told them we wanted the guilty parties, and if 

that was the truth that was all we wanted.
Mr. Clark: We move to exclude all of the testimony of 

this witness for the reasons heretofore given.
The Court: I exclude everything hut the statement of 

this witness, if he did make such a statement, that he didn’t 
lead this man in suggesting to him what weapons were 
used or who to implicate or to stick to the same talk. Every­
thing that the boy told him is excluded.

(Witness dismissed.)

Dk. W all, a witness for the State, in Rebuttal, being re­
called, testified as follows:

Direct examination.

By Mr. Stennins:
Q. Doctor, this jumper that has been introduced here, 

did you see it and make an examination of it some time last 
week?

A. Sunday afternoon.
Q. Where was it then?
A. Up in the Mayor’s office at Scooba.
Q. Did you examine the blood stains on that jumper last 

Sunday afternoon?
A. Yes, sir.
Q. Tell whether or not the blood stains were fresh then.
A. Yes, sir. I figured they wasn’t over at least three 

days of four days; it couldn’t have been longer than that.
Q. In your opinion, they couldn’t have been over three 

or four days old at that time?
[fol. 138] A. Yes, sir, because at the time there were some 
clots here; that is just barely dried out now. When a gar­
ment that has blood stains on it is folded up or wadded up, 
the fluid part does not evaporate as fast as it would when 
hanging out like this. The water in blood in a normal per­
son runs anywhere from 85 to 90 per cent and the rest of 
it is solid.



116
Q. If it was wadded up, it might last for several weeks 

then!
A. This showed moisture on it on Sunday afternoon.
Q. It showed signs of fresh blood?
A. Yes, sir.
Q. If it had been wadded up or folded up in a place for 

something like two months, what would have been the con­
dition of the blood then?

A. The chances are in that length of time it would be 
dried pretty good, but all blood after it dries out takes on 
a rusty brown hue.

Q. It wouldn’t have any color after that?
A. It has that now.
Q. It didn’t have it Sunday afternoon?
A. Yes, sir.
Q. Did you notice at that time any saliva or anything 

like that on this coat?
A. Yes, sir; it was dried about like that now. That could 

be saliva or the discharge from a person’ t nose either.
Q. You made a rather thorough examination of this 

Sunday?
A. Yes, sir.
Q. You say the blood on it was not more than three or 

four days old then?
A. No, sir, it wasn’t. There was moisture in the garment 

at that time.

Cross-examination.

By Mr. Clark:
Q. I believe you say that after a certain length of time 

[fol. 139] blood takes on a brownish hue.
A. Yes, sir.
Q. Well, how does that look to you?
A. That looks more like it was from iron.
Q. Blood turns to that color after it gets to a certain age?
A. Yes, sir, it turns to a rusty brown color.
Q. And that looks like it was from iron?
A. Yes, sir.
Q. That is the same color as blood after it has been on 

a garment for some time?
A. I don’t know about that.
Q. That doesn’t look so brown there, does it?



117
A. No, sir.
Q. You can’t tell whether that is human blood or hog 

blood, can yon?
A. No, sir.
Q. One man’s opinion about blood is about as good as 

another’s ?
A. As to whether it is human or not?
Q. Yes, sir. That is true unless you use a microscope 

or something?
A. Yes, sir.
Q. This spot also is a brownish color?
A. I don’t know how this has been folded up. This is 

fresh blood here. That evidently was wadded up so that 
the fluid couldn’t evaporate.

Q. It it was kept that way three or four months, we will 
say, it would retain some of that fluid where the air couldn’t 
get to it?

A. It would be dried out. Where it is clotted, that dark 
blot in a lump there, it would show up more than where the 
fluid was spread out. That is the best that I can tell you.

Redirect examination.

By Mr. Stennis:
Q. Doctor, you examined this garment that Sunday and

saw that blood; now, in your opinion as a Doctor, is that 
[fol. 140] fresh blood or had it been in there seven or eight 
weeks wadded up ?

A. No, sir, I shouldn’t think it had; in fact, I know it 
hadn’t been there that long.

Q. In your opinion, it hadn’t been in there over three 
or four days ?

A. Something like that. I have had a good deal of ex­
perience along that line.

(Witness dismissed.)

The State rests.

The end.

Reporter’s certificate to foregoing transcript of testi­
mony omitted in printing.



118

[fol. 141] [File endorsement omitted]

I n  Circuit C ourt of K emper County  

I nstruction- for th e  S tate—Filed April 6, 1934 

No. 1
The Court instructs the Jury that Murder id the killing od 

a human being without authority of law and by any means 
and in any manner, when done with a deliberate design to ef­
fect the death of the person killed; and if the Jury believes 
from the evidence in this case, beyond a reasonable doubt, 
that the defendants, Ed Brown, Henry Shields and Yank 
Ellington, so killed the deceased, Raymond Stuart, then 
the Jury will find the defendants guilty of Murder.

Given.

[fol. 142] Instruction for the State

No. 2

The Court instructs the Jury for the State that Murder 
is the killing of a human being without authority of law 
by any means or in any manner, when done with the delib­
erate design to effect the death of the person killed. If the 
Jury believes from the evidence in this case beyond a rea­
sonable doubt, that the defendant Ed Brown, and Yank 
Ellington so killed the deceased Raymond Stewart, and that 
the defendant Henry Shields was present, aiding, abetting 
and encouraging said killing as aforesaid, then the Jury 
will find the Defendants, Ed Brown, Henry Shields and 
Yank Ellington, guilty of Murder.

Given.

[fol. 143] Instruction for the State

No. 3

The Court charges the Jury for the State that a Criminal 
Conspiracy is an agreement of understanding planned and 
feloniously entered into by and between two or more per­
sons whereby they confederate and agree to do an unlawful 
act, and the Jury id further charged for the State that a



119

criminal conspiracy may be proven by circumstantial evi­
dence direct proof, or the acts and conduct of the alleged 
conspirators.

Given.

[fol. 144] Instruction for the State

No. 4

If you believe from the evidence beyond a reasonable 
doubt that the defendants Ed Brown, Henry Shields and 
Yank Ellington, unlawfully and feloniously conspired to 
kill the deceased Raymond Stuart, then each is responsible 
for the act or acts, if any, of the other, done in pursuance of 
said conspiracy and if you believe from the evidence be­
yond a reasonable doubt that in persuanfe of said conspir­
acy, if any there was, the defendants or either of them, will­
fully, unlawfully, feloniously and of malace aforethought, 
killed the deceased Raymond Stuart in any, manner, than 
all are guilty of Murder under the law and you should so 
state in your verdict.

Given.

[fol. 145] Instruction for the State

No. 5

The Court instructs the jury for the State that you do 
not have to return the same verdict as to all the defendants.

If the Jury believes from the evidence in this case be­
yond a reasonable doubt that the defendants Ed Brown, 
Henry Shields and Yank Ellington are guilty thay may 
return any of the following verdicts to-wit:

“ We, the Jury find the defendant (or defendants nam­
ing them) guilty as charged in the Indictment,”  in which 
event it will be the duty of the Court to sentence the de­
fendant (or defendants) to be hanged.

Or “ We, the Jury, find the defendant (or defendants) 
guilty as charged in the Indictment and fix the punishment 
at life in the State Penitentiary,”  in which event it will 
be the duty of the Court to sentence the defendant (of de­
fendants) to imprisonment in the State Penitentiary for 
life.



120

Or; “ We, the Jury, find the defendant (or defendants) 
guilty as charged in the Indictment, but disagree as to the 
punishment,”  in which event it will be the duty of the 
Court to sentence the defendant (or defendants) to impris­
onment in the State Penitentiary for life.

But if there is left in your mind a reasonable doubt grow­
ing out of the evidence, or for the like of evidence as to 
whether the Defendant Ed Brown, Henry Shields and Yank 
Ellington are guilty or not, your verdict as to such defen­
dant or defendants about whose guilt you have a reason- 
[fol. 146] able doubt from the evidence shall be:

“ We, the Jury find the defendant (or defendants nam­
ing them) not Guilty.”

Given,

[fol. 147] [File endorsement omitted]

I n  Circuit  Court of K em per  C ounty  

Instruction for Defendants—Filed April 6, 1934 

No. 1

The Court charges the jury for the defendants that the 
fact that the three defendants are being tried under one 
indictment and one trial does not mean that you must re­
turn the same verdict as to all three. In other words, it is 
within your province and your province alone to deter­
mine the guilt or innocence of each of the defendants, you 
may, if you see fit, and if you believe from the evidence 
beyond all reasonable doubt that each of the defendants are 
guilty, return a verdict of guilty against each of the de­
fendants, fixing the punishment as to each in the manner as 
set out in another instruction given in this case. Or, if 
there is a reasonable doubt in your mind from the evi­
dence of lack as to the guilt of each of the defendants it 
will be your sworn duty to return a verdict of not guilty, 
as to each. Or, if you believe one of the defendants are 
guilty and as to the other two there is a reasonable doubt 
in your mind as to their guilt, you may return a verdict 
of guilty as to one who you believe beyond all reasonable 
doubts to be guilty, and it will be your sworn duty to 
return a verdict as to the other two. Or, if you believe



121

beyond all reasonable doubts from the evidence that there 
are two of the defendants guilty, and as to one there is 
a reasonable doubt in your mind as to his guilt, you may 
return a verdict of guilty as to two of the defendants, and 
it will be your sworn duty to return a verdict of not guilty 
as to the defendant about which there is a reasonable 
doubt as to his guilt.
[fob 148] Further the Court charges you that it is within 
your province to fix a punishment of such defendant or de­
fendants as you may believe beyond all reasonable doubts 
is guilty. You are not bound to fix the same punishment 
as to each defendant or defendants as you find guilty 
by your verdict. The punishment is left to your discretion 
and it is your province and your province alone to fix the 
punishment as to each of the defendants that you find 
guilty a separate instruction will be given by the Court 
touching the punishment that may be meted out, in event 
of a verdict of guilty.

The Court instructs you further that it will be your duty 
in considering your verdict as to the three defendants 
being tried, to consider the question of the guilt or inno­
cence of each of the defendants separately. In other words, 
it is your duty not to pass on the guilt or innocence of all 
three at the same time, but it is your duty to single the de­
fendants out, passing at one time on the guilt or innocence 
of the defendant Ed Brown, and at onother time of the 
guilt or innocence of the defendant Henry Shields, and at 
another time on the guilt or innocence of of the defendant 
Yank Ellington. The fact that the court has named the 
defendants in order as above, does not mean that you shall 
consider their guilt or innocence in the order as named 
above, but it is your province to determine which shall be 
considered first. And you are charged that you must con­
sider their guilt or innocence separately, one at a time 
and not as a class.

The Court charges you further that in event you find 
either or all of the defendants guilty, then it is in your 
province to fix a punishment as to such defendant or de­
fendants as you may find guilty. It is not incumbered upon 
you to fix the same punishment as to each but the manner 
of punishment of each defendant found guilty is left solely 
to your determination. You don’t have to have any rea- 
[fol. 149] son for making distinction as to punishment in



122

event that you find more than one guilty, but may, in the 
exercise of your own free will and judment, fix a punish­
ment as to such defendant or defendants as found guilty, 
whether the punishment be common as to, each or to be 
different as to each.

Given.

[fol. 150] Instruction for the Defendants

No. 2

The Court instructs the Jury that in the final analysis 
you are the judges and not the Court of whether you shall 
consider the allege- confessions and you are instruc-ed if 
the evidence is such that you are uncertain as to whether 
such confessions were induced by threats coercoin or force 
and are not true than you are not to consider same and 
this is true even though you believe no force or threats or 
coercion was used to obtain all the confessions, but if you 
are uncertain as to whether or not such threats, forced, 
coercion were in the minds of the defendants as a result of 
the force formally used against them, and that the confes­
sions are not true.

Given.

[fol. 151] Instruction for the Defendants

No. 3

The Court charges the Jury for the defendants an Indict­
ment in this case is not evidence of guilt and you will not 
so consider it.

Given.

[fol. 152] Instruction for the Defendants

No. 4

The Court charges the Jury for the defendants, the 
burden is on the State of prove beyond every reasonable 
doubt to the satisfaction of the minds of each and every 
Juror, that the defendants are guilty as charged in the In­
dictment, and after considering all the evidence in the case,



123

or the lack of evidence, that there is a reasonable doubt 
in your minds as to the guilt of the defendants, then it will 
be your sworn duty to return a verdict of not guilty, and 
this is the law as to each of the defendants separately.

Given.

[fol. 153] Instruction for the Defendants

No. 5

The Court charges the Jury for the defendants, that 
under the law the defendants are presumed to be innocent 
of the crime charged in the indictment and every element 
thereof; that the presumption is not a mere legal techni­
cality but is a substantial right that goes with the defen­
dants at every stage of the trial, and rises up to combat the 
testimony of the witnesses which tend to prove the defen­
dants guilty, and on this presumption alone it is your 
sworn duty to return a verdict of not guilty unless you be­
lieve beyond every reasonable doubt that the defendants 
are guilty, and this instruction applies to each of the de­
fendants separately.

Given.

[fol. 154] Instruction for the Defendants

No. 6

The Court charges the jury for the defendants that you 
are the sole judges as to the weight of the testimony and 
credibility of the witnesses, and after consideration of the 
evidence in the case, that if you believe from the evidence 
that any witness has willfully, knowingly and corruptly 
sworn falsely to any material fact in the case then you may 
disregard the entire testimony of such witness, as you see 
fit.

Given.

[fol. 155] Instruction for the Defendants

No. 7

The Court charges the jury for the defendants, that be­
fore you may return a verdict in this case as to the three



124
defendants, all twelve of you must agree as to the guilt or 
innocence as to each of the three defendants separately. 
If after considering all the testimony in the case or the lack 
of testimony, there is a reasonable doubt in the mind of 
one or more Jurors as to the guilt of either or all of the 
defendants, then it will be the sworn duty of such juror or 
jurors after a full and free consultation with his fellow 
jurors, to vote for an acquital as to such defendant or de­
fendants as to the guilt which they may he a reasonable 
doubt, even though such action may result in a hung jury 
or mistrial as to one, two or each of the defendants.

Given.

[fol. 156] Instruction for the Defendants

No. 8

The Court instructs the jury for the defendants that a 
confession solicited by threats or coertion or force intimi­
dation is not legal evidence and if you have any reason­
able doubt the so called confessions of the defendants re­
sulted from threats, coertion force or intimidation and are 
not true then you are not to consider same as evidence 
against the defendants.

Given.

[fol. 157] Instruction for Defendants

No. 9

The Court instructs the jury for the defendants that all 
the testimony in regard to the finger prints and dying dec­
larations should be subjected to the closest scrutiny by the 
jury and should be considered with great care and caution.

Refused.

[fol. 158] Instruction for the Defendants

No. 10

The Court instructs the jury that where it is once shown 
that force, threats or intimidation caused one to confess, it 
is the presumption of law that any confession made there-



125

after was results of threats, intimidation and it is the duty 
of the State to convince the Jury beyond every reasonable 
doubt and to every moral certainty that any later con­
fessions were not the results of threats, force or coertion 
and if your minds as to this waver and are uncertain, it 
is your duty to reject any substantive that might have been 
made by the defendants and in passing on this question, 
you are to take into consideration the fact that the defend- 
ants_ are illiterate negroes and it is easy to obtain con­
fession from such class of people.

Refused.

[fols. 159 & 160] In C ircuit  C ourt of K emper C ounty  

P etition  for A ppeal— Filed May 5, 1934 

[Title omitted]

To Hon. H. C. Anderson, Clerk of said Court:
The undersigned Henry Shields, Ed Brown and Yank 

Ellington, respectfully represent unto you, at the March 
1934 Term of said Court of said County, they were charged 
in a joint Indictment for the Murder of one Raymond Stew­
art, and was brought to trial at said term; that they plead 
Not Guilty and a trial resulted and the three being tried 
jointly under one Indictment and the result of said trial 
was guilty as charged. The trial Judge, thereupon, sen­
tenced'each of them to Death by hanging, and the date of 
the execution fixed as May the 11 1934.

They respectfully represent that they desire an appeal 
from said judgment and sentence to the Supreme Court of 
the State of Mississippi as provided in the Statute of the 
State of Mississippi.

Respectfully submitted, Henry Shields, Edd Brown, 
Yank Ellington, by Jno. A. Clark, Attorney, by 
D. P. Davis, Attorney.

[File endorsement omitted.]



126

[fol. 161] In Ciecuit Cotjbt of K em pee  County  

[Title omitted]

P au per ’s Oath—Piled May 7, 1934
Personally appeared before me the undersigned authority 

in and for Lauderdale County, Mississippi, Henry Shields, 
Ed Brown, and Yank Ellington, who being by me duly 
sworn to speak the truth, on oath say;

They say that they were convicted of the crime of Murder 
at the March 1934 Term of Circuit Court of Kemper 
County, Mississippi, and have taken an appeal to the Su­
preme Court of the State of Mississippi, in the manner as 
provided by law. They each severally say that they are 
unable to make an appeal bond, and unable to deposit a 
sufficient sum of money to cover cost, and this affidavit is 
made in order that they may have an appeal without giving 
bodn for cost.

Arthur B. Ellington (Yank), Ed Brown, Henry 
(his X mark) Shields.

Sworn to and subscribed before me by Henry Shields, 
Ed Brown, and (Yank) Arthur B. Ellington on this the 
5th day of May 1934. Willis M. Taylor, Circuit Clerk, 
Lauderdale County, Mississippi. (Seal.)

[File endorsement omitted.]

[fol. 162] Clerk’s certificate to foregoing transcript omit­
ted in printing.

[fo l. 163] S upreme Court of M ississippi

Ed B row n , H enry S hields & Y a n k  E llin gton , Appellants,
v.

T he  S tate, Appellee

A ssignm ent of E ebors— Piled Nov. 3, 1934

Appellants assign the following errors, to-wit:
1st. The verdict rendered was contrary to and against 

the evidence as covered by the law and instructions of the



court, especially instructions number one and number two 
offered by the state.

2nd. The court erred in refusing instruction number nine 
and number ten offered by appellants.

3rd. The court erred in excluding testimony offered by 
appellants which was objected to by the state, especially 
in refusing to allow appellant Ed Brown, on page 47 of the 
record, to finish the statement which he had started to tell 
that deceased made to him on the afternoon prior to the 
killing that night.

4th. The court erred in permitting any testimony pur­
porting to have been a confession of either of appellants. 
We especially refer to the testimony of J. H. Adcock, begin­
ning on page 19; the testimony of Brice Stephens beginning 
on page 35; the testimony of Eugene Stephens beginning on 
page 39; the testimony of T. H. Nicholson beginning on 
page 110; the testimony of E. L. Gilbert beginning on page 
115; the testimony of Cliff Dial beginning on page 120.
[fol. 164] 5th. The court erred in admitting the testimony 
of T. D. Harbour beginning on page 102, this being testi­
mony touching finger prints.

[File endorsement omitted.]

127

[ fo l. 165] I n  th e  S upkeme Court oe M ississippi 

[Title omitted]

M in u te  E n try  op A rgument  and S ubmission—Nov. 26,1934
Argued by John A. Clark for the appellants and W. D. 

Conn, Jr., for the State; submitted on briefs of John A. 
Clark and D. P. Davis for the appellants and W. D. Conn 
Jr., for the State.

[fol. 166] In th e  S upreme C ourt op M ississippi 

[Title omitted]
Opin io n—Filed Jan. 7, 1935 

In Banc: Cook, J.
The appellants, Ed Brown, Ijlenry Shields, and Yank 

Ellington, were convicted of murder in the Circuit Court of



128

Kemper County and were sentenced to be hanged, and from 
this conviction and sentence this appeal was prosecuted.

Raymond Stewart lived alone in a small farm house in 
Kemper County. On Friday, March 30th, 1934, neighbors 
of the said Stewart discovered him lying unconscious in a 
side room of this house. In this room there was a pile of 
cotton seed near the body, and there was an open tool chest 
with blood on it in this room or an adjoining hall. Blood 
was also sprinkled on certain parts of the wall, and there 
was a large stick and parts of a lamp chimney and the bowl 
of a lamp, covered with blood, lying on the floor. Stewart 
died before a doctor arrived, and upon investigation it was 
found that his body had been brutally beaten and bruised. 
There was a severe wound on the shoulder which the doctor 
testified could have been made with an ordinary axe or 
heavy club, his collar bone was broken, his shoulder burst 
in two places, one arm was broken in several places, the 
skin was off his right cheek, the skull was fractured four 
or five times and punctured behind one ear; there was a bad 
cut in front of the left ear and the bones in the top of his 
head were crushed into small pieces. There was a percep­
tive odor of kerosene in the room, and a lamp wick with 
[fol. 167] both ends charred and burned. A Chisel and a 
large stick, called a wagon standard, which were found in 
the room were blood stained. At the time of the murderous 
assault on Mr. Stewart was committed, from which he died 
on March 30th, 1934, the circuit court of Kemper County 
was in session, and the appellants were indicted for the 
murder on April 4th, 1934, and were placed on trial on 
April 6th, 1934.

At the trial there was testimony to the effect that shortly 
after the homicide and investigation was made at the home 
of Henry Shields, one of the appellants, and a jumper with 
gray hairs and blood on the back of it was found in a bin 
of clothes, and partially concealed in a wood pile in the 
yard, there was found an axe with blood on it.

The sheriff of Kemper County was offered as a witness 
to testify as to confessions made in his presence by each of 
the appellants on the Monday night following the death of 
the deceased on Friday. When these confessions were first 
offered in evidence counsel for the appellants suggested 
that a preliminary examination as to their competency be 
conducted in the absence of the jury. Thereupon the jury



129

was excluded, and the witness was fully examined by coun­
sel for the state and the defendants. The witness testified 
that he assured each of the defendants that he would pro­
tect them from harm from outside sources, that no threats 
of violence were made against them, no force or intimida­
tion used, and no hope or promise of reward or inducements 
of any kind held out to them; that they were repeatedly ad­
monished to tell only the truth, and that the statements 
were freely and voluntarily made. The Appellants cross- 
examined this witness but offered no evidence to contradict 
his testimony that the confessions were free and voluntary. 
On this cross examination it was developed that the sheriff 
had heard rumors that the appellants had been previously 
whipped and had confessed, and it was further developed 
that Henry Shields, one of the appellants, was limping 
when he came into the room where the confession was made, 
[fol. 168] and stated that he could not sit down for the 
reason that he had been strapped pretty hard. The sheriff 
further testified that he asked the appellants if they knew 
that under the law they might be hanged if they were found 
guilty, and they replied that they knew that fact.

Upon this testimony the trial judge ruled that the con­
fessions were freely and voluntarily made and were ad­
missible, and thereupon the witness testified that each of 
the appellants first confessed to him separately, and that 
they repeated the confessions in the presence of each other 
and in the presence of himself, the sheriff of Lauderdale 
County, Eugene Stevens, a Meridian minister, and several 
deputy sheriffs.

With the exception of a dispute between them as to who 
first entered the room where the deceased was sleeping and 
who struck the first blow, and some minor details, the state­
ments of the three appellants, as detailed by this witness, 
were substantially the same. The confession of Henry 
Shields was substantially as follows: That he met the
appellants, Brown and Ellington, in the afternoon before 
the killing, and they informed him that they were going to 
kill Mr. Stewart for the purpose of securing certain money 
which they claimed he owed them; that each offered him 
$12.00 to assist them, and he accepted the proposition; that 
it was agreed that they would meet at the home of Brown

9—6653



130

about midnight following, which they did; that they then 
discussed the proposed killing and agreed upon a plan, and 
then went to the house of Mr. Stewart; that he and Elling­
ton went to the west end of the house and entered through 
a door leading directly into the room where Stewart was 
sleeping, while Brown entered at the back of the house and 
waited with an axe which he secured from a tool box; that 
Ellington entered the room first and struck Mr. Stewart the 
first blow with a stick; that Stewart jumped up and made 
his way into the hall while they lighted a lamp and fol­
lowed; that Ellington struck Stewart again in the hall, ans 
in the scuffle broke the lamp chimney, and that Ed Brown 
[fol. 169] then struck him with an axe, knocking him to the 
floor. He further stated that Ed Brown had the key to a 
safe in the house, and that after Stewart was knocked down 
in the hall Brown opened the safe and searched it for 
money, but found none; that he and Ellington carried Mr. 
Stewart into the cotton seed room and placed him on the 
seed; that Ed Brown then poured the oil from the lamp on 
the seed around the body and threw the lighted lamp wick 
down in an effort to burn him and the house, and they then 
left the premises, Shields denied throughout that he struck 
the deceased at all.

As detailed by the witness, Brown’s statement of what 
occurred up to the time they entered the house was the 
same as that of Shields. Brown stated that he secured a 
foot axe from the foot chest and waited in the hall until 
Mr. Stewart came out of the bedroom; that Shields then 
hit him with an axe and he (Brown) hit him with the foot 
axe and knocked him down; that Shields and Ellington then 
carried the body into the seed room, and Shields poured the 
oil on the seed and attempted to set them on fire. He 
further stated that he threw the foot axe in a cistern or 
well in the yard, but this axe was not found. Both Brown 
and Ellington stated that Shields carried an axe to the 
house and into the deceased’s bedroom, and both stated 
that he struck the deceased with the axe in the hall, while 
Ellington stated that Shields struck the first blow with the 
axe when they entered the room where the deceased was 
sleeping. Ellington denied striking the deceased in the 
bedroom, but stated that he did strike him one or two blows 
with a chisel after he got out near the tool chest in the hall. 
Both Ellington and Shields stated that Brown was a tenant



131
on Mr. Stewart’s farm, worked around the house and fed 
the livestock, and frequently carried a bunch of keys belong­
ing to Mr. Stewart. Their statements covered other details 
in reference to an exchange of jumpers and incidental mat­
ters, which we will not here set forth. The Sheriff of 
Lauderdale County and Eugene Stevens, a minister, also 
testified as to the confessions of the appellants, and their 
version of the circumstances under which the confessions 
[fol. 170] were made, and the statements of each of the 
appellants, was substantially the same as of Sheriff Adcock.

With the admission of these confessions the state closed 
its case, and thereupon each of the appellants took the stand 
and testified to facts tending to establish an alibi, and also 
offered their wives and one other person as a witness to 
establish the alibi. They admitted that they made the con­
fessions which had been offered in evidence, but testified 
that prior to the time they confessed to the two sheriffs in 
the Lauderdale County jail they had been seriously whipped 
and otherwise mistreated by other parties, and had thereby 
been induced to confess to these parties, who warned them 
that they must thereafter continue to tell the same story, 
and that they made the subsequent confessions on account 
of fear of further violence. They explained their ability 
to construct their story and tell the part each one took, upon 
the ground that they followed questions and suggestions of 
the parties who forced the confessions from them. They 
admitted that Sheriff Adcock and his associates treated 
them kindly and promised to protect them from harm, and 
that the sheriff told them they did not have to talk, and that 
if they made any statement they should tell only the truth 
about it. Two of them also admitted that during the prog­
ress of the trial, and just a short while before they took 
the witness stand, they had voluntarily told Sheriff Adcock 
that the confesssions they had made to him on the previous 
Monday night were true.

After the three defendants had each testified, the state 
requested permission to reopen its case and introduce a 
finger print expert who had not been available at the time 
the state’s evidence in chief had been presented. Over the 
objections of appellants the court permitted this witness 
to testify, but offered the appellants a reasonable time to 
secure evidence in rebuttal. They offered no such evidence 
and made no requests to postpone or delay the trial until



132
[fol. 171] such evidence could be obtained. This witness 
testified that he had developed certain finger prints which 
were on the bowl of the lamp found near the body of the 
deceased, and had compared them with the appellant 
Brown’s finger prints and they were the same.

In rebuttal three witnesses were offered for the purpose 
of contradicting the appellants, who had testified that when 
they made their first statements about the killing, many of 
the answers given by them were suggested by parties pres­
ent ; and in the course of the examination of these witnesses, 
it was developed that before the appellants made the first 
statements they had been whipped. They also testified to 
various statements made by the appellants when they first 
confessed, which were inadmissible, but upon motion of the 
appellants all the testimony of these witnesses was ex­
cluded, except that to the effect that they made no sugges­
tions to appellants as to the statements to be made by them, 
or the answers to be given to questions asked them, and 
upon the suggestion of counsel for appellants the court di­
rected the jury to disrgeard all the testimony of these wit­
nesses except that part with reference to suggestions made 
to the appellants. No other request in reference to the tes­
timony of these witnesses was made of the court.

The principal assignment of error urged by appellants 
is that the confessions were inadmissible and should have 
been excluded by the court. As herein previously stated, 
when the confessions of the appellants were first offered, 
the court conducted a preliminary examination to determine 
their competency and admissibility. At this examination 
the appellants cross-examined the state witness but offered 
no evidence whatever to contradict the witness or otherwise 
show that the confessions were not free and voluntary. 
Upon the evidence offered the court held, and we think 
correctly, that the confessions were shown to have been 
freely and voluntarily given. In the introduction of their 
proof, on the merits, and in the introduction of the state’s 
rebuttal evidence there was testimony which strongly tended 
to show that the confessions were made under the influence 
[fol. 172] of fear induced by threats and violence, but no 
motion was made to exclude the confessions. After the 
court ruled that the confessions were admissible it was 
never thereafter called upon to pass upon their competency, 
and as held in the case of Loftin vs. State, 150 Miss. 228,



133
116 So. 435, wherein identically the same circumstances 
and situation were presented, “ the court committed no 
error in not excluding them in the absence of a request so 
to do” . In the Loftin case, supra, the court quoted, con­
sidered and approved the rule announced in Ellis vs. State, 
65 Miss. 3 So. 188, 7 Am. St. Rep. 634, that “ after a con­
fession has been admitted by the court, either party has a 
right to produce before the jury the same evidence which 
was submitted to the court when it was called upon to de­
cide the question of competency, and all other facts and 
circumstances relevant to the confession, or affecting its 
weight or credit as evidence; and if it should be made to 
appear at this point, or any other, during the progress of 
the trial, that the confession was made under such circum­
stances as to render it incompetent as evidence, it should 
be excluded by the court” . But it was expressly held that 
if a confession has been properly admitted in evidence after 
a preliminary examination as to its competency, no error 
is committed by a failure to exclude it, in the absence of a 
request so to do, although during the later progress of the 
trial it is made to appear that the confession was made 
under such circumstances as to render it incompetent as 
evidence. The Loftin Case is applicable and controlling 
here, and in the absence of error on the part of the lower 
court in failing to exclude the confessions we cannot re­
verse upon that point.

The appellants next assign as error the action of the 
court in permitting the introduction of a finger print expert 
as a witness after the state had dosed its case in chief, and 
the appellants had begun the introduction of their testi­
mony. The record shows that the testimony of this expert 
was not available when the state closed its case, and it was 
[fol. 173] admitted with the definite understanding that the 
appellants would be granted a reasonable time within which 
to obtain witnesses to meet the testimony to be offered by 
this witness. The appellants made no request to postpone 
or continue the trial until evidence bearing upon the finger 
prints could be obtained, if any were available. The reopen­
ing of a case to admit further testimony is a matter that is 
addressed to the sound discretion of the trial court, and its 
action in so doing will not be reviewed in the absence of a 
showing of abuse of that discretion. Baired vs. State, 146



134

Miss. 547, 112 So. 705; Morris vs. State, 148 Miss. 680, 
114 So. 750.

The appellants next complain of the testimony of certain 
rebuttal witnesses which had reference to confessions made 
to them as a result of alleged whippings administered to 
the appellants. The court sustained appellant’s motion to 
exclude this testimony and instructed the jury to disregard 
it. No motion for a new trial was made after the motion to 
exclude was sustained. The court granted every request 
made of it in reference to this testimony, and therefore it 
cannot be held to have committed error.

Appellants next complain that instructions No. 1 and 2 
for the state do not correctly define murder, for the reason 
that the words “ with malice aforethought”  are omitted 
therefrom. Both of these instructions define murder as. 
being the killing of a human being, without authority of 
law, by any means or in any manner, when done with the 
deliberate design to effect death of the person killed. This 
definition of murder is in the exact language of the statu­
tory definition found in Section 985, Code of 1930, and is 
correct. Atkinson vs. State, 137 Miss. 42, 101 So. 490.

Appellants next complain of the refusal of two instruC- 
tions requested by them, Nos. 9 and 10. Instruction No. 9 
was a cautionary instruction in reference to the effect of 
testimony concerning finger prints and dying declarations, 
and no error was committed in refusing it, first, for the rea- 
[fol. 174] son that dying declarations were in no way in­
volved, and second, the giving of cautionary instructions 
is a matter addressed to the discretion of the trial judge, 
and the refusal of such an instruction is not reversible 
error. Watkins vs. State, 134 Miss. 211, 98 So. 537.

Instruction No. 10, which was refused by the court, was 
properly refused for the reason that it was a charge on the 
weight to be given the evidence. There is no merit in any 
of the other assignments of error.

The judgment of the court below will therefore be 
affirmed, and Friday, February 8th, 1935, is set as the date 
for the execution of the sentence.

Affirmed.

[File endorsement omitted.]



135

[fol. 175] In th e  S uprem e  Court oe M ississippi 

[Title omitted]

In Banc: Anderson J., Dissenting
Stewart was murdered on the 30th day of March, 1934. 

The March term of the Circuit Court of Kemper County 
was then in session. Appellants were indicted for the mur­
der on the 5th day thereafter—the 4th of April—and the 
trial began and ended on the 6th day of April—the second 
day after the indictment. Appellants were without counsel. 
The court appointed John A. Clark, L. P. Spinks, J. H. 
Daws and D. P. Davis, members of the Kemper County bar 
to defend them. It is stated in the briefs that Mr. Spinks 
was sick and unable to attend the trial, Mr. Daws, for rea­
sons of his own, refused to join in this appeal, leaving 
Messrs. Davis and Clark. It is not shown whether these 
four were the only members of the Kemper County bar or 
not.

Leaving out the confessions, the evidence was wholly 
insufficient to sustain the conviction. The evidence showed 
without any substantial conflict that the appellants were 
driven to confess their guilt by most brutal and unmerciful 
whippings and beatings at the hands of persons who doubt­
less thought they were guilty. A large part of this char­
acter of evidence was not specifically objected to by counsel 
representing appellants. The majority opinion holds that 
for that reason its competency cannot be raised on appeal, 
[fol. 176] The first witness for the state testifying to the 
confessions was the sheriff of the county, Adcock. He tes­
tified that the confessions took place in jail and were free 
and voluntary, but stated that while one of appellants was 
confessing another one came in who had been so badly 
whipped and beaten that he was unable to sit down. The 
other appellants saw his condition. The evidence of Adcock 
was objected to by appellants and the objection overruled. 
Whether a confession is free and voluntary is a question 
for the court, but before the court is justified in admitting 
the confession it must be shown beyond a reasonable doubt 
and to a moral certainty to have been free and voluntary. 
Ellis vs. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; 
Williams vs. State, 72 Miss. 117,16 So. 296; State vs. Smith, 
72 Miss. 420, 18 So. 482; Johnson vs. State, 107 Miss. 196, 
65 So. 218, 51 L. R. A. (NS) 1183; Fisher vs. State, 145



136

Miss. 116, 110 So. 361. Adcock’s testimony failed to meet 
that requirement.

Other evidence showed and, as stated, without any ma­
terial conflict that all the confessions made to the sheriff 
and other witnesses were forced by brutal whippings and 
beatings. As also stated, these confessions went in without 
objection by appellants’ counsel. It is doubtful whether 
any further objection was necessary after the testimony of 
Adcock was objected to. It appears that that was enough 
to give the court to understand that all confessions were 
objected to on the same ground. But, if wrong about that, 
should the general rule laid down in the controlling opinion 
govern in this case! It is a common saying that there are 
exceptions to all rules. If that be true, this is one case 
that ought to come within the exception. Wipe out these 
confessions, and the court would have been forced to direct 
a verdict of not guilty. The court had staring it in the face 
this incompetent testimony without which there could be 
no conviction. Must the lives of the appellants be taken by 
law because their counsel failed to bring to the attention 
[fol. 177] of the court this incompetent evidence ? Are tney 
without remedy? To illustrate: A is indicted for the mur­
der of B ; the evidence is sufficient to show the murder by 
somone, but the only evidence that A was the criminal agent 
is purely opinion testimony; witnesses testify that in their 
opinion A is the guilty agent; A ’s counsel does not object 
to the testimony; there is a conviction; A is sentenced to be 
hanged and appeals to the supreme court; must he suffer 
death because of the failure of his counsel to object to the 
testimony on the ground of incompetency?

Viewing this trial as a whole, it appears to me that it is 
condemned by the principles laid down by the Supreme 
Court of the United States in the Scottsboro cases. Powell 
vs. Alabama, 287 U.S. 45-77, 77 L. Ed. 158. Appellants were 
denied due process—a fair and impartial trial. They were 
represented by counsel who had neither time nor oppor­
tunity to do their part. Due process requires representa­
tion by counsel, either employed by the accused or appointed 
by the court. The court so held in the Alabama cases, and 
further that the right was denied where on being arraigned 
the accused was not asked whether he had or was able to 
employ counsel or wished to have counsel appointed, or 
whether he had friends or relatives who might assist in that



137

regard if communicated with; that due process required a 
fair, orderly and deliberate trial.

The case in a few words is this: The murder one day. 
Appellants indicted the 5th day thereafter. The second day 
after the indictment they were tried and convicted on con­
fessions of guilt whipped and beaten out of them. Four 
members of the bar had been appointed to defend them, one 
failed to act at the trial and one failed to join in the appeal. 
Those acting failed to object to the major part of the evi­
dence of confessions. Without the confessions the evidence 
[fol. 178] was wholly insufficient to convict.

In some quarters there appears to be very little regard 
for that provision of the bill of rights guaranteeing persons 
charged with crime from being forced to give evidence 
against themselves (Section 26 of the Constitution). The 
pincers, the rack, the hose, the third degree, or their equiva­
lent, are still in use.

[fol. 179] In th e  S uprem e  Court oe M ississippi

[Title omitted]
J udgm ent—Jan. 7, 1935

This cause having been submitted at a former day of this 
term on the record herein from the Circuit Court of Kem­
per County and this court having sufficiently examined and 
considered the same and being of the opinion that there is 
no error therein doth order and adjudge that the judgment 
of said Circuit Court rendered in this cause on the 6th day 
of April 1934, be and the same is hereby affirmed. It is fur­
ther ordered and adjudged that the appellants, Ed Brown, 
Henry Shields and Yank Ellington, for their crime of 
murder, be safely kept in jail of Kemper County until Fri­
day, February 8th, 1935 and on that day between the hours 
of 10 o ’clock A. M. and 4 o ’clock P. M. within the jail yard 
of Kemper County or at such other convenient place as the 
Board of Supervisors of Kemper County may designate, 
they the said Ed Brown, Henry Shields and Yank Ellington, 
be by the Sheriff of Kemper County, hanged by their necks 
until they are dead. It is further ordered and adjudged 
that the County of Kemper do pay the costs of this appeal 
to be taxed, etc.



138

[fol. 180] In S uprem e  C ourt of th e  S tate of M ississippi 

[Title omitted]

M otion for E xtension  of T im e  in  W h ic h  to F ile S ugges­
tion of E rror— Filed Jan. 15, 1935

Come appellants in the above styled cause, by their at­
torneys, and move the Court to grant an extension of fifteen 
days in which to file a Suggestion of Error, in said cause, 
in the Supreme Court of the State of Mississippi on the 
following grounds, to-wit:

That counsel for appellants is, at the present time, ill, and 
wholly unable to prepare and file said Suggestion of Error, 
on behalf of appellants, in the above styled cause.

That appellants are under sentence of death and for this 
reason alone are entitled to have ample time allowed to their 
counsel, for the preparation and filing of a Suggestion of 
Error in this cause, same being their last opportunity of 
appeal to this Honorable Court.

Signed: John A. Clark, Attorney for Appellants, by 
Brewer & Hewitt. Signed: Approved, Sydney 
Smith.

[File endorsement omitted.]

[fol. 181] Ordered: 15 days additional time granted
within which to file suggestion of error.

[fo l. 182] I n th e  S upreme Court of th e  S tate of
M ississippi

[Title omitted]
S uggestion of E rror

Now come the appellants, by their attorneys, and respect­
fully suggest to the Court that in the above matter, and its 
decision, the Court was in error:

I
In affirming the judgment of the trial court in that the 

preliminary examination of Sheriff Adcock, conducted by



139
the trial court, developed sufficient facts to show that testi­
mony with reference to the confessions made to Adcock, 
et al, was inadmissible, on the ground that said confessions 
were not free and voluntary; and the admission of said tes­
timony amounted to a denial of appellants’ Constitutional 
rights, under the Constitution of the State of Mississippi, 
and to a denial of due process of law to appellants, within 
the meaning of the Fourteenth Amendment to the Federal 
Constitution.

II
Li affirming the judgment of the trial court, in that the 

trial court, of its own motion, should have excluded the evi- 
[fol. 183] dence as to confessions, after testimony was in­
troduced by appellants, and it was admitted by witnesses 
for the State, that said confessions were obtained by force 
and violence; and said failure of the trial court amounted to 
a denial of a fair and impartial trial, as guaranteed by the 
Constitution of the State of Mississippi; and to a denial of 
due process of law, as guaranteed by the Fourteenth 
Amendment to the Federal Constitution.

III
In affirming the judgment of the trial court, in that ap­

pellants were denied a fair and impartial trial, under the 
Constitution of the State of Mississippi, and were denied 
due process of law, within the meaning of the Fourteenth 
Amendment to the Constitution of the United States, in 
that evidence, as to confessions, obtained by torture, was 
admitted on behalf of the State, in rebuttal, and later ex­
cluded by the Court, but said testimony having been heard 
by the jury, could not be so excluded as to cure the re­
versible error.

IV
This Court erred in its decision, and judgment entered 

by it in the above styled cause, in that the State of Missis­
sippi contrived the conviction of appellants, in the lower 
court, by the knowing use, by prosecuting authorities of 
the State, as confessions, of statements illegally obtained 
from appellants, through force and violence; such use by 
the State amounting to a denial of due process of law, 
within the meaning of the Fourteenth Amendment to the 
Constitution of the United States.



140

[fol. 184] V
This Court erred in its decision, and judgment entered by 

it in the above styled cause, in that the State of Mississippi 
contrived the conviction of appellants, in the lower court, 
through the introduction of illegal and incompetent evi­
dence, under the guise of confessions, same being statements 
extorted from appellants by officers and agents of the State, 
through force and violence; such action denying to appel­
lants due process of law, within the meaning of the Four­
teenth Amendment to the Constitution of the United States.

VI
This Court erred in affirming the judgment of the trial 

court, in that the trial court had lost jurisdiction to enter 
said judgment, because of the denial of due process of law, 
as guaranteed by the Fourteenth Amendment to the Fed­
eral Constitution, to appellants in the trial of said cause.

VII
This Court erred in affirming the judgment of the lower 

court, because appellants were denied a hearing in the trial 
court, within the meaning of the due process clause of the 
Fourteenth Amendment to the Federal Constitution, in that 
the trial of appellants was a mere pretence, the validity of 
same being destroyed by the fraud of the State, through its 
officers and agents.

VIII
This Court erred in affirming the judgment of the lower 

court, in that appellants were denied representation by 
[fol. 185] counsel, in the trial court, as provided by the 
Constitution and laws of the State of Mississippi, and 
within the meaning of the due process clause of the Four­
teenth Amendment to the Constitution of the United States.

IX
This Court erred in affirming the judgment of the lower 

court, in that the indictment was received, and the case 
tried at a time when the court had lost the power so to do.

X
This Court erred in affirming the judgment of the lower 

court, in that the record shows that appellants were tried



before the indictment was returned, or the homicide com­
mitted.

XI
This Court erred in affirming the judgment of the lower 

court, in that the name of the foreman of the grand jury 
was not endorsed on the indictment as required by law.

XII
This Court erred in affirming the judgment of the lower 

court in that the record does not disclose that the grand 
jurors, who returned the indictment, or that the petiti 
jurors, who tried the case, were sworn.

Respectfully submitted, (Signed) Brewer & Hewitt, 
Attorneys for Appellant.

Copy received.
(Signed) Greek L. Rice, Attorney General of the 

State of Mississippi, by W. D. Conn, Jr., Asst. 
Atty. General, Feb. 6, 1935.

[fol. 186]
I n th e  S upreme C ourt of th e  S tate of M ississippi 

[Title omitted]
M otion in  A rrest of J udgm ent and for N ew  T rial—Filed

Feb. 5, 1935
Comes the appellants, Ed Brown, Henry Shields and Yank 

Ellington, and moves this Court to arrest the judgment in 
this cause wherein this case was affirmed by this Court on 
January 7, 1935, and each of said appellants sentenced to 
be hanged and charges the facts to be:

That all the evidence of alleged guilt shown against them 
was brought about by threat, coercion and brutality and be­
cause this was known to the Court and District Attorney 
when they were convicted in the lower court, and that this 
coercion and threats was continued and carried on up to 
and through their trial and that they were so intimidated 
that they could not have a fair trial;

That they were denied the benefit of counsel in their cause 
or an opportunity to confer with their witnesses owing to 
the manner in which the trial was conducted and the re­
straint under which the defendants were held from the time 
of their a-rest until after their conviction and that they were

141



142

denied opportunity to confer with their counsel in an or­
derly and reasonable manner and that they were denied any 
[fol. 187] opportunity to make a motion for a new trial 
and that this trial amounted to depriving them of their life 
without due process of law under the Constitution of the 
United States;

They charge the facts to be that Mr. Raymond Stewart 
was said to have been killed in Kemper County, Mississippi, 
on the 29th day of March, 1934, and that each of these ap­
pellants were totally innocent of the commission of such 
crime or any participation therein or any knowledge of how 
Mr. Stewart’s death was brought about; and charge the 
facts to be that Yank Ellington, one of the appellants, was 
notified at his home on the night of the 29th day of March, 
1934, to come with Nannie Brooks, his mother-in-law, up to 
a spot near the home where Mr. Stewart was said to have 
been killed; that when they arrived at the place, there was 
a large number of white preple present and they were im­
mediately accused of the crime; that they were then and 
there by a mob lead by Mr. Cliff Dial, the Deputy Sheriff, 
and hanged up by the neck to the limb of a tree in order to 
coerce a confession from them that they did the killing or 
knew something about it. After twice hanging them by the 
necks and being unable to extort a confession from them 
that they tied them up to trees and gave them a terrible 
lashing on their bare backs and after being terribly shipped 
and having steadfastly refused to make any confession of 
guilt, they were released and that afterwards a day or two 
later, the appellant Yank Ellington was arrested and carried 
to jail in Meridian in Lauderdale County, Mississippi by 
Mr. Cliff Dial, Deputy Sheriff of Kemper County, and that 
on the way, he stopped, under the pretext of getting some 
water, took this defendant out of the car and while shackled 
had his clothing removed and gave him another terrible 
beating with a leather strap with buckles on it; and after 
[fol. 188] thoroughly lacerating his body, compelled him to 
make some statement about it, the contents of which is un­
known to the appellant, Yank Ellington, because he had 
been beat into such insensibility as to be practically in a 
stupor;

That then he was carried to the jail in Meridian, Missis­
sippi, and there confined with Henry Shields and Ed Brown;

That Ed Brown and Henry Shields had both been ar­
rested by Mr. Cliff Dial, Deputy Sheriff as aforesaid, and 
carried to the jail;



143
That on Sunday night, the first day of April, 1934, Mr. 

Cliff Dial, in company with other men, came into the jail 
and caused these appellants to be brought out into a room 
where they were stripped and told that they must confess 
the killing of Mr. Stewart; and they were severely whipped 
until they were compelled to make a statement or be 
whipped to death; and they thereupon made such state­
ment as he requested them to make; and that their bodies 
were covered with sores and sti'ipes; that Yank Ellington’s 
neck had a ring around it from the rope with which he had 
been hanged and that they were brought before the Court 
at Dekalb in Kemper County, on the afternoon of April 4th, 
without having had any opportunity to confer with their 
families or kins-people and without any opportunity to em­
ploy counsel or see if it was possible for their families or 
relatives to employ counsel, and that they were arraigned 
on the indictments and that Mr. Cliff Dial, the Deputy Sher­
iff who had told them when he whipped them that if they 
denied their guilt, he would whip them to death, was stand­
ing within a few feet of them at the time they were arraigned 
and in charge of them as executive officer; that he was look­
ing them in the face and that they were afraid then even 
to admit that they were innocent, and afraid to ask for a 
[fol. 189] lawyer or that the Court appoint one; The court 
then asked them if they wanted a lawyer and they replied 
that they didn’t suppose it would do any good;

That the Court then said he would appoint them two law­
yers, one Mr. John Clark, the other whose name they do 
not remember, and appellants say they were immediately 
taken from the court room by the officers and carried 
quickly back to Meridian jail, thirty miles or more from De­
kalb ;

That next morning they were brought back to Dekalb 
from the Meridian jail and taken into the Court House and 
that Mr. Clark arose and asked the Court for permission 
to have a consultation with your appellants; that the Court 
ordered the Sheriff to take them into a room in the Court 
House and allow them to confer with their counsel; that the 
court then added two more lawyers to their counsel, the 
names of whom they do not remember and these attorneys 
were not interested in their defense and they have since 
learned were not in sympathy with them but had expressed 
their opinions as to their guilt and desired their convic­
tion; that Mr. Cliff Dial attempted to accompany the de-



144

fendants in this conference but upon the objection of Mr. 
Clark, he was told to remain out of the room; that he stood 
just outside the door and that they could observe him 
through the glass in the door, and he would hold his ear 
down close to the keyhole so as to observe what they were 
saying and this was immediately noticed by them ; that they 
were afraid to say anything or assert their innocence for 
fear that they would be whipped by Mr. Dial; that during 
the hour of this conference in which they were only able to 
whisper to their counsel that they were innocent and with­
out any opportunity to confer openly with counsel; and 
three or more times while they were in the room, the Judge 
sent a messenger to the room stating that he did not want 
to unduly hurry them but to get through as quick as they 
could as he was anxious to go on with the trial;

That they went out in the court room after the third 
[fol. 190] or fourth attempt of the Court to hurry them in 
this way and went to trial; and along in the late afternoon 
or evening, the court said he would take a recess until to­
morrow morning which would be the 6th day of April, 1934; 
and immediately your appellants were handcuffed, carried 
out and placed in the conveyance and returned to Meridian 
jail; ant that the next morning, April 6th, 1934, they were 
brought back to the Court House in Dekalb and immedi­
ately the trial began and lasted until dark, when the jury 
returned the verdict against all three of your appellants, 
convicting them of murder; they were immediately asked 
to stand up by the Court and on motion of the District At­
torney, the court as soon as he could consult a calendar as 
to dates, immediately sentenced them to be hanged and set 
the date for their execution; that they were immediately 
handcuffed, carried out and put in the conveyance and re­
turned to Meridian with no opporunity to consult their con- 
sel and no opportunity to consult with their families and no 
opportunity to make a motion for a new trial, and without 
having been informed that they had a right to make a mo­
tion for a new trial; that no time was given them in the be­
ginning of the trial to have a jury drawn from a special 
venire; in fact, they were not advised that they were en­
titled to any such right;

That at the time and during their trial, Mr. Cliff Dial and 
others who were present when they were whipped were in­
troduced as witnesses and told of their confession before 
the court and jury and admitted that they made no confes-



145

sion until they were whipped and that the confessions were 
made during the time they were being whipped;

And they plead that said trial was not such a trial as is 
provided for by the Constitution and Laws of Mississippi 
or with the Constitution of the United States, and they 
plead that they are being deprived of their lives without 
[fol. 191] due process of law as provided for in the Consti­
tution of the United States.

And they pray the judgment of this Court as to whether 
or not such judgment obtained in this way by coercion and 
threats and by failure to have an opportunity to see if they 
could employ counsel or their families could employ counsel 
for them that was in sympathy with them and- because they 
were denied the benefit of counsel or any reasonable oppor­
tunity to confer with counsel appointed for them; and they 
pray that this the Court of last resort in Mississippi arrest 
this judgment because rendered in violation of their rights 
and denies them life without due process of law;

They plead that they are innocent of any crime charged 
against them and that this plea is not filed for delay but that 
justice may be done and they tender as evidence in support 
of their plea the affidavit of their Attorney, who was ap­
pointed by the Court, Mr. John Clark, and the affidavits of 
the appellants, and ask this Court to consider same;

And pray this Court not to condemn them to death on 
this judgment without giving them an opportunity to be 
heard before the Court in a trial where they are represented 
by counsel with reasonable opportunity to confer with them 
about that trial and with their witnesses.

(Signed) Earl Brewer, and W. H. Hewitt, Attor-
his his

neys for Appellants. Ed X Brown. Henry X
mark mark

his
Shields. Yank X Ellington, 

mark
[fol. 192] Duly sworn to by Ed Brown and others. Jurat 
omitted in printing.

[File endorsement omitted.]

10—66653



146

[fol. 193]
I n th e  S upreme C ourt oe the  S tate of M ississippi 

[Title Omitted]
A ffidavit of J ohn  A. Clark.—Filed Feb. 5, 1935

Personally appeared before me, the undersigned author­
ity authorized to administer oaths under the laws of the state 
of Mississippi, John A. Clark, of DeKalb, Mississippi who 
says upon oath that on or about the 29th day of March, 
1934, Mr. Stewart was found in a dying condition at his 
home, and shortly thereafter, during the 29th day of March, 
1934, died; and that the next week, or to be exact, on the 
4th day of April, 1934, which was on Wednesday of the 
week, a grand jury was called together, returned a bill of 
indictment against the three defendants Ed. Brown, Henry 
Shields and Yank Ellington, and the negroes were confined 
in jail at the time in Meridian, Mississippi, which is in 
Lauderdale county, some thirty miles from DeKalb, the 
county seat of Kemper county. That each of the three 
parties charged in the indictment of murder for the killing 
of Mr. Stewart were ignorant, pauper negroes. That they 
were brought over from Meridian on the 4th day of April, 
in the afternoon, and brought into the court house, and they 
were arraigned on the bill of indictment, and one of them, 
speaking for the trio, said: “ We just as well plead guilty.”  
There was present standing near the defendants Mr. Cliff 
Dial, a deputy sheriff. The court then told the defendants 
[fol. 194] that they were to be tried, and asked them if 
they wanted a lawyer, and they said they didn’t suppose 
it would be any use to have one. Thereupon the court said 
“ I will appoint Mr. Spinks and Mr. Clark to defend you” , 
and said the case would be called for trial tomorrow morn­
ing. Thereupon the three defendants were taken imme­
diately from the court room and into an adjoining room 
for about a 30 or 40 minute conference with said attys 
then carried back to Meridian, Mississippi. The next morn­
ing about nine or ten o ’clock the defendants were brought 
into the court room again by the officers of the law, and 
the two parties appointed to defend them requested a con­
ference with the defendants, and they were sent into a 
room in the court house for this conference along with the 
deputy sheriffs guarding them, and Mr. Cliff Dial started 
to come into the room where they were undertaking to



147
confer with their counsel, and thereupon objection was 
made to him coming into the room beause of certain matters 
which will hereafter be referred to. That within a short 
while, not exceeding thirty or forty minutes, a messenger 
was sent into the room by the court with the statement 
made to us that the court does not want to unduly hurry 
you gentlemen in your conference with the defendants, but 
to get through as quickly as you can, as the court desires 
to proceed with the trial, and in the course of an hour or 
two spent in the conference the court sent two or three 
times with this message to the defendants’ counsel in order 
to hurry them up with the conference.

When Mr. Cliff Dial, a Special deputy sheriff, was ex­
cluded from the room, he stood just outside of the door 
where he could be observed by the defendants and their 
counsel, and he would hold his ear down near the keyhole 
[fol. 195] in the door, as if he were trying to hear what 
was said by the defendants to their counsel, and he re­
peated this effort to the knowledge of the defendants and 
the affiant, as they could see him through the glass in the 
door, and the defendants expressed themselves secretly to 
affiant that they were afraid to talk about the case. On 
two or three occasions while the conference was going on, 
Mr. Cliff Dial opened the door a little ajar and poked his 
head in the door and stated that he wanted to deliver a 
message to the sheriff who was in the room, and after this 
conference had been hurried two or three different times 
by the courier announcing that the court did not want to 
unduly hurry the conference but wanted them to hurry 
up and come on and begin the trial, the defendants and 
their counsel came out and had had no time to confer with 
their witnesses and no opportunity to learn anything about 
the case except a smattered effort at whispered conversa­
tions in the room in this way to their counsel.

The case was then called against all three of said defend­
ants; they were not advised that they were entitled to a 
severance or that they were entitled to a special venire 
from which to draw a jury, but the court announced that 
he had appointed two other counsel to assist in the defense, 
Mr. Davis and Mr. Davis, and they came and took seats 
at the bar in the case, but affiant states that neither of the 
three men assigned with him in the trial of said cause were 
at all in sympathy with the defendants, but all prejudiced 
the case, and thought they should be convicted. That affiant



148

himself had heard from the officers that they had volun­
tarily confessed to the murder and he himself at that time 
had no doubt of their guilt and was simply going through 
[fol. 196] the form of a trial in this way. Twelve men then 
were called into the box by the court and they began taking 
evidence, the court having had pleas of Not Guilty entered 
for them. The trial continued until late in the afternoon, 
and it had developed that the negroes had been terrifically 
whipped and abused and clearly the confessions extorted 
from them. All of the defendants were very much excited 
and bewildered from the time they were brought in court 
until the court took a recess late in the afternoon, this being 
the 5th day of April, and ordered the prisoners taken back 
to Meridian. They were immediately hustled into the con­
veyances and left for Meridian without any opportunity 
to confer with their counsel or witnesses or any one else.

The next morning, being- the 6th day of April, 1934, the 
defendants were brought into court and immediately the 
trial began and continued through the day, and during the 
day it developed that Mr. Cliff Dial, who made the arrest 
of each of them, did so terrorize them by the most cruel 
and brutal whippings and beatings and by hanging one of 
them by the neck until his neck was all scarred up with a 
ring around it that could be observed clear across the court 
room, and this had been brought out in evidence and ad­
mitted by Mr. Cliff Dial and others, and we could then see 
why the ignorant negroes were in such desperate fear of 
Mr. Dial, and that they had upon their bodies tremendous 
sores and stripes placed there by the whippings and this 
was brought to the attention of the court and the district 
attorney and the jury and in open court, and that then the 
evidence rested in the case; the jury went out after hearing 
a feeble argument, and returned in open court a verdict 
of guilty of murder against each of the defendants, and 
as soon as the court could look at a calendar and arrange 
[fol. 197] the date for the execution, upon the motion of 
the district attorney, they were called to the bar of the 
court and sentenced to be hanged, and the date set for their 
execution, and as soon as this was done, the prisoners were 
immediately hand-cuffed, taken out of the court room, and 
driven away for Meridian, the county seat of another 
county thirty miles away with no opportunity to make a 
motion for a new trial, it being after dark on the night of 
the 6th, no money in the hands of anybody to pay for going



149

down there to visit them or have any talk with them, and 
without their having been brought back or given any oppor­
tunity to make a motion for a new trial or confer with 
counsel about making one. The court next morning signed 
the minutes and adjourned the court for the term, and 
affiant states upon oath that such was the manner and haste 
in which the trial was conducted, and that just before the 
date of the execution, he went at his own expense down 
to Meridian, and had a conference with each of the defend­
ants and so impressed was he with their innocence that he 
prepared and had executed a paupers’ oath and petition 
for appeal, two of the other attorneys declining to have 
anything to do with any effort at appeal in said cause, and 
the 3rd only permitted his name to be used, but took no 
part (Davis) and procured the stenographer to transcribe 
the notes of the evidence, and had the record certified to 
the supreme court.

(Signed) John A. Clark.

Sworn to and subscribed before me this the 5th day 
of February, 1935. (Signed) Mae Munn, Notary 
Public. (Seal.)

[File endorsement omitted.]

[fol. 198] lx  t h e  S u p r e m e  C o u r t  o f  t h e  S t a t e  o f

M i s s i s s i p p i

[Title omitted]

A f f i d a v i t  o f  Y a n k  E l l i n g t o n —Filed Feb. 5, 1935

Personally appeared before me, the undersigned author­
ity, authorized to administer oaths under the laws of the 
State of Mississippi, Yank Ellington, who says upon oath 
that he is one of the appellants in a case now pending upon 
appeal before the Supreme Court of Mississippi, styled 
Ed Brown, et al v. State of Mississippi, No. 31,375. Affiant 
further says upon oath that on Friday, the 29th day of 
March, 1934, he learned that Mr. Stewart was killed, and 
that he lived about a mile from Mr. Stewart’s house, and 
he went over there to see if there was anything he could 
do about the matter and any help he could render; that he



150
found a number of people gathered in and around the 
house; that later on that evening Mr. Cliff Dial came down 
to his house and asked him and Mannie Brooks, another 
Negro boy to come on up to the Stewart’s house and that 
when he got up there he found a number of people there; 
that they began accusing him of having known something 
about the killing of Mr. Stewart, and also accused Mannie 
Brooks, and that a mob seized them, led very largely by 
Mr. Cliff Dial, a deputy sheriff, and that they hanged him 
by a rope to the limb of a tree for a while, and then let 
him down and tried to make him confess that he knew 
something about the killing, and when he denied any knowl- 
[fol. 199] edge of it they hanged him the second time. That 
in addition to hanging they skinned his neck all up with the 
rope and tied him around a tree and gave him a severe whip­
ping on his naked body. That upon having declined to con­
fess to a murder of which he was innocent, they released 
him and he went home, suffering great pain and agony. 
That later on, a day or two, he being so beaten and treated 
that he was incapable of remembering whether it was one 
or two days, Mr. Cliff Dial came and arrested him again, 
and told him that he was taking him to Meridian for safe 
keeping, as he was afraid that he would be mobbed if he left 
him there, and that on the way to Meridian he stopped by 
the roadside and accused him of lying and said that he 
was going to have to belch up the truth about who killed 
Mr. Stewart, and that he made him strip his clothing off 
and took a leather strap, with a buckle on the end of it, 
and whipped him until he cut his body in stripes; that he 
swore all of the time that he had not had anything to do 
with it, and knew nothing about it but Mr. Dial told him 
that unless he came on and told him the truth and admitting 
the killing and implicated others who he said were in it, 
that he was going to whip him to death, and he then told 
him “ Tell me what to say and I ’ll say it” , and under this 
desperate effort to save his own life, from being cruelly 
beaten to death, he admitted anything that Mr. Dial asked 
him to admit, and that he was so severely wounded and 
bruised, and suffering so greatly that he was not sufficiently 
conscious to know what he did say.

That he was then carried to Meridian and placed in jail, 
and that two other people, his codefendants, Ed Brown and 
Henry Shields, were taken in the jail by Mr. Cliff Dial 
[fol. 200] and others into a room and so severely beaten



151
and whipped that they came back into the jail and were 
bleeding and suffering, and admitted that they were pre­
pared to tell him whatever he wanted told in order to save 
their lives.

That Mr. Dial told him that he was “ going to be talked 
to by somebody else about this killing and what you have 
told me, or what I have whipped out of you, is the truth, 
and you must stick to this truth and don’t tell anything 
else but this same truth which you have told me or I will 
whip you again” , and that on Monday night, the 2nd day 
of April, 1934, the sheriff of Kemper county and the sheriff 
of Lauderdale county came into the jail and had the jailer 
bring all three of them out into a vacant room and re­
quested them to sit down on a box, and one of them, Henry 
Shields, was so beaten that he could hardly walk, and we 
were told by Mr. Adcock, the sheriff of Kemper county 
that we must tell him the truth about what happened in 
connection with the killing of Mr. Stewart and we started 
to tell him that we knew nothing about it and he stopped 
us and said “ No, boys, that is not the truth, now you are 
going to have to tell the truth” .

When we were brought out of the cell in the jail to go 
into the room where the sheriffs were, we were told by the 
jailer “ Now, you boys have got to stick to your same stories 
you told Mr. Dial, otherwise you will be whipped again” , 
and fearing that the sheriffs would immediately leave and 
we would be immediately whipped again, we repeated to 
the sheriffs the same story we had told to Mr. Dial and 
others who whipped us, except Henry Shields said that 
H am so near dead anyway I am going to tell the truth” ,, 

and said “ I never had anything to do with the killing” . I 
was afraid to make that statement and tell the real truth 
to the effect that I had nothing to do with the murder and 
knew nothing about it.
ffol. 201] On the following Wednesday, being the 4th day 
of April, 1934, we were all three carried 'up to DeKalb. 
We were taken out and carried in the court house before 
Judge Sturdivant on the Bench, and there a paper was 
read to us, charging us with killing Mr. Stewart, and we 
were asked to say whether we were “ guilty”  or “ not 
guilty.”  Mr. Dial was standing there close by us, looking 
us in the face with a hard look. We did not know but 
what we would be taken to prison that night if we denied



152

it, and whipped again, and Henry Shields said “ We just 
as well say we are guilty.”  I was so frightened and ter­
rorized that I could not talk. The Judge asked us if we 
wanted a lawyer and Henry said “ I don’t think it will do 
any good.”  And, thereupon, the Judge said “ I will ap­
point Mr. Clark and Mr........ to defend you, the name of
the other gentleman I don’t remember, and the Judge said 
then “ You can return the prisoners to Meridian for safe­
keeping,”  and we were then handcuffed and carried to 
Meridian, and the next morning we were brought out of 
the jail and Mr. Clark said “ We have had no chance to talk 
to these negroes about their cases, and will ask the Court 
to give us some time to talk to them and their witnesses,”  
and the sheriff and some deputies, including Mr. Cliff Dial 
went to a room with us in the court house, but Mr. Clark 
made some objection to Mr. Dial being in the room and he 
got out and stood on the outside of the door. I could see 
him through the glass, and he would keep stooping down 
every few minutes and listening through the key hole to 
see what we were saying, and I knew it would never do for 
him to know that we were changing up what we had been 
forced to tell him at the time we were abused; and two 
or three times a man would stick his head in the door and 
tell us that the Judge said that he did not want to hurry us 
[fol. 202] too much, but he was anxious to go on with the 
trial, and we were not able to tell Mr. Clark much about it. 
The other three lawyers did not seem to take any interest 
in our case.

We then went out in the court room and they put some 
men on the jury, and the District Attorney said “ These 
men are all right,”  and then Mr. Clark asked that we go 
out in a room and have a conference about it, and Mr. 
Clark wanted to put certain men off of the jury, but the 
other lawyers said “ No, leave them on there,”  and after 
while they said “ Well, if you want to put those men off 
why who is going to do it ; who is going to go out there and 
challenge those white men off the jury in these negroes’ 
case,”  and each of them said that they did not want to 
start any trouble there, and finally Mr. Clark said “ Well, 
some of us ought to have the nerve to go in there and tell 
them to stand aside,”  so they then decided to flip a coin 
as to which one should do this, and it fell to Mr. .. . to do 
it, so he went and told them to get off the jury, and they



153

then called some more men and commenced trying us, and 
went on until night, and then the Judge told the sheriff 
to take us back to Meridian and brought back next morn- 
ing, then went on in the court house and went to trying 
us again, and that lasted until about dark when the jury 
came in and said that we were guilty, and then the Judge 
sentenced us to be hanged and told the sheriff to take us 
back to Meridian, and he put handcuffs on us and marched 
us out and got in the conveyances and we were taken to 
Meridian. We did not have any opportunity to talk to our 
lawyers and tell them what our witnesses would know, or 
what we were doing, or anything about the cases except to 
tell him that we were not guilty and had nothing to do with 
the killing.
[fol. 203] I positively swear that I am innocent of having 
had anything to do with, or having known anything about 
who killed Mr. Stewart, for I certainly did not kill birry or 
assist in killing him.

his
(Signed) Yank X Ellington.

mark

Sworn to and subscribed before me this the 6 day of 
February, 1935.

(Signed) E. D. Fondren, Circuit Clerk, by H. T. Ash­
ford, Jr., D. C. (Seal.)

[File endorsement omitted.]

[fol. 204] In th e  S upreme C ourt of the  S tate of
M ississippi

[Title omitted]
No. 31375

A ffidavit of E d B row n—Filed Feb. 5, 1935
S tate of M ississippi,

County of Hinds:
Personally appeared before me the undersigned author­

ity authorized to administer oaths under the Laws of the 
State of Mississippi, Ed Brown, who says upon oath that 
he is one of the appellants in the above styled cause and 
that on March 29, 1934, Mr. Stewart was found in a dying 
condition at his home and during the day of March 29,



154

1934, died; and that affiant and Yank Ellington and Henry 
Shields were arrested by Mr. Cliff Dial, a Deputy Sheriff 
of Kemper County, and charged with the said crime of 
murder in the killing of Mr. Stewartand that they were 
all three carried to Meridian in Lauderdale County and 
placed in jail there; and that on Sunday night, the 31st day 
of March, 1934, Mr. Cliff Dial, the Deputy Sheriff of Kem­
per County, Mississippi, came into the jail at Meridian in 
Lauderdale County and in the company of others with him, 
affiant was brought out into a room in the jail and made to 
strip his clothing off and was there told that he was going 
to be compelled to disclose what he had to do with the kill­
ing of Mr. Stewart and others who were into it, and that 
ffol. 205] affiant knew nothing thereabout as to who did it 
and had nothing to do with it himself and he so told Mr. 
Dial and the other men present. But he was put down over 
an object and literally cut to pieces with a heavy leather 
strip with brass buckles on it and whipped until he couldn’t 
stand any more and was told that he would be whipped to 
death unless he confessed to the killing but after he had 
almost been whipped into insensibility or unconsciousness, 
he told Mr. Dial he would tell anything that he asked him 
to tell and he told him what he wanted him to say about 
that that he knew was the truth and that he told him, 
“ Yes, he would say that or anything else he asked him to 
say to get him to stop whipping him,”  and the so-called 
confession was obtained in this way. He was then told by 
Mr. Dial that he would be approached by other people there 
inquiring about the matter and that he must tell them the 
same story for if he changed the story or denied it, he 
would whip him again; and after the other appellants, 
Shields and Ellington, had been terribly whipped, they were 
all three made to tell the same story and warned to stick 
to it, for if they ever changed that story they would whip 
them to death;

They were then left in this miserable condition until the 
next night, being Monday night, the jailer who was present 
when they had been whipped on Sunday night came and 
unlocked their cell and brought all three of them out back 
into the same room where they had been whipped the night 
before, and they found in the room, Mr. Adcock, Sheriff 
of Kemper County, and two other men. I was told that 
one of them was the Sheriff of Lauderdale County, Mr.



155

Stevens. We were then asked to tell what we had to do 
with the killing of Mr. Stewart and we all started to say 
that we didn’t know anything about it when Mr. Adcock 
stopped us and said: “ Now, that is not the truth and you 
boys are going to have to tell the truth, your story doesn’t 
ring right.’ ’ Thereupon, we went ahead and told him the 
[fol. 206] same thing Mr. Cliff Dial had made us tell the 
night before, feeling certain that we would be whipped 
again if we didn’t. We were so badly whipped and beaten 
and bruised that we could scarcely get down the stairway 
at the end of the room. When the jailer brought us out 
of the cell before going to the room, he told us: “ Now,
you boys will have to stick to the same story That you told 
Mr. Dial, if you don’t you will be whipped again,’ ’ and 
when he returned us to the cell, we were asked by him if 
we changed our story either of us and we told him “ No,’ ’ 
and he said “ It ’s good you didn’t, as you would be whipped 
again if you had changed your story ’ ’ ;

Then, on Wednesday, the 4th day of April, 1934, we were 
taken out of the jail at Meridian and carried to DeKalb in 
Kemper County and were carried into the Court House and 
there we were told by the District Attorney who read a 
paper to us that we were charged with murdering Mr. 
Stewart-and we were asked whether we were guilty or not 
guilty, and Henry Shields said we just as well plead guilty. 
Mr. Dial was standing there in a few feet of us looking 
us straight in the face at the time and we were sure as soon 
as the Court proceedings were over, we would be carried 
to jail either at Meridian or in DeKalb, and that if we 
denied it, we would be whipped again. We were asked by 
the Judge if we wanted a Lawyer and we told him we didn’t 
know if it would be any use for us to have a Lawyer. He 
then told us he would appoint Mr. John Clark and some­
body else whose name I don’t remember, as Lawyers for 
us and that they would try us tomorrow. Thereupon, we 
were taken out and put in the conveyance and hurried back 
to Meridian jail. The next morning, we were brought out 
of jail at Meridian and carried back to DeKalb. Then Mr. 
Clark asked to have a talk with us and we were sent in a 
room and Mr. Cliff Dial started to come in the room with 
us and Mr. Clark objected to his being in the room and the 
Sheriff told him to stay out. He stayed just on the out- 
[fol. 207] side of the door and there was a glass in the door



156

and we could see him. He was standing there right by the 
door watching us and would lean down with his ear close 
to the keyhole in the door so he could hear what was going 
on in the room and we were afraid to talk to Mr. Clark and 
the other lawyer and afraid to deny that we killed Mr. 
Stewart, and we could only in a whisper conversation tell 
Mr. Clark we didn’t do it, and didn’t know who did do it. 
That every few minutes Mr. Cliff Dial would open the door 
and stick his head in and say that he wanted to tell the 
Sheriff something and then close the door and stand right 
by it, and drop his ear down by the keyhole so as to hear 
what we would say. And about three or four times while 
we were trying to talk to Mr. Clark in this way, a mes­
senger would come in and say the Judge said, he didn’t 
want to hurry you fellows too much but he was anxious to 
go on with the trial. We then come on out of the room 
and they had some men called they said was the jury and 
the District Attorney said they were agreeable jury to him. 
And then Judge asked if they were agreeable to us and we 
went out in the room again and Mr. Clark said, “ there are 
some of those men that we know are bitter against us and 
would convict us,”  and the other lawyers in the room said 
“ Oh, go ahead and take them,”  but Mr. Clark said “ No”  
and they then agreed with him to put these men off. They 
then asked who would go out and put them off, and each 
one said they didn’t want to do that because they didn’t 
want to make the white men mad by putting them off the 
jury. So, they decided to throw up a coin and decided in 
this way which one should tell them to get off the jury; 
and then the one they selected in this way when we went 
back in the Court room told them that they were excused 
and then some more men were called and we went on with 
the trial, and late that afternoon, the Court said he would 
take a recess out of the next day at 9 :00 o ’clock. We were 
then carried out and put in the conveyance and carried 
back to the jail at Meridian. Then Sheriff said he was 
[fol. 208] afraid to put us in jail in Kemper County for 
fear we would be mobbed.

The next morning, being the 6th day of April, we were 
brought over to Dekalb and they finished hearing the evi­
dence and the jury walked out into a room after the lawyers 
did some talking and come back and said we were each one 
guilty of murdering Mr. Stewart and the Judge had us



157

stand up and as soon as lie could look at a calendar, lie 
sentenced us to be banged and set the day for the hanging. 
Then we were handcuffed, carried right on out, put in a 
conveyance and carried back to Meridian.

We had not time or opportunity to confer with our wives 
or our relatives to get anybody to do anything for us. We 
were never told that we had a right to have a special venire 
to draw jurors from; we were never told that we had any 
right to make a motion for a new trial and we had no time 
to consult with our lawyers except as above stated. We 
did not know that we could make a motion for a new trial.

I am innocent in this case. I had nothing whatever to 
do with the killing of Mr. Stewart and do not- know any­
thing about who killed him.

his
(Signed) Ed X  Brown.

mark

Sworn to and subscribed before me, this the 6 day of 
February, 1935.

(Signed) E. D. Fondren, Circuit Clerk, by H. T. Ash­
ford, Jr., D. C. (Seal.)

[File endorsement omitted.]

[fol. 209] In th e  S upreme Court of the  S tate of
M ississippi

[Title omitted]

A ffidavit of H enry  S hields—Filed Feb. 5, 1935
S tate of M ississippi,

County of Hinds:
Personally appeared before me the undersigned authority 

authorized to administer oaths under the Laws of the State 
of Mississippi, Henry Shields, who says upon oath that he 
is one of the appellants in the above styled cause and that 
on March 29th, 1934, Mr. Raymond Stewart was found in 
a dying condition at his home, and during the day of March 
29, 1934, died; that affiant and Yank Ellington and Ed 
Brown were arrested by Mr. Cliff Dial, Deputy Sheriff of 
Kemper County and charged with the said crime of murder 
in the killing of Mr. Stewart, and that they were all three



158

carried to Meridian in Lauderdale County and placed in jail; 
and that on Sunday night, the 31st day of March, 1934, Mr. 
Cliff Dial, Deputy Sheriff of Kemper County, Mississippi, 
came into the jail at Meridian in Lauderdale County, ac­
companied by Mr. Guy Jack and other people. That affiant 
was brought out into a vacant room in the jail and was 
made to strip his clothing off and was there told that he 
was going to be compelled to disclose what he had to do 
with the killing of Mr. Stewart, and the conduct of others 
who were in it with him; and that affiant knew nothing 
about who did it and had nothing to do with it himself and 
[fol. 210] he so told Mr. Dial and the other men present. 
But he was put down over an object and literally cut to 
pieces with a heavy leather strap with brass buckles on it 
and whipped until he couldn’t stand it any more; and then 
was told by Mr. Dial that he would be whipped to death 
unless he confessed to the killing and after he had almost 
been whipped to insensibility or unconsciousness, he told 
Mr. Dial he would tell anything that he asked him to tell 
and he told him what he wanted him to say about that that 
he knew was the truth, and he told him, “ Yes, he would say 
that or anything he asked to get him to stop whipping 
him” ; and the so-called confession was obtained in this 
way. He was then told by M-. Dial that he would be ap­
proached by other people there inquiring a-out the matter 
and the- he must tell them the same story for if he changed 
the story, he would be whipped again. And after Brown 
and Ellington had been terribly whipped, they were all 
three made to tell the same story and warned to stick to it 
for if they changed that story, they would be whipped to 
death.

They were then left in this miserable condition until the 
next night, being Monday night, when the jailer who was 
present when they had been whipped on Sunday night came 
and unlocked their cell and brought all three of them out 
back into the same room where they had been whipped the 
night before and they found in the room, Mr. Adcock, 
Sheriff of Kemper County and two other men, and were 
told that one of them was the Sheriff of Lauderdale County, 
Mr. Steves. We were the?/ asked to tell Mr. Adcock what 
we knew about the killing of Mr. Stewart and all started to 
say that we didn’t know anything about it when Mr. Ad­
cock stopped us and said: “ Now, this is not the truth and



159

you boys are going to have to tell the truth, your story does 
not ring right” . Thereupon, we went ahead and told him 
[fol. 211] the same thing that Mr. Cliff Dial had made us 
tell the night before, feeling sure we would be whipped 
again if we didn’t. We were so badly whipped and beaten 
and bruised that we could scarcely get down the stairway 
to the room.

When the jailer brought us out of the cell before going to 
the room, he told us, “ now, boys you will have to stick to 
the same story you told Mr. Dial last night, if you don’t you 
will be whipped again.”  And when he returned us to the 
cell, he asked if we changed our story, either of us, and we 
told him, “ No” , and he said “ It ’s a good thing you didn’t 
as you would be whipped again if you had changed your 
story ’ ’.

When on Wednesday, the 4th day of April, 1934, we were 
taken out of the jail at Meridian and carried to Dekalb in 
Kemper County and were carried to the Court House and 
we were told by the District Attorney who read a paper to 
us that we were charged with the murder of Mr. Raymond 
Stewart. And we were asked whether we were guilty 
or not, and Mr. Dial was standing there in a few feet of us, 
looking us straight in the facf at the time, and we were 
sure as soon as Court was over, we would be car-ied to jail 
in Meridian or Dekalb and if we denied it, we would be 
whipped again. So we just said, “ Well, we just as well 
plead guilty” . The judge then asked us if we wanted a 
Lawyer and we told him, we didn’t know as it would be 
any use for us to have a Lawyer. He then told us that 
he would appoint Mr. John Clark and somebody else whose 
name I didn’t remembe- as Lawyers for us and that they 
would try us tomorrow.

We were then immediately handcuffed, taken out to the 
conveyance and carried back to Meridian and put in the 
Meridian Jail. The next morning, being the 5th day of 
April, 1934, we were brought out of jail at Meridian and 
carried back to DeKalb and when we went in the Court 
[fol. 212] House, Mr. Clark asked the Judge to let him have 
a talk with us, and we were sent in a room in the Court 
House along with the Sheriff and others and Mr. Cliff 
Dial started to come in the room with us and Mr. Clark 
objected to his being in the room and the Sheriff told him to 
stay out. He stayed just on the outside of the door and



160
there was a glass in the door and we could see him. He 
was standing right there by the door watching us and would 
lean down with his ear to the keyhole in the door so he 
could hear what was going on in the room. And we were 
afraid to talk to Mr. Clark and the other Lawyer and 
afraid to deny that we killed Mr. Stewart and we could only 
talk in a whispered conversation and tell Mr. Clark we 
didn’t do it and didn’t know who did do it. Every few 
minutes Mr. Cliff Dial would open the door and stick his 
head in and say he wanted to tell the Sheriff something and 
then close the door and stand right by it and drop his ear 
down to the keyhole so as to hear what we were saying; 
about three or four times while we were trying to talk with 
Mr. Clark in this way, a messenger would come and say 
that the Judge said he didn’t want to hurry us fellows too 
much but he was anxious to go on with the trial. We then 
come on out of the room and they had some men c-lled that 
they said were the Jury and the District Attorney said 
they were an agreeable jury to him and then the Judge 
asked if they were agreeable to us and we went out in the 
room again and Mr. Clark said there are some of those men 
who are very bitter against us and the other lawyers said, 
“ Oh, go on and take that jury”  but Mr. Clark said, “ No” 
and they then agreed with him to put these men off. They 
then asked who would go out and put the men off, and each 
of them said they didn’t want to do that because they didn’t 
want to make the ghite men mad by putting them off the 
jury, so they decided to throw up a coin and decide in this 
way which one was to go and the one they selected in this 
way went back in the Court room and told them that they 
[fol. 213] were put off the jury; and then some more men 
were called and we went on with the trial which the Judge 
then said we would take a recess until the next morning at 
9 :00 o ’clock;

Then we were handcuffed, taken out and put in the con­
veyance and carried back to Meridian. The Sheriff said 
he was afraid to put us in jail in Kemper County for fear 
we would be mobbed.

The next morning, being the 6th day of April, we were 
brought over to Dekalb and they finished hearing the evi­
dence and the jury walked off into a room after the law­
yers had done some talking and come back and said we 
were each found guilty of the murder of Mr. Stewart, and



161

the judge had us stand up and as soon as he -ould look at a 
calendar, he sentenced us to be hanged and set the day for 
the hanging. Then we were handcuffed, carried out to the 
conveyance and carried back to Meridian.

We had no time or opportunity to confer with our wives 
or our relatives or even get to see them to get anybody to 
do anything -or us. We were never told that we had a 
right to have a special venire to draw jurors from; we were 
never told we had any right to make a motion for a new 
trial and we had no time to consult with our lawyers except 
as above stated. We did not know we could make a motion 
for a new trial.

I am innocent in this case. I had nothing whatever to 
do with the killing of Mr. Stewart and do not know anything 
about who killed him.

his
(Signed) Henry x Shields, 

mark

Sworn to and subscribed before me, this the 6 day of 
February, 1935. (Signed) E. D. Fondren, Circuit 
Clerk, by H. T. Ashford, Jr., D. C. (Seal.)

[File endorsement omitted.]

[fol. 214] l x  the  S upreme Court of th e  S tate of M is­
sissippi

[Title omitted.]
M otion for W rit of Certiorari—Filed March 19, 1935

Comes the State of Mississippi, appellee, acting by and 
through her Attorney General, Greek L. Rice, and moves 
the court for writ of certiorari, directed to the Clerk of the 
Circuit Court of Kemper County, Mississippi, requiring 
him to send up to the clerk of this court certified copies of 
the following entries on the minutes of the Circuit Court of 
Kemper County, Mississippi, so as to complete the record 
of the trial of the above styled and numbered cause in that

11—6653



162

court, same being number 3168 on the general docket of the 
Circuit Court of that county:

1. Order of the Circuit Court, extending the regular 
March, 1934 term for a period of two weeks, the date of 
said order being March 29th, 1934; said order being re­
corded in Minute Book 3, at page 232.

2. Order reconvening the grand jury for further 
deliberation during the two weeks extended term of the 
[fol. 215] regular March 1934 term of that court, said 
order appearing in Minute Book 3, at page 249.

3. The final report of the grand jury and petition for 
discharge, dated April 4th, 1934, and appearing in Minute 
Book 3, page 252.

4. Any and all other orders, if any, entered in said cause 
which were not sent up with the original record in this 
cause.

State of Mississippi, by Greek L. Bice, Attorney 
General, by W. D. Conn, Jr., Assistant Attorney 
General.

Certificate
I, W. D. Conn, Jr., Assistant Attorney General, in and 

for the State of Mississippi, hereby certify that I have this 
day delivered in person to Honorable Earl Brewer, of coun­
sel for appellants, a true copy of the foregoing motion for 
writ of certiorari.

Witness my signature, at Jackson, this 19th day of 
March, 1935.

W. I). Conn, Jr., Assistant Attorney General.
[Pile endorsement omitted.]

[fol. 216] Isr the  S upreme Court of the  S tate of M is­
sissippi

[Title omitted.]
Order Granting  M otion for W rit of C ertiorari—March

12, 1935

This cause this day came on to be heard on the Motion 
for certiorari filed herein and this court having sufficiently



163
examined and considered the same and being of the opin­
ion that the same should be sustained doth order and ad­
judge that said motion be and the same is hereby sustained. 
It is further ordered and adjudged that the Clerk of this 
court do issue a writ of certiorari directed to the Circuit 
Clerk of Kemper County directing him to send to this court 
instanter a certified copy of the following, to-wit:

1. Order of the Circuit Court, extending the regular 
March 1934 term for a period of two weeks, the date of said 
order being March 29th, 1934; said order being recorded in 
Minute Book 3, at page 232 thereof.

2. Order reconvening the grand jury for further delib­
eration during the two weeks extended term of the regular 
March 1934 term of that court, said order appearing in 
Minute Book 3, at page 249 thereof.

3. The final report of the grand jury and petition for 
discharge, dated April 4th, 1934 and appearing in Minute 
Book 3 at page 252 thereof.

4. Any and all other orders, if any, entered in said cause 
which were not sent up with the original record in this 
cause.

[fol. 217] In S upreme Court of M ississippi 

W rit op Certiorari 

T h e  S tate op M ississippi,

To the Clerk of the Circuit Court of Kemper County— 
Greeting:

Whereas, in the case of Ed Brown et al. vs. State No. 
31 375, now pending in our Supreme Court, a diminution 
of the record on file therein has been suggested.

You are hereby commanded to send up to our Supreme 
Court, duly certified under your hand and seal of said 
Circuit Court, a true transcript of

1. Order of the Circuit Court extending the regular 
March 1934 term for a period of two weeks, the date of 
said order being March 29th 1934; said order being re- 
orded in Minute Book 3 at page 232.

2. Order Reconvening the Grand Jury for further de­
liberation during the two weeks extended term of the reg-



164

ular March 1934 Term of that court; said order being 
corded in Minute Book 3 at page 232.

3. The final report of the grand jury and petition for 
discharge dated April 4th, 1934, and appearing in Minute 
Book 3 at page 252.

4. Any and all other orders, if any, entered in said cause 
which were not sent up with the original record in this 
cause, together with this Writ, so that the same be before 
our Supreme Court Instanter.

Herein fail not.
Witness, the Hon. Sydney Smith, Chief Justice of said 

Court, and the seal thereof, at Jackson, this the 27th day 
of March, A. D. 1935.

Tom Q. Ellis, Clerk, by (Signed) E. L. Shelton D. C.
(Seal.)

[fo l. 218] I n S upreme C ourt op M ississippi

Order E xtending  th e  M arch 1934 T erm  op C ircuit Court
por K emper County  M ississippi por 2 W eeks—Filed
March 30, 1935

March 29, 1934.
Court met persuant to adjournment. President all offi­

cers of the Court.
It appearing to the court that the business of the court 

makes it advantageous and proper to extend this term of 
court for two weeks so that the court may be able to take 
care of the business now before it. It is therefore ordered 
that this term of Court be and the same is hereby extended 
for two weeks, through Saturday, April 14, 1934.

Witness my hand this 29th day of March 1934.
J. I. Sturdivant, Judge.

Clerk’s certificate to foregoing paper omitted in printing.

[File endorsement omitted.]

[fol. 219] In S upreme Court op M ississippi

Order R ecalling th e  Grand J ury—Filed March 30, 1935
It appearing that the Grand Jury which was empaneled, 

sworn, and charged at the present term of court has been



165
discharged by the Court on a former day of this term, 
and it now being brought to the attention of this Court 
that matters of grave and serious import have transpired 
in Kemper County since the discharge of said Grand Jury 
and that it is important to the welfare of the county that 
said matters be speedily investigated by a Grand Jury, it 
is hereby ordered by the Court that said Grand Jury be 
reconvened during this term of Court to meet at 9:00 
o ’clock A. M. on the 4th day of April, 1934, and that process 
be issued by the Clerk to the Sheriff directing- him to sum­
mons all of the said Grand Jury to reconvene at said time 
and that all process for witnesses that may be desired be­
fore said Grand Jury be issued to appear before them at 
that time.

Witness my hand this the 3rd day of April, 1934.
J’. I. Sturdivant, Judge.

Clerk’s certificate to foregoing paper omitted in printing.

[File endorsement omitted.]

[fo l. 220] In  S upreme C ourt oe M ississippi

F in al  R eport op the  Grand J ury  and P etition  eor 
D ischarge

S tate oe M ississippi, 
County of Kemper:

Wed., April 4, 1934.

To the Hon. J. I. Sturdivant, Circuit Judge:
We the Grand Jury beg leave to make the following re­

port:
We have been in session since nine A. M. this date, and 

have examined six witnesses and have returned into open 
Court two true bills of indictment. We have inquired into 
all matters that came to our attention in which the wit­
nesses were reasonably available and we now respectfully 
ask to be discharged.

S. J. Davis, Foreman.
Clerk’s certificate to foregoing paper omitted in printing.

[File endorsement omitted.]



166

[fol. 221] In the Supreme Court of M ississippi 

[Title Omitted]
In Banc: Smith, C. J.

Opin io n -—On Suggestion of Error—Filed April 29, 1935
The judgment herein was affirmed on a former day and 

we then held that the court below committed no error in 
admitting! in evidence the appellants’ confessions, and that 
its error, if such it was, in admitting certain other evidence, 
was cured by its being thereafter excluded.

The appellants suggest that we erred in both holdings 
and also suggest that the judgment should be reversed for 
other reasons now asserted for the first time, and which 
will be hereinafter stated.

1. Were the confessions erroneously admitted? When 
the confessions were offered the court retired the jury and 
heard the evidence as to their competency. The appellants 
introduced no evidence then, as they should have if they 
desired to challenge the competency of the confessions, 
and it appeared without conflict from the state’s evidence 
that the confessions had been freely and voluntarily made. 
Consequently, the court committed no error in admitting 
them in evidence.

After the state closed its case on the merits the appel­
lants, for the first time, introduced evidence from which it 
appears that the confessions were not made voluntarily 
but were coerced. This evidence was given by the appel­
lants themselves who were in the court room during the 
preliminary inquiry into the competency of the confes­
sions. No request was then or thereafter made that the 
confessions be excluded from the evidence. We held that 
in the absence of such a request the court was under no 
duty to exclude the confessions and therefore could not 
be held to have erred in not so doing. In so holding we 
followed Loftin v. State, 150 Miss. 228, 116 So. 435, which 
[fol. 222] case but announced what, according to 64 0. J. 
203 and 26 R. C. L. 1054, and the authorities there cited, 
is the rule in other jurisdictions; the appellants cite Col­
lins v. State, 100 Miss. 435, 56 So. 527; Butler v. State, 146 
Miss. 505, 112 So. 685, and Fisher v. State, 145 Miss. 116, 
110 So. 361.



167
In Fisher’s case a confession competent when admitted 

was afterwards made to appear incompetent and a motion 
was then made to exclude it. In Butler’s case the court, 
after stating that the evidence was insufficient to support 
the verdict and therefore the judgment of conviction should 
be reversed, then without necessity therefor proceeded to 
say: “ We can only account for the verdict * * on the 
theory that the state’s witness * * stated * that his 
father owned a large plantation and employed considerable 
labor in the community, and that the defendant was a bad 
negro, and that he wanted to get rid of him. This state­
ment was not objected to, nor was any motion made to ex­
clude it, and of course we cannot consider it as error per 
se.”  After again stating that the evidence accounted for 
the verdict, the court said: “ It should have been excluded, 
although not objected to.’ ’ It is hardly probable that a 
division of the court there intended to overrule the court’s 
long unbroken line of decisions, beginning with Skinner v. 
Collier, 4 How. 396, that the incompetency of evidence not 
objected to was waived and that error could not thereafter 
be based thereon. Moreover, this rule has been enforced 
since Butler’s case was decided, not only in Loftin’s case, 
supra, but also in Palmer v. Fair Co., 140 Miss 294, 105 
So. 513. In Collins’ case language used by counsel in an 
argument to the jury was held to be improper, and while 
the court did say that it was the duty of the trial judge 
sua sponte to instruct the jury that such remarks were im­
proper and that they in their deliberations should not be 
governed by any such statements, the holding was beyond 
the requirements of the case, for the argument was objected 
to when made. The duty of a court sua sponte to control 
[fol. 223] the argument of counsel runs parallel in our 
decisions with the absence of a duty to exclude evidence 
not objected to. See cases cited in the Collins opinion.

Even where the court reserves its ruling on the admis­
sibility of evidence when objection thereto is made, and 
fails thereafter to rule on it, no complaint thereof can be 
made in the absence of a request made after the reservation 
for a ruling on the objection. Mallory v. Walton, 119 Miss. 
396, 81 So. 113. We must decline to overrule Loftin’s case 
and apply here a rule different from the rule applied there.

We are not here confronted with a case where the court 
was not legally organized or its functions interfered with 
by violence or threats thereof.



168

2. Was the admission of certain evidence said by the 
appellants to have been incompetent cured by its later ex­
clusion? We adhere to our former ruling without further 
discussion thereof.

The questions here raised for the first time on the sug­
gestion of error are: (1) The failure of the court below 
to exclude the confessions after the introduction of evidence 
tending to show that they were coerced, although not re­
quested so to do, violates Sections 14 and 26 of our state 
constitution and the first section of the 14th amendment to 
the federal constitution. (2) The indictment was received 
and the case tried at a time when the court below had lost 
the power so to do. (3) The appellants were tried before 
the indictment was returned, or the homicide committed. 
(4) The name of the foreman of the grand jury was not 
endorsed on the indictment as required by Section 1198, 
Code of 1930. (5) The record does not disclose that the
grand jurors who returned the indictment, or that the petit 
jurors who tried the case, were sworn.

3. Was Section 26 of the state constitution violated by 
the admission of the confessions! This section, as does the 
[fob 224] common law, provides that “ in all criminal prose­
cutions the accused * * shall not be compelled to give evi­
dence against himself” . We will assume that the admis­
sion in evidence, over the objection of the accused, of a 
confession coerced by violence is forbidden by this section 
of the constitution. Jordan v. State, 32 Miss. 382; Whip v. 
State, 143 Miss. 757,109 So. 697, but see 2 Wigmore on Evi­
dence, 2nd Ed. Sec. 823. This rule against self-crimina­
tion is not an absolute immunity but is simply a privilege, 
though sacred and important, of which the accused may 
avail himself or not at his pleasure. It may be, and is, 
waived unless specifically claimed. 70 C. J. 746; 4 Wig- 
more on Evidence, 2nd Ed. Sec. 2275; 6 Jones on Evidence, 
2nd Ed. Sec. 2489; Decell v. Lewenthal, 57 Miss. 331; Spight 
v. State, 120 Miss. 752, 83 So. 84.

This record discloses no objection to the confessions on 
the ground of self-crimination, but aside from that, they 
were competent when admitted, and, although the appel­
lants had the right and an opportunity so to do, no request 
to exclude them was made after evidence tending to show 
their incompetency was introduced.



169
4. Was Section 14 of the state constitution and Section 1 

of the 14th amendment to the federal constitution violated 
by the admission of the confessions? These sections pro­
vide that “ no person shall be deprived of life, liberty, or 
property except by due process of law.”  Immunity from 
self-crimination is not essential to due process of law. Twin­
ing v. New Jersey, 211 U. S. 78, 53 L. ed. 97; Snyder v. 
Mass., 291 U. S. 97, 78 L. ed. 674, 90 A. L. R. 575. We can 
add nothing to the discussion of this question that appears 
in the Twining case, wherein it was said: “ Salutary as the 
principle may seem to the great majority, it cannot be 
ranked with the right to hearing before condemnation, the 
immunity from arbitrary power not acting by general laws, 
[fol. 225] and the inviolability of private property. The 
wisdom of the exemption has never been universally as­
sented to since the days of Bentliam, many doubt it today, 
and it is best defended not as an unchangeable principle of 
universal justice, but as a law proved by experience to be 
expedient. See Wigmore, Ev., Sec. 225L It has no place 
in the jurisprudence of civilized and free countries outside 
the domain of the common law, and it is nowhere observed 
among our own people in the search for truth outside the 
administration of the law. It should, must, and will be rig­
idly observed where it is secured by specific constitutional 
safeguards, but there is nothing in it which gives it a sancti­
ty above and before constitutions themselves” . The opinion 
in that case sets forth the history of this privilege (as does 
Wigmore, op. cit. Secs. 2250 et seq.) disclosing its compara­
tively modern origin and its absence from our early colonial 
jurisprudence.

If the appellants mean to say that the failure of the court 
below to exclude their confessions after the introduction 
of evidence tending to show their incompetency, although 
not requested so to do, deprived them of their life or liberty 
without due process of law there can be no merit therein. 
That procedure was in accord with that applicable to all 
civil and criminal trials, recognized in all common law juris­
dictions, and did not result in arbitrarily depriving the ap­
pellants of any constitutional or common law right. This is 
all that the due process clauses of the two constitutions 
require. The authorities in support hereof are so numer­
ous as to make their citation supererogatory. Moreover, if 
the court below had erroneously overruled a motion to ex-



170

elude these confessions its ruling would have been mere 
error reversible on appeal, but would not have constituted 
denial of due process of law. Jones v. Buffalo Creek Coal 
& Coke Co., 245 U. S. 328, 62 L. ed. 325; Central Land Co. 
v. Laidley, 159 U. S. 103, 40 L. ed. 91; Bonner v. Gorman, 
213 U. S. 86, 53 L. ed. 709; Corrigan v. Buckley, 271 U. 8. 
[fol. 226] 323, 70 L. ed. 969; American Railway Express Co. 
v. Kentucky, 273 U. S. 269, 71 L. ed. 639.

Mooney v. Holohan, L. ed. Adv. Opinion, Vol. 79, p. 
347, is cited and relied on by the appellants but its relevancy 
here is not apparent. There the charge was that Mooney 
was convicted on perjury evidence, known to be such by 
the prosecuting officer, who suppressed evidence, unknown 
to Mooney, in impeachment thereof. No charge either of 
perjury or the suppression of evidence is here made. On 
the contrary, all of the facts as to the confessions being co­
erced were known to the appellants when they were offered 
and were provable by their own personal testimony.

5. When the court below received the indictment and tried 
the case on its merits, had it lost the power so to do? The 
court met in regular session on Monday, the 19th day of 
March, A. D. 1934, and was authorized by Section 473, Code 
of 1930, to remain in: session for twelve days. Before the 
expiration of this twelve days an order was duly entered 
on the minutes of the court in accordance with the provisions 
of Section 732, Code of 1930, extending the term thereof 
for two weeks. The grand jury had been discharged but 
was recalled by the court after the beginning of the ex­
tended portion of the term, returned the indictment herein, 
and the case was tried during the extended portion of the 
term. Section 732, Code of 1930, provides that “ all courts, 
the terms of which may be continued or extended shall pos­
sess and may exercise all the powers exercisable by the same 
at or during the term, or terms, which may have been so 
continued, or extended” . As we understand the appellants’ 
contention, it is that the statute does not authorize  ̂a court 
to deal in any way during the extended portion of its term 
with any matters that were not before it prior to the exten­
sion of the term. We cannot agree with this. The purpose 
of the statute is to authorize the courts to extend their reg­
ular terms and to do any and all things during the extended 
[fol. 227] portion thereof that they could have done prior 
thereto. The order extending the court’s term is as follows:



171
“ It appearing to tie court that the business of the court 

makes it advantageous and proper to extend this term of 
court for two weeks so that the court may be able to take 
care of the business now before it. It is therefore ordered 
that this term of Court be and the same is hereby extended 
for two weeks, through Saturday, April 14, 1934” .

The appellants say that this order limits the power of the 
court during the extended portion of its term to the dealing 
with such matters only as were before it when the order 
was entered. The power of the court at an extended term 
is fixed by the statute and can neither be limited nor en­
larged by any order of the court.

6. Were the appellants tried before the indictment was 
returned or the homicide committed! This contention is 
based solely on a manifest clerical error in the caption to 
the stenographer’s transcript of the evidence. This cap­
tion recites that the cause came on to be heard “ on the 25th 
day of March, 1934” . That day was Sunday, and prior to 
the beginning of the extended portion of the term. A 
recital in the caption to a transcript of the evidence in a 
case, if in conflict with the record of the trial, does not con­
trol, and it is manifest from the record that the indictment 
was returned after the homicide was committed.

7. Can the appellants now complain of the failure of the 
foreman of the grand jury to endorse his name on the in­
dictment? An objection to the failure- of the foreman of 
a grand jury to endorse his name on an indictment must be 
made in the court below and cannot be made in this court 
for the first time. Pruitt v. State, 163 Miss. 47, 139 So. 861.

8. Does the record disclose that the grand and petit ju­
ries were sworn, and if not, can the appellants’ objection 
thereto be here considered? The transcript of the record 
[fol. 228] does not contain the minutes of the court impan­
eling the grand jury but the indictment recites that the 
grand jury was duly impaneled and sworn, as also does the 
order of the court, made after the grand jury was dis­
charged, directing it to reassemble. This would seem to 
be sufficient evidence that the grand jury was in fact sworn, 
but aside from that, no objection thereto was made in the 
court below and cannot be made here for the first time. 
Marley v. State, 109 Miss. 717, 69 So. 210. For the same 
reason the objection that the petit jury was not sworn can­



172

not be here considered. Hill v. State, 112 Miss. 375, 73 
So. 66; Cummings v. State, (Miss.) 155 So. 179; Sections 
1193 and 3403, Code of 1930. Moreover, it does not here 
affirmatively appear that the grand and petit juries were 
not sworn. Hays v. State, 96 Miss. 153, 50 So. 557; Mc­
Farland v. State, 110 Miss. 482, 70 So. 563.

9. The appellants have filed what they designate as a 
motion in arrest of judgment, wherein they set forth mat­
ters said to have occurred on the trial which do not appear 
in the record. A motion in arrest of judgment will not lie 
in the supreme court. It reviews only the rulings of the 
court below complained of in an assignment of error, and 
in so doing is confined to an examination of the record made 
in the court below. It is not a court of original jurisdic­
tion, but of appellate jurisdiction only, and therefore we 
cannot here examine or consider the allegations in the mo­
tion for arrest of judgment, nor the affidavits filed in sup­
port thereof.

10. Much is said in the brief of counsel for the appellants 
in support of the suggestion of error to the effect that these 
appellants are negroes and “ stood before the trial court 
as helpless to defend themselves as sheep in a slaughter 
pen” . In justice to the court below, we must say that this 
charge is not even remotely supported by the record. It 
[fol. 229] is based probably on things stated in ex parte 
affidavits in support of the motion in arrest of judgment 
which have no place in this discussion.

Again they say that the court below failed “ to provide 
counsel, in reality, to defend”  the appellants, and “ surely 
it is cruel folly for the State to contend, in a court of jus­
tice, that these negroes are to be bound by the strictest 
and most technical rules of practice and pleading—and this 
after their right to counsel has been effectively denied” . 
No request was made of the court to continue the case, to 
pass it to a later day, or to grant the appellants any further 
time for the preparation of their case.

The attorneys who defended the appellants in the court 
below are able lawyers of extensive practice—veterans of 
many forensic conflicts; and the record does not disclose 
that they consciously failed to discharge any duty they 
owed the appellants.

The rules of procedure here applied are technical only 
in the sense that all such rules are, and what the appellants



173
request is simply that they be excepted from the procedure 
heretofore uniformly applied to all litigants. This we can­
not do. All litigants, of every race or color, are equal 
at the bar of this court, and we would feel deeply humili­
ated if the contrary could be justly said.

Nothing herein said is intended to even remotely sanction 
the method by which these confessions were obtained.

The suggestion of error will be overruled, and the sen­
tence will be executed on Thursday, the 6th day of June, 
1935.

So ordered.

[File endorsement omitted.]

[fol. 230] lx  th e  S upreme C ourt op M ississippi 

In Banc: Griffith, J., Dissenting 
On Suggestion of Error.

The crime with which these defendants, all ignorant 
negroes, are charged was discovered about one o ’clock P. M. 
on Friday, March 30, 1934. On that night one Dial, a 
deputy sheriff, accompanied by others, came to the home of 
Ellington, one of the defendants, and requested him to ac­
company them to the house of the deceased, and there a 
number of white men were gathered, who began to accuse 
the defendant of the crime. Upon his denial they seized 
him, and with the participation of the deputy they hanged 
him by a rope to the limb of a tree, and having let him 
down they hung him again, and when he was let down the 
second time, and he still protested his innocence, he was 
tied to a tree and whipped, and still declining to accede to 
the demands that he confess, he was finally released and he 
returned with some difficulty to his home suffering intense 
pain and agony. The record of the testimony shows that 
the signs of the rope on his neck were plainly visible during 
the so-called trial. A day or two thereafter the said deputy, 
accompanied by another, returned to the home of the said 
defendant and arrested him and departed with the prisoner 
towards the jail in an adjoining county, but went by a route 
which led into the State of Alabama; and while on the way, 
in that State, the deputy stopped and again severely 
whipped the defendant, declaring that he would continue



174

the whipping until he confessed, and the defendant then 
[fol. 231] agreed to confess to such a statement as the 
deputy would dictate, and he did so, after which he was de­
livered to jail.

The other two defendants, Ed Brown and Henry Shields, 
were also arrested and taken to the same jail. On Sunday 
night, April 1, 1934, the same deputy, accompanied by a 
number of white men, one of whom was also an officer, and 
by the jailer, came to the jail, and the two last named de­
fendants were made to strip and they were laid over chairs 
and their backs were cut to pieces with a leather strap with 
buckles on it, and they were likewise made by the said 
deputy definitely to understand that the whipping would be 
continued unless and until they confessed, and not only con­
fessed, but confessed in every matter of detail as demanded 
by those present; and in this manner the defendants con­
fessed the crime, and as the whippings progressed and were 
repeated they changed or adjusted their confession in all 
particulars of detail so as to conform to the demands of 
their torturers. When the confessions had been obtained in 
the exact form and contents as desired by the mob, they left 
with the parting admonition and warning that if the de­
fendants changed their story at any time in any respect 
from that last stated, the perpetrators of the outrage would 
administer the same or equally effective treatment.

Further details of the brutal treatment to which these 
helpless prisoners were subjected need not be pursued. It 
is sufficient to say that in pertinent respects the transcript 
reads more like pages torn from some medieval account, 
than a record made within the confines of a modern civiliza­
tion which aspires to an enlightened constitutional govern­
ment.

All this having been accomplished, on the next day, that 
is on Monday, April 2, when the defendants had been given 
time to recuperate somewhat from the tortures to which 
they had been subjected, the two sheriffs, one of the county 
[fol. 232] where the crime was committed, and the other of 
the county of the jail in which the prisoners were confined, 
came to the jail, accompanied by eight other persons, some 
of them deputies, there to hear the free and voluntary con­
fession of these miserable and abject defendants. The 
sheriff of the county of the crime admitted that he had 
heard of the whipping, but averred that he had no personal



175

knowledge of it. He admitted that one of the defendants, 
when brought before him to confess, was limping and did 
not sit down, and that this particular defendant then and 
there stated that he had been strapped so severely that he 
could not sit down, and as already stated, the signs of the 
rope on the neck of another of the defendants were plainly 
visible to all. Nevertheless the solemn farce of hearing the 
free and voluntary confessions was gone through with, and 
these two sheriffs and one other person then present were 
the three witnesses used in court to establish the socalled 
confessions, which were received by the court and admitted 
in evidence over the objections of the defendants duly en­
tered of record as each of the said three witnesses delivered 
their alleged testimony. There was thus enough before the 
court when these confessions were first offered to make 
known to the court that they were not, beyond all reason­
able doubt, free and voluntary ; and the failure of the court 
then to exclude the confessions is sufficient to reverse the 
judgment, under every rule of procedure that has hereto­
fore been prescribed, and hence it was not necessary subse­
quently to renew the objections by motion or otherwise.

The spurious confessions having been obtained—and the 
farce last mentioned having been gone through with on 
Monday, April 2nd—the court, then in session, on the fol­
lowing day, Tuesday, April 3rd, 1934, ordered the grand 
jury to reassemble on the succeeding day, April 4th, 1934, 
[fol. 233] at nine o ’clock, and on the morning of the day 
last mentioned the grand jury returned an indictment 
against the defendants for murder. Late that afternoon 
the defendants were brought from the jail in the adjoining 
county and arraigned, when one or more of them offered to 
plead guilty, which the court declined to accept, and upon 
inquiry whether they had or desired counsel they stated 
that they had none, and did not suppose that counsel could 
be of any assistance to them. The court thereupon ap­
pointed counsel, and set the case for trial the following 
morning at nine o ’clock, and the defendants were returned 
to the jail in the adjoining county about thirty miles away.

The defendants were brought to the courthouse of the 
county on the following morning, April 5th, and the so- 
called trial was opened, and was concluded on the next day, 
April 6th, 1934, and resulted in a pretended conviction with 
death sentences. The evidence upon which the conviction



176

was obtained was the so-called confessions. Without this 
evidence a peremptory instruction to find for the defendants 
would have been inescapable. The defendants were put on 
the stand, and by their testimony the facts and the details 
thereof as to the manner by which the confessions were ex­
torted from them were fully developed, and it is further dis­
closed by the record that the same deputy, Dial, under whose 
guiding hand and active participation the tortures to coerce 
the confessions were administered, was actively in the per­
formance of the supposed duties of a court deputy in the 
courthouse and in the presence of the prisoners during 
what is denominated, in complimentary terms, the trial of 
these defendants. This deputy was put on the stand by the 
state in rebuttal, and admitted the whippings. It is inter­
esting to note that in his testimony with reference to the 
whipping of the defendant Ellington, and in response to 
the inquiry as to how severely he was whipped, the deputy 
stated, “ Not too much for a negro; not as much as I would 
have done if it were left to me. ’ ’ Two others who had par- 
[fol. 234] ticipated in these whippings were introduced and 
admitted it—not a single witness was introduced who de­
nied it. The facts are not only undisputed, they are ad­
mitted—and admitted to have been done by officers of the 
state, in conjunction with other participants, and all this 
was definitely well known to everybody connected with the 
trial, and during the trial, including the State’s prosecuting 
attorney and the trial judge presiding.

We have already mentioned that counsel were appointed 
on the afternoon before the trial opened on the following 
morning, and that in the meantime the prisoners had been 
taken away to an adjoining county. Counsel were thus 
precipitated into the case and into the trial without op­
portunity of preparation either as to the facts or the law. 
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 165. With­
out having had opportunity to prepare, they assumed— 
erroneously as the majority now say—that the objections 
interposed when the so-called confessions were being intro­
duced in chief were technically sufficient, and did not later 
move to exclude them when, under the undisputed testi­
mony and the admissions of the state itself, it was fully 
developed that the confessions had been coerced, and that 
they were not receivable as evidence; and now the case of 
Loftin v. State, 150 Miss. 228, is seized upon as a means of



177

sanctioning the appalling violation of fundamental consti­
tutional rights openly disclosed by this record—undisputed 
and admitted.

The case of Loftin v. State, when carefully examined, is 
not the case now before us, and ought not to be forced into 
service under the facts now being considered. No officer of 
the state had any part in the confessions in that case, the 
prosecuting officer of the State did not use the confession, 
knowing it was coerced, the weight of the testimony was 
that the confession was actually and in fact voluntary. The 
case now before us is thus separated from the Loftin case, 
in vital principle, as far as the east from the west. The 
case which is applicable and ought to be controlling here is 
Fisher v. State, 145 Miss. 116. There the alleged confession 
[fol. 235] was obtained in the jail by torture in the presence 
of the sheriff. Defendant’s counsel did not object as he 
should have done under the rules of procedure when the con­
fession was offered and admitted, but later and out of time 
moved to exclude. The conviction was sought to be main­
tained, as in the case now before us, on the ground that the 
defendant had not raised or interposed his objection to the 
alleged confession in the manner required by the procedural 
law. In reversing the sentence this Court in banc said: 
“ Coercing the supposed state’s criminals into confessions 
and using such confessions so coerced from them in trials 
against them has been the curse of all countries. It was 
the chief iniquity, the crowning infamy, of the Star Cham­
ber, and the Inquisition and other similar institutions. The 
constitution recognized the evils that lay behind these prac­
tices and prohibited them in this country. * * * The
duty of maintaining constitutional rights of a person on 
trial for his life rises above mere rules of procedure, and 
wherever the Court is clearly satisfied that such violations 
exist, it will refuse to sanction such violations and will 
apply the corrective’ ’. See also People v. Winchester, 352 
111. 237, 245, 185 N. E. 580; State v. Griffin, 129 S. C. 200, 
35 A. L. K. 1227; Williams v U. S., 66 Fed (2nd) 868; 
Boothe v. U. S., 52 Fed. (2nd) 192, 197; Addis v. IT. S., 62 
Fed. (2nd) 329; Commonwealth v. Belinske, 176 N. E. 501; 
Mack v. State, 180 N. E. 279; Hagood v. Commonwealth, 
162 S. E. 10; State v. Hester, 137 S. C. 145, 162; Osteen v. 
State, 92 Fla. 1063, 1075; People v. Brott, 163 Mich. 150;

12—6653



178

People v. Bartley, 108 Pac. 868, 870; State v. Frost, 134 
Wash. 48, 50.

To my mind it would be as becoming a court to say that 
a lynching party has become legitimate and legal because 
the victim, while being hung by the mob, did not object in 
[fol. 236] the proper form of words at precisely the proper 
stage of the proceedings. In my judgment there is no 
proper form of words, nor any proper stage of the proceed­
ings in any such case as the record of the so-called trial 
now before us disclosed; it was never a legitimate pro­
ceeding from beginning to end—it was never anything but a 
factitious continuation of the mob which originally insti­
tuted and engaged in the admitted tortures. If this judg­
ment be affirmed by the Federal Supreme Court, it will be 
the first in the history of that court wherein there was 
allowed to stand a conviction based solely upon testimony 
coerced by the barbarities of executive officers of the state, 
known to the prosecuting officers of the state as having been 
so coerced, when the testimony was introduced, and fully 
shown in all its nakedness to the trial judge before he closed 
the case and submitted it to the jury, and when all this is 
not only undisputed, but is expressly and openly admitted. 
C. F. Mooney v. Holohan, 55 S. Ct. (U. S.) 340. The Scotts- 
boro cases are models of correct constitutional procedure 
as compared with this now before the Court. In funda­
mental respects, it is no better than the case reviewed in 
Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543, wherein the 
formal court procedure was without defect, but the judg­
ment was vitiated by the substance of what actually lay 
behind it.

It may be that in a rarely occasional case which arouses 
the flaming indignation of a whole community, as was the 
case here, we shall continue yet for a long time to have 
outbreaks of the mob or resorts to its methods. But if mobs 
and mob methods must be, it would be better that their 
existence and their methods shall be kept wholly separate 
from the courts; that there shall be no blending of the de­
vices of the mob and of the proceedings of the courts; that 
what the mob has so nearly completed let them finish, and 
[fol. 237] that no court shall by adoption give legitimacy 
to any of the works of the mob, nor cover by the frills and 
furbelows of a pretended legal trial the body of that which 
in fact is the product of the mob, and then by closing the



eyes to actualities, complacently adjudicate that the law of 
the land has been observed and preserved.

Anderson, J., concurs in this dissent.

179

[fol. 238] In the  S upreme Court op M ississippi 

[Title omitted]
Order Overruling S uggestion of E rror— A p ril 29, 1935

This cause this day came on to be heard on the sugges­
tion of error filed herein and this court having sufficiently 
examined and considered the same and being of the opin­
ion that the same should be overruled doth order and ad­
judge that said suggestion of error be and the same is 
hereby overruled. It is further ordered and adjudged 
that the appellants, Ed Brown, Henry Shields and Yank 
Ellington, for such their crime of murder, on the 6th day 
of June 1935, between the hours of 10 o ’clock A. M. and 
4 o ’clock P. M. within the jail yard of Kemper County or 
at such other convenient place as the Board of Supervisors 
of Kemper County may designate, they, the said Ed. Brown, 
Henry Shields and Yank Ellington, be, by the sheriff of 
Kemper County, hanged by the necks until they are dead. 
It is further ordered and adjudged that the County of 
Kemper do pay the costs of this appeal to be taxed, etc.

[fol. 239] In th e  S upreme Court of th e  S tate of M issis­
sippi

[Title omitted]
P etition  of E d B row n , Y an k  E llin gton , and H enry 

S hields, A ppellants, for an  Order S taying  th e  E xecu­
tion and E nforcement of the  J udgment of th e  Su­
preme C ourt of the  S tate of M ississippi, to E nable S aid 
A ppellants to A pply  for and Obtain  W rit of Certio­
rari from th e  S upreme Court of the  U nited S tates—  
Filed May 6, 1935

To Honorable Sidney Smith, Chief Justice of the Su­
preme Court of the State of Mississippi:
Your petitioners, Ed Brown, Yank Ellington, and Henry 

Shields, respectfully present this, their application for



180

an order staying the execution and enforcement of the judg­
ment of the Supreme Court of Mississippi, rendered in the 
above styled cause on the 29th day of April, 1935, under 
the provisions of Section 350, of Title 28, of the United 
States Code, to enable said petitioners to apply for and 
obtain a writ of certiorari from the Supreme Court of the 
United States.

The grounds upon which said petition for certiorari will 
be based are as follows:

That said petitioners have been denied rights, privileges 
and immunities, specially set up and claimed by them, un­
der the Fourteenth Amendment to the Constitution of the 
United States, and under Sections 14 and 26 of the Consti­
tution of the State of Mississippi.
[fob 240] The reasons why a stay is deemed necessary are 
as follows:

To allow sufficient time for the preparation and submis­
sion of petition for writ of certiorari, and brief in support 
thereof, to the Supreme Court of the United States, and the 
preparation of the record in said cause; and to allow suffi­
cient time for the consideration of said petition by the 
Supreme Court of the United States; and in event said 
petition is granted, to allow sufficient time for a considera­
tion of the cause on its merits.

This the 6th day of May, 1935.
Signed: Brewer & Hewitt, Counsel for Petitioners.

[File endorsement omitted.]

[fol. 241] I n th e  S upreme Court of M ississippi 

[Title omitted]

Order Granting  S tay— May 6, 1935

It is ordered that the mandate of this court be, and the 
same is hereby stayed, pending appellants’ petition in the 
Supreme Court of the United States for a writ of certiorari 
to this court, and pending a consideration, by the Supreme 
Court of the United States, of said cause on its merits, in 
the event of the issuance of said writ of certiorari by said 
Court.



181
Said stay, however, is conditioned upon the presentation 

of said petition for certiorari, in the Supreme Court of the 
United States, within the time required by law.

Signed: Sidney Smith, Chief Justice of the Supreme 
Court of the State of Mississippi.

[File endorsement omitted.]

[ fo b  242] Isr the  S upreme Court of th e  S tate of
M ississippi

[Title omitted]

P raecipe for T ranscript of R ecord 

T o the Clerk of the Above Court:
You are hereby requested to make a transcript of record 

to be filed in the Supreme Court of the United States, in 
connection with petition for certiorari to the Supreme Court 
of the State of Mississippi, and to include in such tran­
script of record the following, and no other papers and ex­
hibits, to-wit :

Opening of Circuit Court of Kemper County, Miss.
Indictment.
Capias.
Arraignment.
Verdict of Jury.
Sentence.
Transcript of Evidence by Official Court Reporter.
Certificate of Court Reporter.
Instructions for the State.
Instructions for the Defendants.
Petition for Appeal.
Notice to Official Stenographer to Transcribe Testimony.
Pauper’s Oath.
Certificate of Circuit Clerk.
Assignment of Errors.
Argument and Submission.
Majority Opinion of Court.
Dissenting Opinion.
Judgment of Supreme Court of Mississippi.



182

[fol. 243] Petition for Additional Time for Filing Sug­
gestion of Error.

Order Granting Additional Time.
Suggestions of Error.
Motion in Arrest of Judgment.
Affidavit of John A. Clark.
Affidavit of Yank Ellington.
Affidavit of Ed Brown.
Affidavit of Henry Shields.
Motion for Writ of Certiorari.
Order Sustaining Motion.
Additional Record brought up by Certiorari.
Majority Opinion of Court on Suggestion of Error. 
Dissenting Opinion of Court on Suggestion of Error. 
Order Overruling Suggestion of Error, and Final Judg­

ment.
Petition for Stay of Execution.
Order Granting Stay of Execution.
This praecipe and service thereon.
Your certificate to the record that it is a complete record 

in said cause.
This the 31st day of May, 1935.

(Signed) Brewer & Hewitt, Attorneys for Appellant.

Service of above praecipe accepted and asknowledged, this 
the 31 day of May, 1935.

(Signed) Greek L. Rice, Attorney General of the 
State of Mississippi, by W. D. Conn, Jr., Asst. 
Atty. Gen.

[fol. 244] Clerk’s certificate to foregoing record omitted 
in printing.

(6653-C)



183

[fol. 245] Supreme Court op the U nited States

Order A llowing Certiorari— Filed October 14, 1935

The petition herein for a writ of certiorari to the Su­
preme Court of the State of Mississippi is granted. And 
it is further ordered that the duly certified copy of the tran­
script of the proceedings below which accompanied the pe­
tition shall be treated as though filed in response to such 
writ.

(7179-C)





7 /

SUPREME COURT OF THE UNITED

WSe« SupfMM OtSH| tt> t
F I T W, Ti

JUL 29 1935

fMARLES EfJKUHE onmiY 
max

STATES

OCTOBER TERM, 1935.

No. 301

ED BROWN, HENRY SHIELDS and YANK 
ELLINGTON,

Petitioners,
■; -versus

STATE OF MISSISSIPPI

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF MISSISSIPPI 
AND BRIEF IN SUPPORT THEREOF.

J. Morgan Stevens,
E arl B rewer,
W illiam H. H ewitt, 

Counsel for Petitioners.



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INDEX.

Subject Index.
Page

P etition  fo r  w rit  o f  c e r t io r a r i...............................................................................  1
Sum m ary statem ent o f  m atter in v o lv e d ......... ........................................  1
R easons relied  on fo r  a llow ance o f  w r it ................................................ 7

1. T h e  Suprem e C ourt o f  the State o f  M ississippi lias de­
cided  the F edera l qu estion s herein  involved, in  a m an­
ner d irectly  in  con flict w ith  the decision s o f  the 
Suprem e C ourt o f  the U nited  S ta tes ..................................  7

2. D ue process o f  law , as guaranteed by  the F ourteenth
A m endm ent o f  the C onstitution  o f  the U nited States, 
has been denied to petitioners, by  the State o f  M is­
sissippi, in  t h a t ...............................................................................  7
(a )  A fa ir  and ju st  hearing has been denied to peti-

, t ioner by  the fra u d  o f  the State in  its know ing
use o f  illega l and incom petent ev id en ce ................  7

(b )  A  fa ir  and ju st  hearing has been denied to peti­
tioners b y  the State o f  M ississippi, in  that 
petitioners w ere, in  rea lity , denied counsel, in  
the tria l o f  said  c a u s e ....................................................  8

( c )  T h e  tria l cou rt entered its  ju d gm en t against p e­
titioners, and sentenced them  to death, at a  tim e 
w hen it  had  lost ju r isd iction  o f  sa id  cause, by 
the denial o f  due p rocess o f  law  to petitioners, 
in  the tria l o f  the c a s e ....................................................  8

(d )  E qual p rotection  o f  the law s, w ith in  the m eaning
o f  the F ourteen th  A m endm ent to the F ederal 
C onstitution, has been denied petitioners, in  that 
no opportun ity  w as a llow ed  by the tria l court 
fo r  m otion  fo r  a new  tria l, and the Suprem e 
C ourt o f  the State o f  M ississippi refused  a con ­
sideration  o f  sam e, w hen filed th ere in ..................  8

(e )  T he decision  o f  the Suprem e C ourt o f  M ississippi
is, itse lf, a  denial o f  due p rocess o f  law , in that 
said  decision  arb itrar ily  denies to petitioners 
fu ndam ental r i g h t s ......................    8

3. T here is  no State question sufficient to  support the d e­
cision  o f  the court, to  the exclu sion  o f  the F ederal 
question  involved

P ra y er  fo r  w r i t .......................
B r ie f su pportin g petition  fo r  w r i t .................................................................... 11

I. O pinions o f  C ourt b e lo w ............................................................................  11
II. J u risd ic tion ....................................................................................................... 12

—6656-C

CD
 

CD





SUPREME COURT OE THE UNITED STATES
OCTOBER TERM, 1935.

No. 301

ED BROWN, HENRY SHIELDS and YANK 
ELLINGTON,

Petitioners,
versus

STATE OF MISSISSIPPI.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF MISSISSIPPI.

To the Honorable the Supreme Court of the United States:

Your petitioners respectfully show:

I.
Summary and Short Statement of Matter Involved.

The question involved in this cause is whether petitioners 
received the benefit of due process of law, within the mean­
ing of the Fourteenth Amendment to the Constitution of 
the United States, in their trial for murder, in the Circuit 
Court of Kemper County, Miss., and on their appeal to the 
Supreme Court of the State of Mississippi, from the judg­
ment of said court, and sentence of death imposed therein.

Final judgment has now been entered against these peti­
tioners by the Supreme Court of the State of Mississippi, 
the court of last resort in this state.

lb



2

It is the contention of petitioners that due process of law, 
within the meaning of the Fourteenth Amendment to the 
Federal Constitution, was denied to them, in that the State 
of Mississippi contrived their conviction by the knowing 
use of illegal and incompetent evidence, secured by officers 
and agents of the State in gross violation of the law.

The illegal and incompetent evidence here complained of 
consisted of incriminating statements secured from peti­
tioners by officers of the State through the subjection of 
petitioners to physical torture, said statements being 
fraudulently offered by the State, on petitioners’ trial, as 
free and voluntary confessions, and in defiance of Section 
26 of the Constitution of the State of Mississippi, the 
pertinent portion of which reads:

“ In all criminal prosecutions the accused shall have 
a right to be heard by himself or counsel, or both, to 
demand the nature and cause of the accusation, to be 
confronted by the witnesses against him, to have com­
pulsory process for obtaining witnesses in his favor, 
and, in all prosecutions by indictment or information, 
a speedy and public trial by an impartial jury of the 
county where the offense was committed; and he shall 
not he compelled to give evidence against himself;’ ' 
(Italics ours.)

Petitioners further contend that they were denied due 
process of law, within the meaning of the Fourteenth 
Amendment to the Federal Constitution, in that their right 
to counsel, on said trial, was, in reality denied to them.

That they were denied due process of law, in that the 
trial judge entered judgment against them, and sentenced 
petitioners to death, at a time when he had lost jurisdiction 
of the cause through the denial to petitioners of fundamen­
tal rights. That no opportunity was afforded them to make 
proper motion for a new trial.

Further, that the decision of the Supreme Court of Mis­
sissippi is, itself, a denial of due process of law, in that



3

said decision arbitrarily denies to petitioners fundamental 
rights, guaranteed by the Federal Constitution.

It is contended by the State that its use of said confes­
sions, in evidence, does not amount to a denial of due 
process of law, as guaranteed by the Federal Constitution, 
in that immunity from self-incrimination is not, in itself, 
an essential to due process of law.

That there was no denial of due process of law in the 
failure of the trial court to exclude said evidence of confes­
sions, when its incompetency became apparent, in that no 
motion was made by petitioners to exclude same.

That Motion in Arrest of Judgment, and for New Trial 
came too late.

That there is no showing on the record that petitioners 
were, in reality, denied counsel by the trial court, in that 
the record does not disclose the conscious failure of counsel 
to discharge their duty.

Statement of Facts.

Petitioners, three ignorant negroes, (R. 126, 39, 51, 112) 
were indicted Wednesday, April 4, 1934, (R. 1) at an 
extension of the March term of the Circuit Court of Kem­
per County, Mississippi, (R. 164) for the murder of a white 
planter, (R. 77, 66, 67) Raymond Stewart, whose death 
occurred, (R. 8, 11) in said county on Friday of the week 
previous. (R. 6, 10.)

On a date not directly disclosed by the record, but, pre­
sumably, immediately following indictment, petitioners 
were arraigned, pled “ Not Guilty”  (R. 2) and counsel was 
appointed by the court to defend them. (R. 54). On the next 
day after indictment, April 5, 1934, petitioners were put on 
trial for their lives. (R. 3.)

On said trial the state based its charge of murder on al­
leged confessions, which it offered as freely and voluntarily

2 b



4

made by petitioners, (R. 25, 35, 37, 39), while confined in the 
Meridian (Lauderdale County) jail, (R. 25, 34, 38) for safe­
keeping. (R. 23, 70.)

At the request of petitioners’ counsel a preliminary ex­
amination was had of Sheriff Adcock (R. 20) the first wit­
ness by whom the state sought to prove the confessions, to 
determine whether the confessions were free and voluntary. 
Said examination revealed that during the early part of 
the questioning petitioners held back, and refused to make 
a complete statement, (R. 23), but under pressure began to 
talk (R. 23-24) and were then constantly corrected by Ad­
cock when their statements met with his disapproval. (R. 
23-24.) The sheriff admitted hearing of a prior confession 
(R. 24) and that at this time one of the petitioners bore 
marks of physical mistreatment, which the negro informed 
him was the result of whippings (R. 24), but that he was not 
advised and did not inquire concerning the details. (R. 
24.)

Petitioners’ objection to the introduction of the pur­
ported confessions was thereupon overruled (R. 25) and 
the testimony of Sheriff Adcock, and others who were with 
him at the time of said statements, was then admitted over 
repeated objections (R. 25, 35, 41), after which the state 
rested its case. (R. 41.)

Whereupon petitioners, in their own defense, testified 
that the alleged confessions were false (R. 43, 59, 66, 71) 
and procured by officers of the state, and others, by force 
and violence, enroute to, and in the Meridian jail. (R. 43, 58, 
59, 71.) That they denied guilt until cruelly beaten (R. 43, 
59, 70, 71) and threatened with death (R. 47) if necessary 
to coerce a confession; and that they were threatened with 
further punishment if they changed their story. (R. 60, 61, 
55, 72.)

That on the night following the whippings the petitioners 
were subjected to questioning by Sheriff Adcock of Kemper



5

County and Sheriff Stevens of Lauderdale County, and 
certain other officers and persons, (R. 43, 59, 71, and that 
they repeated the stories they were forced to make under 
the lash because of fear of further punishment. (R. 60, 61, 
55, 72.)

The record shows that during the trial the scars and 
wounds of petitioners were plainly visible, and that the 
attention of the court and jury was directed thereto. (R. 
43, 69, 72.)

The state offered in rebuttal the testimony of a deputy 
sheriff, and certain others, who admitted that the negroes 
denied guilt until whipped. (R. 102, 106, 112, 113, 114).

An examination of the record will disclose that the only 
evidence of consequence, against petitioners, was the so- 
called “ confessions.”  (See opinions, R. 135, 175-176.)

After hearing the evidence, argument of counsel, and 
instructions of the court, the jury returned a verdict of 
“ Guilty”  as to each of the petitioners; (R. 2-3) whereupon 
the court entered its judgment, and sentenced petitioners to 
be hung by the neck until dead. (R. 3.)

From this judgment petitioners appealed to the Supreme 
Court of Mississippi (R. 125) assigning as the principal 
ground of error the admission of said incriminating state­
ments, as purported confessions. (R. 127.)

The Supreme Court affirmed the judgment of the lower 
court in the decision rendered by it on appeal, (R. 127), 
and entered its judgment, (R. 137) resetting the date for 
execution, a dissenting opinion being delivered by Justice 
Anderson. (R. 135.)

Petitioners thereupon filed in the Supreme Court of 
Mississippi their Suggestion of Error, (R. 138), said Sug­
gestion asserting the Federal questions with reference to 
denial of due process of law, within the meaning of the 
Fourteenth Amendment to the Constitution of the United 
States, as hereinbefore set out. (P. 2.)



6

As an accompaniment to the Suggestion of Error, a Mo­
tion in Arrest of Judgment, and For a New Trial was filed; 
(R. 141) said Motion being filed in the appellate court, as 
stated therein, under the theory that no opportunity had 
been afforded in the lower court for filing same. Said Mo­
tion was supported by affidavits of petitioners (R. 149, 153, 
157) and counsel (R. 146) appointed by the lower court to 
represent them in the trial; said affidavits setting forth the 
manner in which the alleged confessions were coerced, and 
the further facts that counsel had no access to petitioners 
for sufficient time to allow preparation of the case, or to 
acquaint counsel with the facts.

The Suggestion of Error was overruled by the Court, and 
final judgment entered (R. 179). In its opinion on said 
Suggestion of Error, (R. 166) the court held, in regard to 
the Federal questions raised by petitioners, that immunity 
from self-incrimination is not essential to due process of 
law, within the meaning of the 14th Amendment to the 
Federal Constitution; and that failure to exclude confes­
sions which were competent when admitted, after introduc­
tion of evidence tending to show their incompetence, in ab­
sence of request so to do, does not deny due process of law, 
within the meaning of the 14th Amendment to the Federal 
Constitution.

The court further held that the record does not disclose 
that counsel appointed by the court consciously failed to 
discharge any duty they owed appellants; and the court de­
clined to consider the Motion in Arrest of Judgment and 
For New Trial, on the ground that said Motion would not 
lie in the Supreme Court, same being a court of appellate 
jurisdiction only.

A dissenting opinion was delivered by Justice Griffith, 
concurred in by Justice Anderson. (R. 173.)

In its final judgment, the Supreme Court re-set the date 
of execution of petitioners for June 6, 1935. (R. 179.)



7

Pursuant to Petition for Stay of Execution, (R. 179) the 
Supreme Court of Mississippi entered its order (R, 180) 
staying the execution of petitioners for a sufficient time to 
allow the presentation to this Honorable Court of Petition 
for Certiorari.

II.
Reasons Relied on for the Allowance of the Writ.

1. The Supreme Court of the State of Mississippi has 
decided the Federal questions herein involved, in a manner 
directly in conflict with the decisions of the Supreme Court 
of the United States, in the following cases:

Mooney v. Holohan, ------U. S.  ------ , 79 L. Ed. 347;
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 Sup. 

Ct. Rep. 55;
Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674, 54 

Sup. Ct. Rep. 330;
Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543, 43 Sup. 

Ct. Rep. 265;
Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 

Sup. Ct. Rep. 14;
Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262;
In re Nielsen, 131 U. S. 176, 33 L. Ed. 118;
In re Bonner, 151 U. S. 242, 38 L. Ed. 149.

2. Due process of law, as guaranteed by the Fourteenth 
Amendment of the Constitution of the United States, has 
been denied to petitioners, by the State of Mississippi, in 
that:

(a) A fair and just hearing has been denied to peti­
tioners by the fraud of the State in its knowing use of ille­
gal and incompetent evidence, secured by officers and agents 
of the State, in violation of the law.

Mooney v. Holohan, -------U. S .-------, 79 L. Ed. 347;
Moore v. Dempsey, 261 U. S. 86, 67. L. Ed. 543, 43 Sup. 

Ct. Rep. 265;
3b



8

Powell v. Alabama, 287 U. S. 45, 77 L, Ed. 158, 53 Sup.
Ct. Eep. 55;

Chicago, B. & Q. R. R. v. Chicago, 166 U. S. 226, 41
L. Ed. 979,17 Sup. Ct. Eep. 581;

Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839,20 Sup. Ct.
Eep. 687;

Ex parte Commonwealth of Va., 100 U. S. 339, 25 L. Ed.
676.

(b) A fair and just hearing has been denied to peti­
tioners by the State of Mississippi, in that petitioners were, 
in reality, denied counsel, in the trial of said cause.

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 Sup.
Ct. Eep. 55.

(c) The trial court entered its judgment against peti­
tioners, and sentenced them to death, at a time when it had 
lost jurisdiction of said cause, by the denial of due process 
of law to petitioners, in the trial of the case.

In re Nielsen, 131 IT. S. 176, 33 L. Ed. 118;
In re Bonner, 151 IT. S. 242, 38 L. Ed. 149, 14 Sup. Ct.

Eep. 323;
Powell v. Alabama, 287 IT. S. 45, 77 L. Ed. 158, 53 Sup.

Ct. Eep. 55.
(d) Equal protection of the laws, within the meaning of 

the Fourteenth Amendment to the Federal Constitution, has , 
been denied petitioners, in that no opportunity was allowed 
by the trial court for Motion for a New Trial, and the Su­
preme Court of the State of Mississippi refused a considera­
tion of same, when filed therein.

State v. Guerringer, 265 Mo. 408, 178 S. W. 65;
Duncan v. Missouri, 152 IT. S. 382.

(e) The decision of the Supreme Court of Mississippi is, 
itself, a denial of due process of law, in that said decision 
arbitrarily denies to petitioners fundamental rights.



9

Snyder v. Massachusetts, 291 U. S. 97; 78 L. Ed. 674, 
54 Sup. Ct. Rep. 330;

Twining v. New Jersey, 211 U. S. 78;
Rogers v. Peek, 199 II. S. 425;
Maxwell v. Dow, 176 U. S. 581;
Hurtado v. California, 110 U. S. 516;
Frank v. Mangum, 237 U. S. 309;
Powell v. Alabama, 287 U. S. 45, 67;
Mooney v. Holohan,------U. S .-------, 79 L. Ed. 347.

3. There is no state question sufficient to support the 
decision of the court, to the exclusion of the Federal ques­
tion involved.

W herefore petitioners pray that a writ of certiorari issue 
under the seal of this Court, directed to the Supreme Court 
of the State of Mississippi, commanding said court to cer­
tify and send to this Court a full and complete transcript of 
the record and all proceedings in the case numbered and en­
titled on its docket “ No. 31,375, Ed Brown, et al., versus 
The State of Mississippi,”  to the end that this cause may 
be reviewed and determined by this Court, as provided for 
by the statutes of the United States; and that the judgment 
herein of said Supreme Court of the State of Mississippi be 
reversed by the Court, and for such further relief as to this 
Court may seem proper.

Dated, July 3, 1935.

E d B rown,
H enry Shields,
Y ank E llington,

B y J. M organ Stevens,
E arl B rewer,
W illiam  H. H ewitt, 

Counsel for Petitioners.





/ /

SUPREME COURT OE THE UNITED STATES
OCTOBER TERM, 1935.

No. 301

ED BROWN, HENRY SHIELDS aud  YANK 
ELLINGTON,

Petitioners,
versus

STATE OF MISSISSIPPI

BRIEF IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI.

I.

The majority opinion of the Supreme Court of Missis­
sippi, (R. 127) ------Miss.------- , 158 So. 339, was rendered
January 7, 1935.

The dissenting opinion, by Justice Anderson, of the Su­
preme Court of Mississippi, (R. 135)------Miss.------- , 158 So.
343, was rendered January 7, 1935.

The majority opinion of the Supreme Court of Missis­
sippi, on Suggestion of Error, (R. 166)------Miss. ——-, Ad­
vance Sheet No. 3, Vol. 161 So. 465, was rendered April 
29,1935.



12

The dissenting opinion on Suggestion of Error, deliv­
ered by Justice Griffith, Anderson, j., concurring (E. 173)
— — Miss.----- , Advance Sheet No. 3, Vol. 161 So. 470, was
rendered April 29, 1935.

II.

Jurisdiction.

1. The date of the judgment to be reviewed is April 29, 
1935. (E. 179.)

2. The statutory provision which is believed to sustain 
the jurisdiction of this Court is Section 237 of the Judicial 
Code,- as amended by Act of February 13, 1925; 43 Statutes 
at Large 937, Section 344 IT. S. C. A., Title 28.

3. In their Suggestion of Error, filed in the Supreme 
Court of the State of Mississippi (E. 138), petitioners spe­
cially set up and claimed rights and privileges accorded to 
them under the Constitution of the United States, said 
rights and privileges being in relation to due process of 
law, within the meaning of the Fourteenth Amendment to 
the Federal Constitution.

Petitioners asserted, in said Suggestion of Error, as 
they now represent to this' Honorable Court, that their Con­
stitutional right to due process of law, in their trial for 
murder, by the Circuit Court of Kemper County, Miss., 
and on appeal to the Supreme Court of Mississippi, had 
been violated by the State of Mississippi in the following 
particulars:

(a) By the knowing use, on the part of the State, as con­
fessions, of statements illegally obtained from petitioners, 
through force and violence, by officers of the State. (E. 139, 
140.)



13

(b) By the denial to petitioners, in reality, of represen­
tation by counsel. (R. 140.)

(c) By the judgment of the trial court, and its affirm­
ance by the Supreme Court of Mississippi, in that the trial 
court had lost jurisdiction to enter said judgment, because 
of the denial of due process of law to petitioners, in the 
trial of said cause. (R. 140.)

4. In its Opinion on Suggestion of Error (R. 166), dis­
sented to by Justices Griffith and Anderson (R. 173), the 
Supreme Court of the State of Mississippi considered the 
Federal questions therein raised and overruled same, there­
by establishing and confirming the jurisdiction of this Hon­
orable Court to review the proceedings herein, and the 
judgment and opinions of the Supreme Court of Missis­
sippi, insofar as same relate to a denial of due process of 
law, to petitioners, within the meaning of the Fourteenth 
Amendment to the Federal Constitution.

The following authorities are in point as to the jurisdic­
tion of this Honorable Court to review the Federal ques­
tions raised herein:

Great Northern Ry. Company v. Sunburst Oil and Re­
fining Company, 53 Sup. Ct. Rep. 145, 287 U. S. 358, 
77 L. Ed. 360;

Nickey v. State of Mississippi, 54 Sup. Ct. Rep, 743, 78 
L. Ed. 1323, 292 U. S. 393;

Consolidated Turnpike Co. v. Norfolk, etc., R. Co., 228 
H. S. 326, 33 Sup. Ct. Rep. 510, 57 L. Ed. 857;

Atchison, etc. R. Co. v. Harold, 241 U. S. 371, 36 Sup. 
Ct. Rep. 665, 60 L. Ed. 1050;

San Jose Land, etc. Co. v. San Jose Ranch Co., 23 Sup. 
Ct. Rep. 487, 189 U. S. 177, 180, 47 L. Ed. 765;

Mallet v. North Carolina, 181 U. S. 589, 21 Sup. Ct. Rep. 
730, 45 L. Ed. 1015.



14

5. Further, there is no State question sufficient to sup­
port the decision of the Court, to the exclusion of the Fed­
eral question involved.

III.

Statement of the Case.

This has already been stated in the preceding petition 
under I (pp. 1-7), which is hereby adopted and made a part 
of this brief.

IV.

Specification of Errors.

1. The Supreme Court of the State of Mississippi erred 
in affirming the judgment of the trial court, and in entering 
its judgment herein, in that the State of Mississippi con­
trived the conviction of petitioners, in the trial court, by 
the knowing use, on the part of the State, as confessions, 
of statements illegally obtained from petitioners, through 
force and violence, by officers of the State; such use 
amounting to a denial of due process of law, within the 
meaning of the Fourteenth Amendment to the Constitution 
of the United States.

2. The Supreme Court of the State of Mississippi erred 
in affirming the judgment of the trial court, and in entering 
its judgment herein, in that petitioners were, in reality, de­
nied representation by counsel, in the trial court, and hence 
were denied due process of law within the meaning.of the 
Fourteenth Amendment to the Constitution of the United 
States.

3. The Supreme Court of the State of Mississippi erred 
in affirming the judgment of the trial court, and in enter­
ing its judgment herein, in that the trial court had lost juris­
diction to enter said judgment, in the trial of said cause,



15

because of the denial of due process of law to petitioners, 
within the meaning of the Fourteenth Amendment to the 
Constitution of the United States.

4. The Supreme Court of the State of Mississippi erred 
in refusing to consider Motion in Arrest of Judgment, and 
for New Trial, filed therein, and in affirming the judgment 
of the lower court, in that no opportunity was afforded 
petitioners for filing said Motion in the lower court; there­
by denying to petitioners due process of law, as provided 
by the Fourteenth Amendment to the Federal Constitution, 
in that they were denied equal protection of the law.

5. The Supreme Court of the State of Mississippi erred 
in entering its judgment herein, and in its decision of said 
cause, in that said decision and judgment are, within them­
selves, denials of due process of law, within the meaning 
of the Foui’teenth Amendment to the Federal Constitution, 
in that through them the court denies to petitioners their 
fundamenal rights.

V.

Summary of the Argument.

P oint A .

Petitioners were denied due process of law by the fraud 
of the State, through its agents.

Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97; 29 
Sup. Ct. Rep. 14;

Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543, 43 Sup. 
Ct. Rep. 265;

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674, 
54 Sup. Ct. Rep. 330;

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 Sup. 
Ct. Rep. 55;



16

Mooney v. Eolohan, ------U. S .-------, 79 L. Ed. 347;
Chicago, B. and Q. R. R. v. Chicago, 166 U. S. 226, 41 

L. Ed. 979, 17 Sup. Ct. Rep. 581;
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, 20 Sup. Ct. 

Rep. 687;
Ex parte Commonwealth of Va., 100 U. S. 339, 25 L. 

Ed. 676.
P oint B.

Petitioners were denied due process of law, through 
denial of counsel.

Powell v. Alabama, 287 TJ. S. 45, 77 L. Ed. 158, 53 Sup. 
Ct. Rep. 55.

P oint C.
Petitioners were denied due process of law, in that the 

trial court possessed no jurisdiction to enter judgment.
In re Nielsen, 131 U. S. 176, 33 L. Ed. 118;
In re Bonner, 151 U. S. 242, 38 L. Ed. 149, 14 Sup. Ct. 

R ep.323;
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 Sup. 

Ct. Rep. 55.
P oint D.

Petitioners were denied due process of law, in that they 
were denied equal protection of the law.

State v. Guerringer, 265 Mo. 408, 178 S. W. 65; 
Duncan v. Missouri, 152 TJ. S. 382.

P oint E.
The decision of the Supreme Court of Mississippi is, it­

self, a denial of due process of law.
Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674, 

54 Sup. Ct. Rep. 330; Twining v. New Jersey, 211U. S. 
78; Rogers v. Peck, 199 TJ. S. 425; Maxwell v. Dow, 
176 U. S. 581; Hurtado v. California, 110 U. S. 516;



17

Frank v. Mangum, 237 U. S. 309; Powell v. Alabama,
287 U. S. 45; Mooney v. Holohan,------U. S . ------- ,
79 L. Ed. 347.

VI.
ARGUMENT.

P oint A.
Petitioners were denied due process of law by the fraud 

of the State, through its agents.
This Court has long since established that one of the ab­

solute essentials of due process of law, as provided by the 
Fourteenth Amendment to the Federal Constitution, is a 
fair and impartial trial.

Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 
Sup. Ct. Rep. 14;

Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543, 43 Sup. 
Ct. Rep. 265;

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674, 
54 Sup. Ct. Rep. 330;

Mooney v. Holohan,------U. S .-------, 79 L. Ed. 347;
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 Sup. 

Ct. Rep. 55.
Further, this Court has long since decided that due proc­

ess of law is denied by a State, when prevented through 
the wrong of its officers and agents.

Mooney v. Holohan,------U. S .-------, 79 L. Ed. 347;
Chicago, B. and Q. R. R. v. Chicago, 166 U. S. 226, 41 

L. Ed. 979,17 Sup. Ct. Rep. 581;
Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, 20 Sup. Ct. 

Rep. 687;
Ex parte Commonwealth of Va., 100 U. S. 339, 25 L. Ed. 

676;
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 Sup. 

Ct. Rep. 55.



1 8

In the trial of this cause the State of Missisippi based its 
charge of murder against these petitioners upon incriminat­
ing statements, coerced from petitioners by officers of the 
State, through physical violence, and offered by the State 
as free and voluntary confessions. (R. 41-78 and 25-41.)

This action on the part of the State constituted a double 
fraud. Not only did it offer illegal evidence, in view of Sec­
tion 26 of the Constitution of the State of Mississippi; but 
by introducing these statements, obtained under duress, the 
State of Mississippi offered evidence essentially false, and 
tainted further by the criminal manner in which the state­
ments were secured.

For the convenience of the Court we again quote the per­
tinent portion of Section 26 of the State Constitution;

“ In all criminal prosecutions the accused * * *
shall not be compelled to give evidence against him­
self;’ ’

It is conceded that the repetition of said statements, on 
the day following their original extortion, was likewise 
under duress, in that the statements were repeated under 
fear of further punishment by officers of the State; and 
for this reason would be inadmissible, also, under the Con­
stitution and laws of the State of Mississippi.

Banks v. State, 47 So. 437, 93 Miss. 700;
Mackmasters v. State, 82 Miss. 459;
Whitley v. State, 78 Miss. 255;
Fisher v. State, 145 Miss. 116, 110 So. 361.

In this connection, therefore, the language of the Supreme 
Court of the United States, in the case of Mooney v. Eolo- 
han,------U. S .-------, 79 L. Ed. 347, is peculiarly applicable.

This Court, on page 349 of the opinion, as reported in 79 
L. Ed., said:

“ It [due process of law] is a requirement that cannot 
be satisfied by mere notice and hearing if a State has



19

contrived a conviction through the pretence of a trial 
which in truth is but used as a means of depriving a 
defendant of liberty through a deliberate deception of 
court and jury by the presentation of testimony known 
to be perjured. Such a contrivance by a State to pro­
cure the conviction and imprisonment of a defendant 
is as inconsistent with the rudimentary demands of 
justice as is the obtaining of a like result by intimida­
tion. And the action of prosecuting officers on behalf 
of the State, like that of administrative officers in the 
execution of the laws, may constitute state action within 
the purview of the Fourteenth Amendment.”

On the ground of fraud, there is very little to choose be­
tween the act of the State, referred to in Mooney v. Holohan, 
supra, and the act of the State in the present case. The 
State of Mississippi, through its use, as confessions, of 
statements literally whipped, word for word, from petition­
ers, presented evidence as false as perjury. The fraud in 
the two cases, as to the introduction of false testimony, is 
essentially the same.

In the instant case, however, the fraud of the State is 
aggravated by the infamous mistreatment, on the part of 
the State, which resulted in the alleged confessions.

We earnestly contend, therefore, that the State of Mis­
sissippi, by its use of illegal, false and highly prejudicial 
evidence, so completely prevented a fair and impartial trial 
of petitioners, as to vitiate the whole proceedings against 
them, on the ground of denial of due process of law, as pro­
vided by the Fourteenth Amendment to the Federal Con­
stitution.

P oint B.
Petitioners were denied due process of law, through the 

denial of counsel.
In the recent case of Powell v. Alabama, 287 U. S. 45, 77 

L. Ed. 158, 53 Sup. Ct. Rep. 55, this Court, in discussing the



20

requirement of the Fourteenth Amendment to the Federal 
Constitution, as to due process of law, ruled very positively 
that the right to a hearing, as a basic element of due process 
of law, includes the right to the aid of counsel.

This Court further held, on page 71 of its opinion, (287 
U. S.) :

“  * * * In a capital case, where the defendant is un­
able to employ counsel, and is incapable adequately of 
making his own defense because of ignorance, feeble­
mindedness, illiteracy, or the like, it is the duty of the 
court, whether requested or not, to assign counsel for 
him as a necessary requisite of due process of law; and 
that duty is not discharged by an assignment at such 
a time or under such circumstances as to preclude the 
giving of effective aid in the preparation and trial of 
the case. To hold otherwise would be to ignore the 
fundamental postulate, already adverted to, ‘ that there 
are certain immutable principles of justice which inhere 
in the very idea of free government which no member 
of the Union may disregard.’ Holden v. Hardy, 169 
U. S. 366, 42 L. Ed. 780, 18 S. Ct. 383, supra,”

In the instant case, the record discloses the following 
facts, in connection with the appointment of counsel, and 
the necessity for same:

That petitioners are ignorant and pauper negroes. (R. 
126, 39, 51, 112.)

On April 4, 1934, they were indicted for murder. (R. 1.) 
On April 5, 1934, they were put to trial for their lives. 
(R. 3.)

On a date not directly disclosed by the record, but neces­
sarily in the interval of time between the indictment and 
trial, petitioners were arraigned and counsel appointed by 
the court to defend them. (R. 2, 54.)

Under the rule as laid down by this Court, and in view of 
the fact that these negroes are ignorant paupers, the court 
was under the positive duty of appointing them counsel at



21

a time, and under circumstances, which would, in fact, allow 
the defense adequate preparation.

This the trial court did not do. It is apparent that coun­
sel for petitioners had no real opportunity to prepare them­
selves for the trial of this cause. The element of time alone 
precluded them,

Further than this, in their Motion for New Trial, (E. 141), 
and especially in the affidavit, in support thereof, by Mr. 
John A. Clark, (R. 146) one of counsel appointed to defend 
these petitioners, it is established that the short and inade­
quate conference which petitioners had with their counsel, 
was constantly interrupted by messages from the court to 
get through as rapidly as possible. That Cliff Dial, the 
deputy who had whipped petitioners, stood at the door of 
the conference room, and so intimidated petitioners by his 
presence that they whispered to counsel that they were 
afraid to discuss the case. That no private conference, be­
tween petitioners and counsel, was ever allowed as a deputy 
sheriff was constantly in the room. That counsel had no 
opportunity to confer with the defense witnesses, and no 
opportunity to learn anything about the case save from a 
smattering, whispered conversation with petitioners, under 
strained circumstances.

In view of these facts, we respectfully submit that peti­
tioners were denied due process of law, within the meaning 
of the Fourteenth Amendment to the Federal Constitution, 
in that the trial court failed, in reality, to provide them 
counsel.

P o i n t  C.
Petitioners were denied due process of law, in that the 

trial court possessed no jurisdiction to! enter judgment.
In the case of Poivell v. Alabama, supra, on page 68 of 

the opinion, 287 U. S., the Supreme Court of the United 
States said:



22

“ It never has been doubted by this court, or any 
other so far as we know, that notice and hearing are 
preliminary steps essential to the passing of an en­
forceable judgment, and that they, together with a le­
gally competent tribunal having jurisdiction of the 
case, constitute basic elements of the constitutional re­
quirement of due process of law.”  (Italics ours.)

In the two preceding points, we have demonstrated to 
this Court that one of the preliminary steps, essential 
to an enforceable judgment is lacking in this cause, in that 
by the fraud of the State, and the denial of counsel, petition­
ers have not been accorded a hearing, or, as the word is 
often interpreted, a fair and impartial trial.

It is evident then, with this preliminary step lacking, that 
the trial court was without authority to enter a binding 
judgment against these petitioners, and its attempt to do 
so, was a denial of due process of law.

Quoting again from Powell v. Alabama, supra, the Court, 
on page 68 of the opinion (287 U. S.), said:

“ Mr. Justice Field, in an earlier case, Galpin v. Page, 
18 Wall. 350, 368, 21 L. Ed. 959, 963, 964, said that the 
rule that no one shall be personally bound until he has 
had his day in court was as old as the law, and it meant 
that he must be cited to appear and afforded an oppor­
tunity to be heard. ‘ Judgment without such citation 
and opportunity wants all the attributes of a judicial 
determination; it is judicial usurpation and oppres­
sion, and never can be upheld where justice is justly 
administered.’ ”

In the case of Nielsen, 131 U. S. 176, 33 L. Ed. 118, the 
Supreme Court of the United States again expressed the 
rule that the denial of a Constitutional right destroys the 
validity of the hearing, and the judgment of the court there­
on. The Court, on page 183 of the opinion (131U. S.), said:



23

“ In other words, a constitutional immunity of the 
defendant was violated by the second trial and judg­
ment. It is difficult to see why a conviction and pun­
ishment under an unconstitutional law is more viola­
tive of a person’s constitutional rights, than an uncon­
stitutional conviction and punishment under a valid 
law. In the first case, it is true, the court has no au­
thority to take cognizance of the case; but, in the other, 
it has no authority to render judgment against the 
defendant.”

See also In re Bonner, 151 U. S. 242, 38 L. Ed. 149, 14 
Sup. Ct. Rep. 323.

Under the above authorities, therefore, we submit that 
petitioners’ rights to due process of law, under the Four­
teenth Amendment to the Federal Constitution, were denied 
by the entry of judgment by the trial court, and its affirm­
ance by the appellate court.

P o i n t  D .

Petitioners were denied due process of law, in that they 
were denied equal protection of the law.

Petitioners filed a Motion for New Trial and in Arrest 
of Judgment, (R. 141) in the Supreme Court of Mississippi, 
on the theory that no opportunity had been afforded for 
filing same in the lower court. The motion and affidavits in 
support thereof, revealed that petitioners were sentenced 
one night, after which they were carried to a jail in an ad­
joining county; and that early the next morning the court 
adjourned.

Under Mississippi practice, every person is given the 
right to make motion for a new trial; but according to the 
circumstances in this case, petitioners were deprived of 
this right. Had the opportunity been afforded, and had 
counsel appointed by the court taken advantage thereof,



24

the technicality on which the Supreme Court relied in 
affirming the case, on original appeal, would probably have
been swept away.

While the right of making motion for a new trial is not 
essential to due process of law, yet if this privilege be 
allowed to some persons and not to all persons similarly 
situated, such deprivation of the right to make the motion 
is equivalent to denial of due process of law, for due proc­
ess of law and the equal protection of the laws are secured 
only when—

“  * * * the laws operate on all alike and do not sub­
ject the individual to an arbitrary exercise of the pow­
ers of the government. ’ ’ 152 TJ. S. 377, at page 382.

For the errors of the trial court in failing to control its 
sittings and adjournments so as to afford petitioners a like 
opportunity with others similarly situated, to make a mo­
tion for a new trial, we think reversal must follow:

“ Surely it is better that justice travel with a 
leaden foot, rather than that she should walk rough­
shod over the constitutional rights of citizens, to be 
equal one with another before the law.”

State v. Guerringer, 265 Mo. 408, 178 S. W. 65, 
at page 418.

P o i n t  E .

The decision of the Supreme Court of Mississippi is, 
itself, a denial of due process of law.

In the case of Snyder v. Massachusetts, 291 U. S. 97, 78 
L. Ed. 674, 54 Sup. Ct. Rep. 330, the Supreme Court of the 
United States defined the limits within which a state may 
regulate the procedure of its courts, in consonance with due 
process of law, as required by the Fourteenth Amendment 
to the Federal Constitution.



25

On page 105 of its opinion (291 U. 8.), the Court said:
“ The Commonwealth of Massachusetts is free to 

regulate the procedure of its courts in accordance with 
its own conception of policy and fairness unless in so 
doing it offends some principle of justice so rooted in 
the traditions and conscience of our people as to be 
ranked as fundamental. Twining v. New Jersey, 211 
U. S. 78, 106, 111, 112; Rogers v. Peck, 199 U. S. 425, 
434; Maxwell v. Dow, 176 U. S. 581, 604; Hurtado v. 
California, 110 U. S. 516; Frank v. Mangum, 237 U. S. 
309, 326; Powell v. Alabama, 287 U. S. 45, 67.”

In the instant case, the Supreme Court of Mississippi 
attempts to defeat the right of petitioners, defendants in 
the trial court, to a fair and impartial trial, and this by a 
mere rule of procedure.

As we have previously stated, the only evidence of any 
consequence, introduced by the State against these peti­
tioners was the so-called confessions, (See opinions, E. 135, 
175-176) illegally obtained by the State, and fraudulently 
introduced (R. 41-78), and in denial of rights under the 
Constitution of the State of Mississippi.

In its Opinion on Suggestion of Error, in this cause 
(R. 166), the Supreme Court of Mississippi admits the 
illegality of the so-called confessions, under the Constitu­
tion of the State of Mississippi, in that they were forced 
self-incrimination (R. 168); the court expresses its 
horror of the manner in which the statements were ex­
torted (R. 173), but in spite of these facts the court rules 
that because no motion to exclude was made by petitioners 
after it became apparent that said statements had been 
extorted by violence, that petitioners waived all right to 
charge the admission of said evidence as error, both under 
the Constitution of the State of Mississippi, and the due 
process clause of the Fourteenth Amendment to the Fed­
eral Constitution. (R. 168-169.)



26

In view of the settled law that waiver is the deliberate 
abandonment of a known right; in view of the further fact 
that petitioners objected to the so-called confessions, when 
they were first introduced, on the ground that they were 
not free and voluntary (R. 35, 41); that the whole defense 
was predicated upon a denial of the truth of said state­
ments, and an exposition of the shameful and hideous man­
ner in which they were extorted, it is inconceivable to us 
that the doctrine of waiver is here correctly applied.

Further than this, such waiver, if attempted, would be 
void as against public policy. Under the law petitioners 
could not waive their objection to the use by the state of 
deliberate fraud. Coppell v. Hall, 7 Wall. 542, 19 U. S. (L. 
Ed.) 244; Motor Contract Co. v. Van Der Volgen, 162 Wash. 
449, 298 Pac. 705, 79 A. L. R. 39.

And certainly they could not waive their objection to a 
fraud which, on their trial, denied to them fundamental 
rights, and thus secured their conviction and sentence of 
death.

On this point the Supreme Court of the United States, in 
Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262, at page 579 of the 
opinion, 110 U. S., used the following language:

“ The natural life, says Blackstone ‘ Cannot legally 
be disposed of or destroyed by any individual, neither 
by the person himself nor by any other of his fellow 
creatures, merely upon their own authority.’ 1 Bl. 
Com. 133. The public has an interest in his life and 
liberty. Neither can be lawfully taken except in the 
mode prescribed by law. That which the law makes 
essential in proceedings involving the deprivation of 
life or liberty cannot be dispensed with or affected by 
the consent of the accused; much less by his mere fail­
ure, when on trial and in custody to object to unautho­
rized methods.”



27

But sweeping all argument as to waiver aside, the State 
of Mississippi, in its destruction of petitioners’ fundamen­
tal rights, likewise destroyed the validity of their trial. 
Mooney v. Holohan, supra. Because of the fraud of the 
State the binding effect of the whole proceeding against 
these petitioners was totally vitiated and destroyed; and 
under these circumstances the waiver of petitioners, if it 
can properly be said that there was one, was of no more 
effect than the illegal and void proceedings which occurred 
prior thereto.

We submit, therefore, that it is apparent that any rule 
of procedure adopted by the Supreme Court of Mississippi, 
which serves as a device by which the court may ignore the 
denial in the lower court of those fundamentals essential 
to due process of law, is so arbitrary and unjustifiable a 
denial of essential justice, as to be within itself a denial of 
due process of law. And especially does this seem true in 
that the error in procedure was committed by counsel ap­
pointed by the court at a time, and under circumstances, 
which made adequate representation impossible. Klatsky 
v. Hatch, 157 N. Y. S. 878.

VII.

Conclusion.

In conclusion petitioners submit that under the facts, and 
the law, as hereinbefore set out, they have been deprived 
of their rights to due process of law, within the meaning of 
the Fourteenth Amendment to the Federal Constitution, on 
their trial, in the Circuit Court of Kemper County, Miss., 
and on their appeal to the Supreme Court of the State of 
Mississippi.

Petitioners, therefore, appeal to this Honorable Court 
for the protection of their rights, as citizens of the United



28

States, under the Constitution of the United States, by the 
issuance from this court of writ of certiorari, addressed 
to the Supreme Court of Mississippi, in order that this 
court may consider this cause on the merits, and that, there­
upon, final justice may be done.

Bespectfully submitted,
J. Morgan Stevens,
Earl Brewer,
W illiam H. Hewitt, 
Counsel for Petitioners.

(6656-C)







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|  SEP 16  1935 1
1 kLMUHt C’AOfiSY I
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1 _ ...............

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1935.

No. 301

ED BROWN, HENRY SHIELDS and  
YANK ELLINGTON,

Petitioners,
versus

THE STATE OF MISSISSIPPI.

BRIEF OF RESPONDENT OPPOSING PETITION FOR 
WRIT OF CERTIORARI.

G r e e k  L. R i c e ,

Attorney General of Mississippi, 
W i l l i a m  D o w  C o n n , Jr., 

Assistant Attorney General of Mississippi,
Counsel for Respondent.



.

IBS

■■ ' f? -  ■■■

' :- 'B -1
<; -s-'-y ,_- _ jl i l i M i i l l i i B S

;



Subject I ndex.
Page

Preliminary statement ............................................................................  4
Statute relied on by petitioners .............................................................  2
Nature of questions raised by petition..................................................  2
The confessions .................................................................................. 3
Essentials entitling to review under statute .......................................  4
Matters aliunde the record .......................................................... g
Rules of procedure in Mississippi ........................................................ g
Alleged denial of counsel ..................................................................... 1 3
Alleged fraud of State agents ...............................................................
Conclusion..........................................................................

T able op Cases Cited.

Akroyd v. State, 107 Miss. 51 ..................................................  g
Allen v. Georgia, 166 U. S. 1 3 8 .........................................................  ' g
American Railway Express Co. v. Kentucky, 273 U. S. 269 ............... 6
Baldwin v. Kansas, 129 TJ. S. 52 ..................................................  ' 4  14
Barrington v. Missouri, 205 U. S. 483 .........................................  ’ ’ g
Barron v. Baltimore, 7 Pet. 243 ......................................... g
Boatwright v. State, 143 Miss. 676 .................................................. ’ ' ’ 10
Bonner v. Gorman, 213 U. S. 8 6  ..................................................  ’ g
Boutwell v. State, 165 Miss. 16 .................................................... 1 0
Brooks v. Missouri, 124 U. S. 394 .............................................. " ' "  4  1 4
Brown v. Massachusetts, 144 TJ. S. 573 ........................................... 4 ’ 1 4
Brown v. New Jersey, 175 TJ. S. 1 7 2 .................................................. ' 5
Bufkin v. State, 134 Miss. 116 ...................................................."  "  ’ ”  0
Caldwell v. Texas, 137 TJ. S. 692 ................................... .. 4 1 4
Carraway v. State, 167 Miss. 390 .............................................. ’ g
Carter v. State, 147 Miss. 171 ....................................................”  ’ ’ ' g
Central Land Co. v. Laidley, 159 TJ. S. 103 ......................................... 6
City of Lumberton v. Frederick, 164 Miss. 456 ..................................’ n
City of Pascagoula v. Delmas, 157 Miss. 6 1 9 ...............................  9
Conwill v. State, 147 Miss. 1 1 8 ...........................................1 0
Corrigan v. Buckley, 271 U. S. 323 ..............................4 6
Dorsey v. State, 141 Miss. 600 ............................................. 11
Duckworth v. Town of Taylorsville, 142 Miss. 440 ............................ 1 0
Dugan v. State, 151 Miss. 781 .............................................. 10
Durham v. State, 158 Miss. 833 ............................................. . . . . . . . 11
Ellis v. State, 65 Miss. 44 ........................................................... 11,12
Ensign v. Pennsylvania, 227 U. S. 592 .................................................. ’ g
Fairley v. State, 152 Miss. 656 .......................................... ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ 9
Felts v. Murphy, 201 TJ. S. 123 ................................................................. g
Fletcher v. State, 159 Miss. 41 .................................................. ’ . ’ ’ ’ ’ 1 2

—6847-C

INDEX.



11 INDEX
Page

Frank v. Mangum, 237 U. S. 309 .......................................................... 5
Garland v. Washington, 232 U. S. 642 ................................................. 5
Grady y. State, 144 Miss. 778 .................................................................  10
Howard v. Town of Newton, 108 Miss. 548 .........................................  10
Hurtado v. California, 110 IT. S. 516 ..................................................  6
Jackson v. State, 163 Miss. 235 .............................................................. 9,12
Jacobi v. Alabama, 187 U. S. 133 ........................................................  4,14
Jones y. Buffalo Creek Coal & Coke Co., 245 U. S. 328 ..................... 6
Jordan v. Massachusetts, 225 IT. S. 167 ............................................... 5
Lee v. State, 137 Miss. 329 ................................................................. 11,12
Lee v. State, 160 Miss. 618 .................................................................  9
Leeper v. Texas, 139 IT. S. 462 ...............................................................  4
Lipscomb v. State, 75 Miss. 582 .............................................................. 11
Loftin v. State, 150 Miss. 228 ........................ ....................................... 12
Los Angeles Milling Co. v. Los Angeles, 217 -U. S. 217 ....................  5
Marley v. State, 109 Miss. 7 1 7 ...............................................................  10
Maxwell v. Dow, 176 U. S. 581 .............................................................. 6
Miller v. Texas, 153 IT. S. 535 ...............................................................  4,14
Mooney v. Holohan, 79 L. Ed. 79 ..........................................................  14
Mutual Life Insurance Co. v. McGrew, 188 U. S. 291 ..................... 14
Ong Chang Wing v. United States, 218 U. S. 272 ................................  6
Perkins v. State, 160 Miss. 720 .............................................................  12
Peters v. State, 158 Miss. 530 .................................................................  10
Pickle v. State, 137 Miss. 112 ...................................................................  11
Pittman y. State, 107 Miss. 154 .............................................................. 11
Pittman v. State, 147 Miss. 593 ............................................................ 6
Powell y. Alabama, 287 U. S. 45 .............................................................  6,13
Randolph y. State, 152 Miss. 48 ............................................................ 12
Reed v. State, 171 Miss. 6 5 .......................................................................  11
Rogers v. Peck, 199 IT. S. 425 ...............................................................  5
Salmon v. State, 151 Miss. 539 .............................................................. 10
Simmons v. State, 61 Miss. 243 ............................................................ 11
Smith v. State, 165 Miss. 462 ................. ..............................................  11
Snyder y. Massachusetts, 291 U. S. 97 ................................: ..............  6
Spies y. Illinois, 123 U. S. 131 .............................................................. 4, 5,14
State v. Joyner, 148 Miss. 560 ...............................................................  6
Sugarman v. United States, 249 U. S. 1 8 2 ....... ■................................... 4
Taylor v. State, 148 Miss. 621 .................................................................  10
Twining y. New Jersey, 211 -U. S. 7 8 ......................................................  5
Tyler v. State, 159 Miss. 223 ...............................................................  11
Waldrup v. State, 150 Miss. 302 ............................................................ 11
Weatherford v. State, 164 Miss. 8 8 8  ......................................................  12
Whit v. State, 85 Miss. 208 ...................................................................  9
Whittaker v. State, 169 Miss, 5 1 7 ..........................................................  11
Zucht v. King, 260 U. S. 1 7 4 ...................................................................  4

M ississippi Constitution.

Section 146 8



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1935.

No. 301

ED BROWN, HENRY SHIELDS AND 

YANK ELLINGTON,

versus
Petitioners,

THE STATE OF MISSISSIPPI.

I.

Preliminary Statement.

Petitioners, Ed Brown, Henry Shields and Yank Elling­
ton, were tried and convicted in the Circuit Court of 
Kemper County, Mississippi, on an indictment charging 
them with murder, and sentenced to he hanged by their 
necks until they, and each of them, were dead. They ap­
pealed to the Supreme Court of the State of Mississippi, 
where their conviction was affirmed, the decision of the 
Mississippi Supreme Court being reported in 158 So. 339, 
but not yet officially reported (R. 127, et seq.). Thereafter, 
petitioners tiled a Suggestion of Error to the decision of 
the court (R. 138), and the court overruled that suggestion, 
its decision in this respect being reported in 161 So. 465,



2

but not yet officially reported (R. 166, et seq.). The peti­
tioners have applied for writ of certiorari to bring before 
this Court for review the deciison of the Mississippi Su­
preme Court in response to the suggestion of error.

II.

Statute Relied on by Petitioners.

Petitioners base their right to a writ of certiorari upon 
the provisions of Section 237 of the Judicial Code, as 
amended by Act of February 13, 1925; 43 Statutes at 
Large 937, Section 344 U. S. C. A., Title 28, particularly 
that part of same which provides that it shall be compe­
tent for this Court, by certiorari, to require that there be 
certified to it for review and determination, any cause 
wherein a final judgment has been rendered or passed by 
the highest court of a state,

“ where any title, right, privilege, or immunity is 
specially set up or claimed by either party under the 
Constitution, or any treaty or statute of, or commis­
sion held, or authority exercised under, the United 
States;”

III.

Nature of Questions Raised by Petition.

In the main, petitioners rely upon two major proposi­
tions: (a) that the use of confessions by the state against 
petitioners at the time of their trial were extorted, and 
such use amounted to a deprivation of due process of law; 
and (b) that they were denied, in reality, representation 
by counsel to protect their interests at the trial. All other 
propositions advanced by petitioners are corollaries of the 
two foregoing main ones.



3

A. The Confessions.

At the time of the trial the state offered certain con­
fessions alleged to have been made by petitioners, ac­
knowledging gnilt of the crime charged against them. 
When they were offered in evidence, the court required 
the jury to retire while it determined the competency of 
these confessions (R. 21). At this preliminary in­
quiry into the competency and admissibility of these 
confessions, the testimony showed that they were freely 
and voluntarily made (R. 21, et seq.). The petitioners, 
at this preliminary inquiry, presented no testimony to 
show that the confessions were otherwise. Thereupon, the 
trial judge held the confessions competent and admissible. 
The jury was returned to the box, and the confessions were 
related to it (R. 25). After the state had rested its 
case, the petitioners (defendants in the trial court), took 
the witness stand and testified in such a way as to make 
the competency of these confessions questionable. But, 
after their testimony was in, they thereafter made no 
motion to exclude, or resorted to any form of procedure 
calculated to require the trial judge to again pass upon the 
competency of these confessions.

Upon appeal to the Mississippi Supreme Court, the judg­
ment of the trial court was affirmed, the court, as will be 
hereinafter pointed out, following established rules of pro­
cedure in affirming it (R. 127, et seq.).

It will therefore be seen that petitioners here base their 
right to a review under the statute above referred to upon 
the ground that the trial court erred in admitting evidence 
against them, and that the Supreme Court erred in uphold­
ing this ruling, so far as the confessions are concerned.



4

Decisions Showing what Necessary to be Done to Entitle 
Review Under Statute.

In order to give this Court jurisdiction under the statute 
relied on by petitioners, it must affirmatively appear that 
some title, right, privilege or immunity, under the Consti­
tution of the United States, was specially set up or claimed 
in the court below. In the case sought to be reviewed here, 
no such claim was made in the trial court, nor in the Su­
preme Court of the State of Mississippi when the case 
was originally decided, but only on “ Suggestion of Error,”  
a suggestion filed by counsel that the court erred in its 
decision, itself in the nature of a re-argument after the 
court had decided the case on appeal. Injection of a “ fed­
eral question”  into the case came as an afterthought of 
counsel, and should be treated as such.

Spies v. Illinois, 123 U. S. 131, 181;
jBaldwin v. Kansas, 129 U. S. 52;
Miller v. Texas, 153 U. S. 535, 538;
Brooks v. Missouri, 124 U. S. 394;
Brown v. Massachusetts, 144 U. S. 573;
Jacobi v. Alabama, 187 U. S. 133;
Caldwell v. Texas, 137 U. S. 692, 698;
Leeper v. Texas, 139 U. S. 462, 467.

The mere assertion that a federal question has been 
raised does not give this Court jurisdiction. The record 
must present such a question substantial in character and 
properly raised below.

Sugarmcm v. United States, 249 U. S. 182;
Zucht v. King, 260 U. S. 174;
Corrigan v. Buckley, 271 U. S. 323, 329.



0

This Court has held that a party is not entitled to a re­
view here upon the ground that a state court has erred in 
admitting confessions or other evidence against them.

Barrington v. Missouri, 205 U. S. 483, 485, 486;
Ensign v. Pennsylvania, 227 U. S. 592;
Los Angeles Milling Company v. Los Angeles, 217 U. S. 

217, 226.

The Federal Constitution does not guarantee immunity 
from self-incrimination, so far as the state courts are con­
cerned.

Ensign v. Pennsylvania, 227 U. S. 592, 597]
Barron v. Baltimore, 7 Pet. 243 ;
Spies v. Illinois, 123 U. S. 131, 166;
Brown v. New Jersey, 175 IT. S. 172;
Barrington v. Missouri, 205 IT. 8. 483;
Twining v. New Jersey, 211 IT. 8. 78, 93.

The State of Mississippi is free to regulate its own meth­
ods of procedure, as long as it appears that the accused 
has had sufficient notice of the accusation and an adequate 
opportunity to defend himself in the prosecution, and the 
procedure adopted by the State of Mississippi does not run 
foul of the Fourteenth Amendment because another method 
may seem to be fairer and wiser or to give a surer prom­
ise of protection to the prisoner at the bar.

Jordan v. Massachusetts, 225 IT. S. 167, 174, 32 Sup. Ct. 
Rep. 651, 56 L. Ed. 1038;

Twining v. New Jersey, 211 IT. S. 78, 106, 111, 112;
Allen v. Georgia, 166 U. S. 138, 140;
Felts v. Murphy, 201 U. S. 123;
Rogers v. Peck, 199 U. S. 425, 434, 26 Sup. Ct. Rep. 87, 

50 L. Ed. 256;
Frank v. Mangum, 237 IT. S. 309;
Garland v. Washington, 232 IT. S. 642, 645, 34 Sup. Ct. 

Rep. 456, 58 L. Ed. 772;



6

Ong Chang Wing v. United States, 218 U. S. 272, 279,
280, 31 Sup. Ct. Eep. 15, 54 L. Ed. 1040;

Snyder v. Massachusetts, 291 U. S. 97, 105, 54 Sup. Ct.
Rep. 330, 90 A. L. R. 575, 78 L. Ed. 674;

Maxwell v. Dow, 176 IT. S. 581, 604;
Hurtado v. California, 110 U. S. 516;
Powell v. Alabama, 287 U. S. 45, 67.

If the confessions had been erroneously admitted in evi­
dence, there would have been no denial of due process of 
law.

Jones v. Buffalo Creek Coal & Coke Co., 245 TJ. S. 328;
Central Land Co. v. Laidley, 159 U. S. 103;
Bonner v. Gorman, 213 IT. S. 86;
Corrigan v. Buckley, 271 IT. S. 323;
American Bailway Express Co. v. Kentucky, 273 U. S.

269.
Petitioners Rely on Matters Aliunde the Record.

Petitioners rely principally upon the matters and things 
set up in the pleading which they captioned: “ Motion in 
Arrest of Judgment and for New Trial”  (R. 141, et 
seq.), which, together with the ex parte affidavits accom­
panying it, was filed in the Supreme Court of Mississippi, 
after the decision of that court on the merits of the case, 
and while a “ Suggestion of Error”  was pending there. 
These matters and things are not properly before this 
Court, and were not properly before the Mississippi Su­
preme Court, as pointed out in its decision (R. 172).

A motion in arrest of judgment will not lie in the Su­
preme Court of the State of Mississippi. This was pointed 
out by the court in its decision of the case at bar on sugges­
tion of error (R. 172). As said in State v. Joyner, 148 
Miss. 560, 114 So. 340:

“ A motion in arrest of judgment is confined to the
record made in the trial. Its purpose is to search the



record for errors made, not to make another and a dif­
ferent record. The matter complained of in the motion 
must be ‘ intrinsic, appearing on the face of the rec­
ord, which would render the judgment, if given, erro­
neous or reversible.’ 34 C. J., Sec. 154, page 31.”

The ex parte affidavits of the three petitioners, as well 
as that of their counsel, being a part of this motion in ar­
rest of judgment, could not be considered by the Mississippi 
Supreme Court, and consequently, under the decisions of 
this Court, hereinafter referred to, this Court cannot con­
sider any of the allegations and charges of the motion and 
the exhibits thereto.

As to the motion for new trial which was made a part of 
the motion in arrest of judgment, counsel says, (Brief, 
page 23) that this was done “ on the theory that no oppor­
tunity had been afforded for filing same in the lower court” . 
That may have been counsel’s reason for doing so, but, un­
der the law of Mississippi, the trial court was the proper 
place for such procedure.

In Pittman v. State, 147 Miss. 593, 113 So. 348, the Mis­
sissippi Court held, with reference to the action of a trial 
judge on a motion for new trial after the term, at which 
a judgment was entered, had expired:

“ When the term of court was finally adjourned, the 
appellant’s right to file a motion for a new trial ended, 
and any action of the trial judge in reference to such 
a motion, which was filed after the adjournment of the 
term, was of no effect, and is not properly a part of 
this record.”

The court further said, in this same case:
‘ ‘ The verdict in this case was returned into court in 

the presence of able associate counsel for the appel­
lant, and the record does not show that counsel re­
quested any delay in order to enable them to present 
a motion for a new trial or in any way indicated to the



8

court that they desired to present any such motion, and 
this being true, the appellant cannot now complain that 
the court adjourned the term when it had completed all 
business before it.”

Along the same line is the case of Carter v. State, 147 
Miss. 171, 113 So. 177, where the record did not show that 
any oral proof was offered to substantiate any of the 
grounds set up in the motion for new trial.

In Carraway v. State, 167 Miss. 390, 148 So. 340, the Mis­
sissippi Supreme Court held, in substance, that a motion 
for a new trial, will not lie after the term, at which a judg­
ment was rendered, has expired. The lone exception to this 
rule is in the case of fraud, actually perpetrated in secur­
ing the judgment itself.

Counsel cry “ Fraud! Fraud!”  in this case. But it must 
be kept steadily in mind that if there is or was fraud in 
this case, the place for the motion was in the trial court 
where proof could be taken -pro et con, and not in the Su­
preme Court of Mississippi, a court of review only. So 
far as the Mississippi, court and this Court are concerned, 
this motion and exhibits thereto are beside the question and 
not open to consideration here. If there is “ fraud”  in 
this case, the place to remedy that situation is in the Cir­
cuit Court of Kemper County, Mississippi, the trial court, 
since a judgment procured by fraud is open to attack at 
any time. See: Carraway v. State, supra.

Rules of Procedure in Mississippi.
That the decision of the Mississippi Supreme Court, in 

the case at bar, followed the well established rules of pro­
cedure adopted in that state, it is only necessary to refer 
to the decisions of that court.

The Supreme Court of Mississippi is one of review only. 
Section 146 of the State Constitution provides that:

“ The Supreme Court shall have such jurisdiction as 
properly belongs to a court of appeals.”



9

The Supreme Court of Mississippi can only act on the 
record as made in the trial court, and will not go outside of 
the record made at the trial in reviewing a judgment of a 
trial court.

City of Pascagoula v. Delmas, 157 Miss. 619, 128 So.
743;

Akroyd v. State, 107 Miss. 51, 64 So. 936;
BufUn v. State, 134 Miss. 116, 98 So. 455;
Lee v. State, 160 Miss. 618, 134 So. 185;
Fairley v. State, 152 Miss. 656,120 So. 747;
Whit v. State, 85 Miss. 208, 37 So. 809.

In Jackson v. State, 163 Miss. 235, 140 So. 683, the Su­
preme Court of Mississippi reviewed the authorities and 
stated the rule with reference to the necessity and scope of 
objections to evidence in a trial court, so as to enable an 
appellant to base error thereon in the Supreme Court. The 
rule was not only stated, but the reasons therefor given, 
as :

“ It is true that on objection thereto, on the specific 
ground that it was not freely and voluntarily made, a 
confession should not be admitted in evidence until 
shown to have been so made, but no such specific objec­
tion was made in the court below, and cannot be made 
in this Court for the first time.

“ Except as hereinafter stated, error in the admis­
sibility of evidence can be predicated only on an objec­
tion thereto, specifically pointing out the infirmity 
therein. * * * (citing cases).

“ This is one of the most elementary rules of appel­
late court procedure, and should not be departed from 
for three reasons: (1) Unless an objection to evidence 
specifically points out the alleged infirmity therein, the 
trial court cannot intelligently rule on its admissibil­
ity; (2) the party offering the evidence should, in all 
fairness, be apprised of the alleged infirmity therein, 
so that he may, if he can, remove it; and (3) in order



10

that the parties to the litigation may be confined in the 
Supreme Court to the questions litigated in the trial 
court, the Supreme Court being a court of appellate 
jurisdiction only.”

On precisely the same proposition, see:
Howard v. Town of Newton, 108 Miss. 548, 67 So. 49; 
Boatwright v. State, 143 Miss. 676, 109 So. 710.

Not only must the objection to evidence be specific, but 
the objector is held to the same ground of his objection as 
in the trial court. He cannot assign a new ground upon 
review.

Peters v. State, 158 Miss. 530, 130 So. 695;
Marley v. State, 109 Miss. 717, 69 So. 210;
Conwill v. State, 147 Miss. 118, 112 So. 868;
Duckworth v. Town of Taylorsville, 142 Miss. 440, 107 

So. 6661;
Boutwell v. State, 165 Miss. 16, 143 So. 479.

It was held, in Peters v. State, supra, that the statement 
of one ground of objection constituted a waiver of all 
others.

It is also a rule of practice in Mississippi that where there 
is no objection to evidence in the trial court, the Supreme 
Court has nothing to review, nor is a trial court held to 
have committed error where it has not been called upon to 
rule upon a proposition. In other words, the Mississippi 
Supreme Court will not hold a trial court in error, unless 
such a trial court has been called upon to act, and has acted 
erroneously.

Boutwell v. State, 165 Miss. 16, 143 So. 479;
Grady v. State, 144 Miss. 778, 110 So. 225;
Salmon v. State, 151 Miss. 539, 118 So. 610;
Dugcm v. State, 151 Miss. 781, 119 So. 298;
Taylor v. State, 148 Miss. 621, 114 So. 390.



11

The only exceptions to the rule just stated relate to 
jurisdictional matters, as, for instance, where the indict­
ment charges no crime whatsoever :

Pittman v. State, 107 Miss. 154, 65 So. 123;
Reed v. State, 171 Miss. 65,156 So. 650; 

or where venue was not proved:
Pickle v. State, 137 Miss. 112, 102 So. 4;
Dorsey v. State, 141 Miss. 600,106 So. 827;
Waldrup v. State, 150 Miss. 302, 116 So. 432.

Indeed, the Mississippi court has held that it must raise 
jurisdictional questions arising on the record ex mero motu.

City of Lumberton v. Frederick, 164 Miss. 456, 143 So.
488.

As to the admission of confessions in evidence, the law 
of Mississippi is that an involuntary confession, for what­
ever reason involuntary, is not admissible. The law on this 
subject is treated in petitioners’ brief and the law on it is 
conceded as set out therein on this particular point.

The competency of a confession is a matter for the trial 
court to pass upon, and the trial judge passes upon it as 
and when it is offered in evidence.

Simmons v. State, 61 Miss. 243;
Ellis v. State, 65 Miss. 44, 3 So. 188;
Lipscomb v. State, 75 Miss. 582, 23 So. 210;
Durham v. State, 158 Miss. 833, 131 So. 422;
Tyler v. State, 159 Miss. 223, 131 So. 417;
Whittaker v. State, 169 Miss. 517, 142 So. 474;
Smith v. State, 165 Miss. 462, 144 So. 233.

When a confession is offered in evidence, the party 
against whom it is sought to be used may, if he requests it, 
have the court determine its competency vel non in the 
absence of the jury.

Ellis v. State, 65 Miss. 44, 3 So. 188;
Lee v. State, 137 Miss. 329, 102 So. 296;



12

Randolph v. State, 152 Miss. 48, 118 So. 354;
Fletcher v. State, 159 Miss. 41, 131 So. 251;
Jackson v. State, 163 Miss. 235, 140 So. 683.

When a preliminary inquiry into the admissibility of a 
confession is requested and allowed by the trial court, it is 
the duty of the defendant, at that time, to show, if he can, 
the involuntary character of such alleged confession. 

Perkins v. State, 160 Miss. 720, 135 So. 357;
Weatherford v. State, 164 Miss. 888,143 So. 853;
Lee v. State, 137 Miss. 329, 102 So. 296;
Ellis v. State, 65 Miss. 44, 3 So. 188.

As pointed out by the Mississippi court in the decision 
of this case, the showing upon preliminary inquiry into the 
competency of the confessions satisfied that they were vol­
untary. There was nothing to the contrary shown by peti­
tioners or anyone else. Afterwards, when petitioners were 
testifying on the merits, they testified in such a way as to 
throw doubt upon the competency of their confessions. 
But they never, from that time on, called upon the court 
by any procedural step which would have required it to 
again rule upon the competency of those confessions. The 
Mississippi Supreme Court, in reviewing this trial, merely 
followed old, well-established rules of practice and proce­
dure, as set out hereinabove, and particularly the case of 
Loftin v. State, 150 Miss. 228, 116 So. 435, which was 
squarely in point, and affirmed the conviction, so far as the 
confessions were concerned.

Petitioners, in this proceeding, can only complain of their 
own failure to proceed along the orderly lines of procedure 
marked out by the courts of this State. As pointed out in 
the decision of the Mississippi court (R. 172):

“ The rules of procedure here applied are technical 
only in the sense that all such rules are, and what the



13

appellants (petitioners here) request is simply that 
they be excepted from the procedure heretofore uni­
formly applied to all litigants. This we cannot do. All 
litigants, of every race and color, are equal at the bar 
of this Court, and we would feel deeply humiliated if 
the contrary could be justly said.”

B. Alleged Denial of Counsel.

Except as set out in the “ Motion in Arrest of Judgment 
and for New Trial” , and the ex parte affidavits attached 
thereto, and which, as pointed out above, have no place in 
this proceeding, there is nothing to show whether counsel 
who represented petitioners at the trial were appointed by 
the court, or employed by petitioners themselves, except 
the inference noted by petitioners as being deducible from 
certain testimony shown at the bottom of page 54 of the 
record before this Court.

In the case of Powell v. Alabama, 287 U. S. 45, 77 L. 
Ed. 158, 53 Sup. Ct. Rep. 55, which is relied on exclusively 
by petitioners on this ground, it is distinctly set out by the 
court that the record disclosed the circumstances under 
which counsel was “ appointed”  by the court. From the 
record now before the Court in this case, there is nothing 
upon which to base an argument of denial of counsel unless 
we allow our imagination to run wild. The Mississippi 
court, in refusing this suggestion of error, said (Record 
court, in refusing this suggestion of error, said (R. 172) :

“ No request was made of the court to continue the 
case, to pass it to a later day, or to grant the appellants 
any further time, for the preparation of their case.

“ The attorneys who defended the appellants in the 
court below are able lawyers of extensive practice— 
veterans of many forensic conflicts; and the record 
does not disclose that they consciously failed to dis­
charge any duty they owed the appellants.”



14

Since there was nothing in the record properly before 
the Mississippi court, upon which it could review this 
alleged error, there is nothing which this Court can review. 

Spies v. Illinois, 123 U. S. 131, 181;
Baldwin v. Kansas, 129 U. S. 52;
Miller v. Texas, 153 TJ. S. 535, 538;
Brooks v. Missouri, 124 U. S. 394;
Brown v. Massachusetts, 144 U. S. 573;
Jacobi v. Alabama, 187 U. S. 133;
Caldwell v. Texas, 137 U. S'. 692, 698;
Mutual Life Insurance Co. v. McGrew, 188 U. S. 291.

C. Alleged Fraud of State Agents.

There is no analogy as between the facts of the case at 
bar and the facts of Mooney v. Holohan (TJ. S.), 79 L. Ed. 
(not yet officially reported). As aptly put by the Missis­
sippi court (E. 170) :

‘■‘■Mooney v. Holohan, L. Ed. Adv. Opinion, Yol. 79, 
p. 347, is cited and relied on by the appellants but its 
relevancy here is not apparent. There the charge was 
that Mooney was convicted on perjured evidence, 
known to be such by the prosecuting officer, who sup­
pressed evidence, unknown to Mooney, in impeachment 
thereof. No charge, either of perjury, or the suppres­
sion of evidence, is here made. On the contrary, all of 
the facts as to the confessions being coerced were 
known to the appellants when they were offered and 
were provable by their own personal testimony.”

This statement of the Mississippi court, which is sus­
tained by the record which was before it, and which is now 
before this Court, is a complete answer to petitioners’ 
claim. There is absolutely no showing of fraud, and no 
fraud was claimed in the Mississippi court until after the 
supreme court had decided the appeal on its merits. On 
suggestion of error, fraud was charged, but there is nothing



15

in the entire record, which is properly before the Court 
upon which a charge of fraud may be sustained. Under the 
decisions of this Court, above set out, since there was 
nothing before the Mississippi Supreme Court upon which 
this charge might be based, there is nothing upon which 
this Court can review this charge of fraud.

Conclusion.

With reference to the right of petitioners to have this 
Court review their conviction upon the ground that the use 
of extorted confessions against them constituted a denial 
of due process of law, the State of Mississippi submits:

(1) That petitioners are not entitled to a review by this 
Court, merely because the court may have ruled erroneously 
so far as the introduction of testimony was concerned;

(2) That mere rules of procedure are involved in this 
matter, and the State of Mississippi has the right to for­
mulate and regulate its own methods of procedure, so long 
as they operate on all alike and do not interfere with the 
petitioners’ day in court and their right to be heard—it 
not having been shown by the record that there has been 
any arbitrary exercise of any powers over petitioners, or 
that they have been treated any differently than any other- 
defendant under the same circumstances; and

(3) That no title, right, privilege or immunity, under 
the Constitution of the United States, was specially set up 
or claimed in the trial court, nor was anything of this 
nature claimed until after the Mississippi Supreme Court 
had affirmed the conviction.

From an inspection of the record petitioners have placed 
before the Court, it will be seen that petitioners’ whole 
case is irretrievably bound, top, side and bottom, upon the 
allegations of the “ Motion in Arrest of Judgment and for



16

New Trial”  and the ex parte affidavits attached to and 
forming a part thereof ■ and since, under the decisions of 
this Court, the Mississippi court could not take into con­
sideration the matters and things alleged, this Court, sitting 
in review, can do no more. Upon the record now before this 
Court there is and has been no “ Federal question”  raised 
sufficient to entitle petitioners to a review here.

For the foregoing reasons, the State of Mississippi sub­
mits that petitioners have not brought their case within 
the provisions of the statute under which they seek a re­
view, and that this Court should deny the writ prayed for 
because this Court, under the circumstances, has no juris­
diction in the premises.

Respectfully submitted,
T h e  S t a t e  o f  M i s s i s s i p p i , Respondent,

By G r e e k  L. R i c e ,

Attorney General of Mississippi, 
W i l l i a m  Dow C o n n , J r .,

Assistant Attorney General of Mississippi,
Counsel for Respondent.

(6847-C)





-¥







r ---- - - f Lra-Xw Isspi-ssw Court,
F T L S D

JAN 2 193

SM&ULLS tAMMk 0f4»]
aia&

In the Supreme Court of the 
United States

OCTOBER TERM, 1935

No. 301

ED BROWN, HENRY SHIELDS and YANK 
ELLINGTON, Petitioners,

versus

STATE OF MISSISSIPPI

STATEMENT AND BRIEF FOR PETITIONERS

J. MORGAN STEVENS, 
EARL BREWER,
WILLIAM H. HEWITT, 
Counsel for Petitioners.





IN D E X
S U B J E C T  I N D E X

Page
Statement and brief for Petitioners............................. 5
B. Reference to Opinions ........................... ................ 5
C. Statement of Jurisdiction..................... ...... .......... 6
D. Summary Statement of the Matters Involved....... 8

E. Specification of Errors .......................... .................  13
Argument .................. ................................................... 14

Point I—By the knowing use on the part of the state, 
as confessions, of statements illegally obtained 
from petitioners, through force and violence, pe­
titioners were denied due process of law..............  15

Point II—Petitioners were denied due process of 
law through denial of Counsel............... ................  23

Point III—Petitioners were denied due process of 
law in that the trial court possessed no jurisdic­
tion to enter judgment............................-............... 25

Point IY—Petitioners were denied due process of 
law in that they were denied equal protection of
the law .... ...................... ................. ... ..........-...-... -... 30

Point V—The decision of the Supreme Court of Mis­
sissippi is itself a denial of due process of law..... 33

Conclusion .... ................................................. ................  37



TABLE OF AUTHORITIES
Page

Atchison, etc. R. Co. v. Harold, 241 U. S. 371, 36 Sup.
Ct. Rep. 665, 60 L. Ed. 1050.......................,......... 7

Banks v. State, 93 Miss. 700, 47 So. 437.....................  20

Brown et al. v. State, ....... Miss........, 158 So. 343
................................ ............ .............................15, 16, 18

Chicago B. & Q. R. R. Co. v. Chicago, 166 U. S. 226,
41 L. Ed. 979, 17 Sup. Ct. Rep. 581............. ...........  22

Cofer v. State, 152 Miss. 761, 118 So. 613.................. 22

Consolidated Turnpike Co. v. Norfolk, etc. R. Co. 228 
U, S. 326, 57 L. Ed. 857, 33 Sup. Ct. Rep. 510..........  7

Coppell v. Hall, 7 Wall. 542,19 U. S. (L. Ed.) 244....... 36
Duncan v. Missouri, 152 U. S. 382............ ....................  31

Ellis v. State, 65 Miss. 44, 3 So. 188............................ -  20
Ex parte Commonwealth of Va., 100 U. S. 339, 25 L.

Ed. 676 ................................. ........... ...... -....... -.... -... 21
Fisher v. State, 145 Miss. 116, 110 So. 361.................  20
Great Northern Ry. Co. v. Sunburst Oil and Refining 

Co., 287 U. S. 358, 77 L. Ed. 360, 53 Sup. Ct. 
Rep. 145 .............................................,.................... - 7

In Re Bonner, 151 U. S. 242, 38 L. Ed. 149.................. 27

In re Nielsen, 131 U. S. 176, 33 L. Ed. 118...... ....... 26, 36
Johnson v. State, 107 Miss. 196, 65 So. 218.................  20
Klatsky v. Hatch, 157 N. Y. S. 878............................. 37

Mackmasters v. State, 82 Miss. 459, 34 So. 156..........  20



3

Page
Mallett v. North Carolina, 181 U. S. 589, 45 L. Ed. 

1015, 21 Sup. Ct. Rep. 730......................................  8

McRae v. State, 8 Okla. Cr. 483.....................................  27

Mooney v. Holohan,...U. S...... ,79 L. Ed. 347.... 20, 21, 36

Motor Contract Co. v. Van Der Volgen, 162 Wash.

449, 298 Pac. 705, 79 A. L. R, 29..........      36

Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567..............  22

Nickey v. State of Mississippi, 292 IT. S. 393, 78 L.
Ed. 1323, 54 Sup. Ct. Rep. 743..................................  7

People v. Winchester, 352 111. 237, 245, 185 N. E. 580... 25

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 
Sup. Ct. Rep. 55 ................ ........................23, 24, 25, 26

San Jose Land Co., etc. v. San Jose Ranch Co., 189 
U. S. 177, 47 L. Ed. 765,. 23 Sup. Ct. Rep. 481....... 7

Scott v. McNeal, 154 IT. S. 34, 38 L. Ed. 896.........   22

Simmons v. State, 61 Miss. 243................ ...................  19

Snyder v. Massachusetts, 291 II. S. 97, 78 L. Ed. 674,
54 Sup. Ct. Rep. 330........................... ................. ..... 33

State v. Guerringer, 265 Mo. 408, 178 S. W. 65.......32, 33

Twining v. New Jersey, 211 IT. S. 78, 53 L. Ed. 97, 29

Sup. Ct. Rep. 14 ......................................................  28

Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652...... 22



Page

Whip v. State, 143 Miss. 757, 109 So. 697.................. 20

Whitley v. State, 78 Miss. 255, 28 So. 852.................. 20

Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220....... 31

STATUTES CITED

Constitution of State of Mississippi, Section 26........  15

Constitution of the United' States, Fourteenth Amend­

ment ..................................................................6, 13, 37

Statutes at Large, 43, page 937, Sec. 344 U. S. C. A., 
Title 28 6



In the Supreme Court of the 
United States

OCTOBER TERM, 1935

No. 301

ED BROWN, HENRY SHIELDS and YANK 
ELLINGTON, Petitioners, 

versus
STATE OP MISSISSIPPI

STATEMENT AND BRIEF FOR PETITIONERS
B.

REFERENCE TO OPINIONS, SUPREME COURT OF 
THE STATE OF MISSISSIPPI

The majority opinion of....the.Supreme Court of.Mis­
sissippi, (R. 127) ....... Miss , 158 So. 339, was ren­
dered January 7, 1935.

The dissenting opinion, by Justice Anderson, of the
Supreme Court of Mississippi, (R. 135)....... Miss........,
158 So. 343, was rendered January 7, 1935.

The majority opinion of the Supreme.Court of.Mis­
sissippi, on Suggestion of Error, (R. 166) Miss ,
161 So. 465, was rendered April 29,1935.

The dissenting opinion on Suggestion of Error, de­
livered by Justice Griffith, Anderson, J., concurring
(R. 173).......Miss......... , 161 So. 470, was rendered April
29, 1935.



6

C.
STATEMENT OF JURISDICTION.

1. The date of the judgment to be reviewed is April 
29,1935. (R. 179).

2. The statutory provision which is believed to 
sustain the jurisdiction of this Court is Section 237 of 
the Judicial Code, as amended by Act of February 13, 
1925; 43 Statutes at Large 937, Section 344 U. S, C. A., 
Title 28.

3. In their Suggestion of Error, filed in the Su­
preme Court of the State of Mississippi (R. 138), petiti­
oners specially set up and claimed rights and privileges 
accorded to them under the Constitution of the United 
States, said rights and privileges being in relation to 
due process of law, within the meaning of the Fourteenth 
Amendment to the Federal Constitution.

Petitioners asserted, in said Suggestion of Error, as 
they now represent to this Honorable Court, that their 
Constitutional right to due process of law, in their trial 
for murder, by the Circuit Court of Kemper County, 
Miss., and on appeal to the Supreme Court of Mississip­
pi, had been violated by the State of Mississippi in the 
following particulars:

(a) By the knowing use, on the part of the State, as 
confessions, of statements illegally obtained from petit- 
itoners, through force and violence, by officers of the 
State. (R. 139, 140.)

(b) By the denial to petitioners, in reality, of rep­
resentation by counsel. (R. 140.)



7

(c) By the judgment of the trial court, and its af­
firmance by the Supreme Court of Mississippi, in that 
the trial court had lost jurisdiction to enter said judg­
ment, because of the denial of due process of law to pe­
titioners, in the trial of said cause. (R. 140.)

4. In its Opinion on Suggestion of Error (R. 166), 
dissented to by Justices Griffith and Anderson (R. 173), 
the Supreme Court of the State of Mississippi considered 
the Federal questions therein raised and overruled same, 
thereby establishing and confirming the jurisdiction of 
this Honorable Court to review the proceedings herein, 
and the judgment and opinions of the Supreme Court of 
Mississippi, insofar as same relate to a denial of due 
process of law, to petitioners, within the meaning of the 
Fourteenth Amendment to the Federal Constitution.

The following authorities are in point as to the juris­
diction of this Honorable Court to review the Federal 
questions raised herein:

Great Northern Ry. Company v. Sunburst Oil and 
Refining Company, 53 Sup. Ct. Rep. 145, 287 U. S. 358,
77 L. Ed. 360;

NicJcey v. State of Mississippi, 54 Sup. Ct. Rep. 743,
78 L. Ed. 1323, 292 U. S, 393;

Consolidated Turnpike Co. v. Norfolk, etc., R. Co., 
228 U. S. 326, 33 Sup. Ct. Rep. 510, 57 L. Ed. 857;

Atchison, etc. R. Co. v. Harold, 241 IT. S. 371, 36 Sup. 
Ct. Rep. 665, 60 L. Ed. 1050;

San Jose Land, etc. Co. v. San Jose Ranch Co., 23 
Sup. Ct. Rep. 487, 189 U. S. 177, 180, 47 L. Ed. 765;



8

Mallet v. North Carolina, 181 U. S. 589, 21 Sup. Ct. 
Rep. 730, 45 L. Ed. 1015.

5. Further, there is no State question sufficient to 
support the decision of the Court, to the exclusion of the 
Federal question involved.

D.
SUMMARY STATEMENT OF THE MATTERS 

INVOLVED
The question involved in this cause is whether pe­

titioners received the benefit of due process of law, with­
in the meaning of the Fourteenth Amendment to the Con­
stitution of the United States, in their trial for murder, 
in the Circuit Court of Kemper County, Miss., and on 
their appeal to the Supreme Court of the State of Mis­
sissippi, from the judgment of said court, and sentence 
of death imposed therein.

Final judgment has now been entered against these 
petitioners by the Supreme Court of the State of Missis­
sippi, the court of last resort in this state.

Petitioners, three ignorant negroes, (R. 126, 39, 51, 
112) were indicted Wednesday, April 4, 1934, (R. 1) at 
an extension of the March term of the Circuit Court of 
Kemper County, Mississippi, (R. 164) for the murder 
of a white planter, (R. 77, 66, 67) Raymond Stewart, 
whose death occurred, (R. 8,11) in said county on Friday 
of the week previous. (R. 6, 10.)

On a date not directly disclosed by the record, but, 
presumably, immediately following indictment, petition­
ers were arraigned, pled “ Not Guilty”  (R. 2) and



9

counsel was appointed by the court to defend them. (R. 
54). On the next day after indictment, April 5, 1934, peti­
tioners were put on trial for their lives. (R. 3).

On said trial the state based its charge of murder 
on alleged confessions, which it offered as freely and 
voluntarily made by petitioners, (R. 25, 35, 37, 39), while 
confined in the Meridian (Lauderdale County) jail, 
(R. 25, 34, 38) for safe-keeping. (R. 23, 70).

At the request of petitioners ’ counsel a preliminary 
examination was had of Sheriff Adcock (R. 20) the first 
witness by whom the state sought to prove the confes­
sions, to determine whether the confessions were free and 
voluntary. Said examination revealed that during the 
early part of the questioning petitioners held back, and 
refused to make a. complete statement, (R. 23), but under 
pressure began to talk (R. 23-24) and were then con­
stantly corrected by Adcock when their statements met 
with his disapproval. (R. 23-24.) The sheriff admitted 
hearing of a prior confession (R. 24) and that at this 
time one of the petitioners bore marks of physical mis­
treatment, which the negro informed him was the result 
of whippings (R. 24), but that he was not advised and 
did not inquire concerning the details. (R. 24.)

Petitioners’ objection to the introduction of the pur­
ported confessions was thereupon overruled (R. 25) and 
the testimony of Sheriff Adcock, and others who were 
with him at the time of said statements, was then ad­
mitted over repeated objections (R. 25, 35, 41), after 
which the state rested its case. (R. 41).



10

Whereupon petitioners, in their own defense, testi­
fied that the alleged confessions were false (E. 43, 59, 
66, 71) and procured by officers of the state, and others, 
by force and violence, enroute to, and in the Meridian 
jail. (E. 43, 58, 59, 71.) That they denied guilt until cruel­
ly beaten (E. 43, 59, 70, 71) and threatened with death 
(E. 47) if necessary to coerce a confession; and that 
they were threatened with further punishment if they 
changed their story. (E. 60, 61, 55, 72).

That on the night following the whippings the peti­
tioners were subjected to questioning by Sheriff Adcock 
of Kemper County and Sheriff Stevens of Lauderdale 
County, and certain other officers and persons, (E. 43, 
59, 71) and that they repeated the stories they were 
forced to make under the lash because of fear of further 
punishment. (E. 60, 61, 55, 72).

The record shows that during the trial the scars and 
wounds of petitioners were plainly visible, and that the 
attention of the court and jury was directed thereto. (E. 
43, 69, 72).

The state offered in rebuttal the testimony of a 
deputy sheriff, and certain others, who admitted that 
the negroes denied guilt until whipped. (E. 102, 106, 112, 
113, 114).

An examination of the record will disclose that the 
only evidence of consequence, against petitioners, was 
the so-called “ confessions.”  (See opinions, E. 135, 175- 
176).

After hearing the evidence, argument of counsel, 
and instructions of the court, the jury returned a verdict



11

of “ Guilty”  as to each of the petitioners; (R. 2-3) where­
upon the court entered its judgment, and sentenced pe­
titioners to be hung by the neck until dead. (R. 3).

From this judgment petitioners appealed to the Su­
preme Court of Mississippi (R. 125) assigning as the 
principal ground of error the admission of said incrimi­
nating statements, as purported confessions. (R. 127)

The Supreme Court affirmed the judgment of the 
lower court in the decision rendered by it on appeal, (R. 
127), and entered its judgment, (R. 137) resetting the 
date for execution, a dissenting opinion being delivered 
by Justice Anderson. (R. 135).

Petitioners thereupon filed in the Supreme Court 
of Mississippi their Suggestion of Error, (R. 138), said 
Suggestion asserting the Federal questions with refer­
ence to denial of due process of law, in that they were 
convicted by the fraud of the State through its agents, 
they were denied counsel, the trial court possessed no 
jurisdiction to enter judgment, and they were denied 
equal protection of the laws contrary to the Fourteenth 
Amendment to the Constitution of the United States.

As an accompaniment to the Suggestion of Error, a 
Motion in Arrest of Judgment, and For a New Trial was 
filed; (R. 141) said Motion being filed in the appellate 
court, as stated therein, under the theory that no oppor­
tunity had been afforded in the lower court for filing 
same. Said Motion was supported by affidavits of peti­
tioners (R. 149,153, 157) and counsel (R. 146) appointed 
by the lower court to represent them in the trial; said 
affidavits setting forth the manner in which the alleged



12

confessions were coerced, and the further facts that coun­
sel had no access to petitioners for sufficient time to al­
low preparation of the case, or to acquaint counsel with 
the facts.

The Suggestion of Error was overruled by the Court, 
and final judgment entered (R. 179). In its opinion on 
said Suggestion of Error, (R. 166) the court held, in 
regard to the Federal questions raised by petitioners, 
that immunity from self-incrimination is not essential 
to due process of law, within the meaning of the 14th 
Amendment to the Federal Constitution; and that failure 
to exclude confessions which were competent when ad­
mitted, after introduction of evidence tending to show 
their incompetence, in absence of request so to do, does 
not deny due process of law, within the meaning of the 
14th Amendment to the Federal Constitution.

The court further held that the record does not dis­
close that counsel appointed by the court consciously 
failed to discharge any duty they owed appellants; and 
the court declined to consider the Motion in Arrest of 
Judgment and For New Trial, on the ground that said 
Motion would not lie in the Supreme Court, same being 
a court of appellate jurisdiction only.

A  dissenting opinion was delivered by Justice Grif­
fith, concurred in by Justice Anderson. (R. 173).

In its final judgment, the Supreme Court reset the 
date of execution of petitioners for June 6,1935. (R. 179).

Pursuant to Petition for Stay of Execution, (R- 
179) the Supreme Court of Mississippi entered its order



13

(R. 180) staying the execution of petitioners for a suf­
ficient time to allow the presentation to this Honorable 
Court of Petition for Certiorari.

This Court granted petitioners’ application for 
Writ of Certiorari,------U. S .------- , October 14, 1935.

E.
SPECIFICATION OF ERRORS

1. The Supreme Court of the State of Mississippi 
erred in affirming the judgment of the trial court, and 
in entering its judgment herein, in that the State of Mis­
sissippi contrived the conviction of petitioners, in the 
trial court, by the knowing use, on the part of the State, 
as confessions, of statements illegally obtained from 
petitioners, through force and violence, by officers of 
the State; such use amounting to a denial of due pro­
cess of law, within the meaning of the Fourteenth 
Amendment to the Constitution of the United States.

2. The Supreme Court of the State of Mississippi 
erred in affirming the judgment of the trial court, and 
in entering its judgment herein, in that petitioners were, 
in reality, denied representation by counsel, in the trial 
court, and hence were denied due process of law within 
the meaning of the Fourteenth Amendment to the Con­
stitution of the United States.

3. The Supreme Court of the State of Mississippi 
erred in affirming the judgment of the trial court, and 
in entering its judgment herein, in that the trial court 
had lost jurisdiction to enter said judgment, in the trial 
of said cause, because of the denial of due process of law



14

to petitioners, within the meaning of the Fourteenth 
Amendment to the Constitution of the United States.

4. The Supreme Court of the State of Mississippi 
erred in refusing to consider Motion in Arrest of Judg­
ment, and for New Trial, filed therein, and in affirming 
the judgment of the lower court, in that no opportunity 
was afforded petitioners for filing said Motion in the 
lower court; thereby denying to petitioners due process 
of law, as provided by the Fourteenth Amendment to the 
Federal Constitution, in that they were denied equal 
protection of the law.

5. The Supreme Court of the State of Mississippi 
erred in entering its judgment herein, and in its decision 
of said cause, in that said decision and judgment are, 
within themselves, denials of due process of law, within 
the meaning of the Fourteenth Amendment to the Fed­
eral Constitution, in that through them the court denies 
to petitioners their fundamental rights.

ABGUMENT

The learned counsel for respondent had much to say 
in his brief opposing the petition for a writ of certioraii 
regarding the Motion in Arrest of Judgment and for a 
New Trial and the affidavits in support thereof filed 
herein. Especially did counsel object to the facts stated 
in the supporting affidavits contending that they were 
not properly a part of the record.

Therefore, the allegations contained in the afore­
mentioned Motion and affidavits are omitted from the



15

statement of facts and argument herein, with the excep­
tion of Point IV which treats particularly with the de­
nial of due process in regard to the said Motion.

POINT I
BY THE KNOWING USE ON THE PART OF 
THE STATE, AS CONFESSIONS, OF STATE­
MENTS ILLEGALLY OBTAINED FROM PETI­
TIONERS, THROUGH FORCE AND VIOLENCE, 
PETITIONERS WERE DENIED DUE PROCESS 
OF LAW.
For the convenience of the Court, we quote the per­

tinent portion of Section 26 of the Mississippi Constitu­
tion :

“ In all criminal prosecutions the accused***** 
shall not be compelled to give evidence against him­
self; ****’ ’

THE CHARGE OF MURDER WAS BASED ON 
AND SUPPORTED ONLY BY THE SO-CALLED 
CONFESSIONS. From a study of the record herein, it 
is readily seen that there is no evidence whatsoever to 
support a conviction, save the extorted confessions.

In this connection Justice Anderson in his dissent­
ing opinion, Brown et al vs. State, -----Miss.-------, 158 So.
343, said:

“ Leaving out the confessions, the evidence was 
wholly insufficient to sustain the conviction.”  (R. 
135).



16

And again in the same opinion Justice Anderson 
said on this point:

“ Wipe out these confessions, and the court 
would have been forced to direct a verdict of not 
guilty. The court had staring it in the face this 
incompetent testimony without which there could be 
no conviction.”  (E. 136).

Justice Griffith said in this regard in his dissenting 
opinion, Brown et al vs. State,------Miss.------ , 161 So. 470:

“ The evidence upon which the conviction was 
obtained was the so-called confessions. Without 
this evidence a peremptory instruction to find for 
the defendants would have been inescapable.”  (E. 
175-176).

THESE IS NO DOUBT BUT THAT THE SO- 
CALLED CONFESSIONS WEEE OBTAINED BY 
FOECE AND VIOLENCE. In the trial court each of 
the petitioners testified that they steadfastly denied 
guilt until severely beaten.

Ed Brown, one of the petitioners, testified as fol­
lows: (E. 43).

“ Q. You heard Mr. Adcock and the sheriff of 
Lauderdale County, Mr. Stevens, and Preacher 
Stevens testify about the confession you made in 
Meridian in the jail, saying that you participated in 
this killing; tell the jury whether or not you told the 
truth at that time.

A. No, sir I didn’t tell the truth.



17

Q. Why did you tell something that was not 
true?

A. Mr. Cliff called me out of the jail Sunday 
evening—

Q. Who did ?
A. Mr. Cliff Dial. He told me to come on out 

here, that he had heard I told that I killed Mr. Ray­
mond. I come out of the jail house and I said: “ I 
declare I didn’t kill Mr. Raymond.”  He said: “ Come 
on in here and pull your clothes off; I am going to 
get you.”  I said to the last that I didn’t kill him. 
There was two more fellows about like that there, 
and they was whipping me. They had me benind 
across chairs kind of like that. I said I didn’t kill 
him, and they said put it on him again, and they hit 
so I had to say: “ Yes, sir.”  Mr. Cliff said: “ Give 
it to me, and I will get it.”  He took it, and it had 
two buckles on the end. They stripped me naked 
and bent me over a chair, and I just had to say it ; 
I couldn’t help it.”

The testimony of Henry Shields and Yank Elling­
ton, the other two petitioners, was very similar in this 
regard (R. 59, 69-70).

Certain peace officers corroborated the statements 
made by the petitioners when they were put on the stand 
in rebuttal by the State. Mr. T. H. Nicholson, Marshal 
of the town of Scooba (R. 99) testified as follows: (R. 
102) .

“ Q. Each of these three defendants had been 
beaten before the questions were propounded?



18

A. I don’t know anything about Ellington. I 
hadn’t seen him at the time.

Q. The defendants Ed Brown and Henry 
Shields had been whipped before the statements were 
obtained ?

A. They had been whipped some, yes, sir.”
Cliff Dial, a Deputy Sheriff, testified as follows: 

(R. 113).
“ Q. Ed denied it at first, didn’t he!

A. Yes, sir.
Q. He said he wasn’t guilty?
A. Yes, sir.
Q. Shields denied it too?
A. Yes, sir, at first.
Q. What did you do to them then?
A. We kind of warmed them a little—not too 

much.
Q. They said then that they were guilty?
A. Yes, sir.”

Chief Justice Smith, in his opinion overruling the 
Suggestion of Error, Brown et al vs. State, supra, said: 
(R. 173)

“ Nothing herein said is intended to even re­
motely sanction the method by which these confes­
sions were obtained.”
Justice Griffith in his dissenting opinion, Brown, et 

al vs. State, supra, said: (R. 176)



19

“ The defendants were put on the stand, and by 
their testimony the facts and the details thereof as 
to the manner by which the confessions were extort­
ed from them were fully developed, and it is further 
disclosed by the record that the same deputy, Dial, 
under whose guiding hand and active participation 
the tortures to coerce the confessions were admin­
istered, was actively in the performance of the sup­
posed duties of a court deputy in the courthouse and 
in the presence of the prisoners during what is de­
nominated, in complimentary terms, the trial of 
these defendants. This deputy was put on the stand 
by the state in rebuttal, and admitted the whippings. 
It is interesting to note that in his testimony with 
reference to the whipping of the defendant Elling­
ton, and in response to the inquiry as to how severe­
ly he was whipped, the deputy stated, ‘ Not too much 
for a negro; not as much as I would have done if it 
were left to me.’ Two others who had participated 
in these whippings were introduced and admitted it 
—not a single witness was introduced who denied it. 
The facts are not only undisputed, they are admit­
ted—and admitted to have been done by officers of 
the state, in conjunction with other participants, and 
all this was definitely well known to everybody con­
nected with the trial, and during the trial, including 
the State’s prosecuting attorney and the trial judge 
presiding.”  (Italics ours).

These extorted statements which have been hereto­
fore referred to as confessions are condemned by the 
Constitution and laws of Mississippi. Simmons v. State,



2 0

61 Miss. 243; Ellis v. State, 65 Miss. 44, 3 So. 188; Whit­
ley v. State, 78 Miss. 255; 28 So. 852; Mackmaster v. 
State, 82 Miss. 459, 34 So. 156; Banks v. State, 93 Miss. 
700, 47 So. 437; Johnson v. State, 107 Miss. 196, 65 So. 
218; Whip v. State, 143 Miss. 757, 109 So. 697; Fisher v. 
State, 145 Miss. 116, 110 So. 361.

THIS ACTION ON THE PART OF AGENTS OF 
THE STATE IN SECURING AND USING THESE 
EXTORTED STATEMENTS WAS A DENIAL OF 
DUE PROCESS. It should be borne in mind that these 
alleged confessions were procured by men who are sup­
nosed to be peace officers and agents of the State and 
then were used by officers of the State to secure a con­
viction of petitioners.

This action on the part of the State constituted a 
double fraud. Not only did if offer illegal evidence in 
view of Section 26 of the Constitution of the State of 
Mississippi; but by introducing these statements ob­
tained under duress, the State of Mississippi offered evi­
dence essentially false and tainted further by the crimin­
al manner in which the statements were secured.

This Court has repeatedly held that due process of 
law is denied by a state when prevented through the 
wrong of its officers and agents. The following lan­
guage, in the case of Mooney v. Holohan,------U. S.-----
79 L. Ed. 347, is peculiarly applicable:

“ It (due process of law) is a requirement that 
cannot be satisfied by mere notice and hearing if 
a State has contrived a conviction through the pre­
tence of a trial which in truth is but used as a means



21

of depriving a defendant of liberty through a de­
liberate deception of court and jury by the presen­
tation of testimony known to be perjured. Such a 
contrivance by a State to procure the conviction and 
imprisonment of a defendant is as inconsistent with 
the rudimentary demands of justice as is the 
obtaining of a like result by intimidation. And the 
action of prosecuting officers on behalf of the State, 
like that of administrative officers in the execution 
of the laws, may constitute state action within the 
purview of the Fourteenth Amendment. ”

On the ground of fraud, there is very little to choose 
between the act of the State, referred to in Mooney v. 
Holohan, supra, and the act of the State in the present 
case. The State of Mississippi, through its use, as con­
fessions, of statements literally whipped, word for word, 
from petitioners, presented evidence a sfalse as perjury. 
The fraud in the two cases, as to the introduction of false 
testimony, is essentially the same.

In the instant case, however, the fraud of the State 
is aggravated by the infamous mistreatment, on the 
part of the State, which resulted in the alleged confes­
sions.

In this connection this Court, in the case of Ex 
Parte, Commonwealth of Virginia,, 100 U. S. 339, 25 L. 
Fd. 667, used the following language:

“ We have said the prohibitions of the 14th 
Amendment are addressed to the State. They are: 
‘No State shall make or enforce a law which shall 
abridge the privileges or immunities of citizens of



the United States, * * * nor deny to any person with­
in its jurisdiction the equal protection of the laws.’ 
They have reference to actions of the political body 
denominated a State, by whatever instruments or 
in whatever modes that action may be taken. A 
State acts by its legislative, its executive or its judi­
cial authorities. It can act in no other way. The con­
stitutional provision therefore, must mean that no 
agency of the State, or of the officers or agents by 
whom its powers are exerted, shall deny to any per­
son within its jurisdiction the equal protection of 
the laws. Whoever, by virtue of public position 
under a state government, deprives another of prop­
erty, life or liberty without due process of law, or 
denies or takes away the equal protection of the 
laws, violates the constitutional inhibition; and as 
he acts in the name and for the State, and is clothed 
with the State’s power, his act is that of the State. 
This must be so, or the constitutional prohibition has 
no meaning. Then the State has clothed one of its 
agents with power to annul or to evade it.”

See also in this connection, Neal v. Delaware, 103 
U. S. 370, 26 L. Ed. 567; Scott v. McNeal, 154 U. S. 34, 
38 L. Ed. 896; Chicago B. & Q. R. R., 166 U. S. 226, 41 
L. Ed. 979.

The following language in the case of Weeks v. 
United States, 232 U. S. 383, 58 L. Ed. 652 was quoted in 
the case of Cofer v. State, 152 Miss. 761, 118 So. 613:

“ The tendency of those who execute the crim­
inal laws of the country to obtain conviction by



23

means of unlawful seizures and enforced confes­
sions * * * should find no sanction in the judgments 
of the courts which are charged at all times with 
the support of the Constitution and to which people 
of all conditions have a right to appeal for the main­
tenance of such fundamental rights.”
We therefore submit that petitioners were denied 

due process of law by the fraud of the State in the se­
curing and using of these enforced confessions.

POINT II.
PETITIONERS WERE DENIED DUE PROCESS 

OF LAW THROUGH DENIAL OP COUNSEL.
The right to a hearing as a basic element of due 

process has repeatedly been construed to include the 
right to the aid of counsel. This Court ruled very posi­
tively on this subject in the recent case of Powell v. Ala­
bama, 287 U. S. 45, 77 L. Ed. 158. The right to aid of 
counsel has been repeatedly held to be no mere form or 
ceremony, but a substantial right, and thus a Court is 
bound to make an effective appointment of counsel, tak­
ing into consideration all of the circumstances.

In the instant case the record discloses the follow­
ing facts in connection with the appointment of counsel 
and the necessity for same: That petitioners are igno­
rant pauper negroes (R. 126, 39, 51, 112). On April 4, 
1934 they were indicted for murder. (R. 1). On April 5, 
1934 they were put to trial for their lives (R. 3). On a 
date not directly disclosed by the record, but necessarily



24

in the interval of time between the indictment and trial. 
Petitioners were arraigned and counsel appointed by the 
Court to defend them. (R. 2, 50, 54).

In order to satisfy the requirement of due process 
of law, in view of the fact that these negroes are ignorant 
paupers, the trial court was under a positive duty of 
appointing them counsel at a time and under circum­
stances which would, in fact, allow the defense adequate 
preparation. This the Court did not do. It is apparent 
that counsel for petitioners had no real opportunity to 
prepare themselves for the trial of this cause. The ele­
ment of time alone precluded them.

A careful study of the record in this case will reveal 
to any legal mind that the attorneys representing the 
petitioners were only half-heartedly going through the 
empty form of a trial and were not in truth and in 
fact attempting to protect the rights of these defendants.

In the case of Powell v. Alabama, supra, this Court 
used the following language:

“  * * * In a capital case, where the defendant 
is unable to employ counsel, and is incapable ade­
quately of making his own defense because of ig­
norance, feeblemindedness, illiteracy, or the like, it 
is the duty of the court, whether requested or not, 
to assign counsel for him as a necessary requisite 
of due process of law; and that duty is not discharg­
ed by an assignment at such a time or under such 
circumstances as to preclude the giving of effective 
aid in the preparation and trial of the case. To hold 
otherwise would be to ignore the fundamental postu-



25

late, already adverted to, ‘ that there are certain 
immutable principles of justice which inhere in the 
very idea of free government which no member of 
the Union may disregard.’ Holden v. Hardy, 169 
U. 8. 366, 42 L. Ed. 780, 18 S. Ct. 383, supra.”  
(Italics ours.)
See also People v. Winchester, 352 111. 237, 245, 185 

N. E. 580.
In view of the foregoing facts and authorities we 

submit that due process of law. was denied these peti­
tioners in that they were denied the aid of counsel.

POINT III.
PETITIONEES WERE DENIED DUE PROCESS OF 

LAW IN THAT THE TRIAL COURT POS­
SESSED NO JURISDICTION TO 

ENTER JUDGMENT.
In the case of Powell v. Alabama, supra, this court 

said:
“ It never has been doubted by this court, or 

any other so far as we know, that notice and hear­
ing are preliminary steps essential to the passing of 
an enforceable judgment, and that they, together 
with a legally competent tribunal having jurisdic­
tion of the case, constitute basic elements of the 
constitutional requirement of due process of law.”  
(Italics ours.)

We have demonstrated in the two preceding points 
that one of the preliminary steps essential to an en­
forceable judgment is lacking in this cause in the denial



26

of counsel, and further, that the right of petitioners to 
a fair and impartial trail was violated by the State 
through its agents, in the procurement and use of ex­
torted statements to obtain a conviction.

Certainly since deliberate fraud on the part of the 
State has been shown, resulting in the denial of funda­
mental rights to these petitioners, it must be conceded 
that petitioners were not accorded due process of law 
within the meaning of the Federal Constitution.

In view of the conduct of this cause, from its incep­
tion, the trial court was without authority to enter a 
binding judgment and its attempt so to do was a denial 
of due process of law. In this conection, we quote again 
from the case of Powell v. Alabama, supra, where this 
court employed the following language:

“ Mr. Justice Field, in an earlier case, Galpin v. 
Page, 18 Wall. 350, 368, 21 L. Ed. 959, 963, 964, said 
that the rule that no one shall be personally hound 
until he has had his day in court was as old as the 
law, and it meant that he must be cited to appear 
and afforded an opportunity to be heard. ‘ Judg­
ment without such citation and opportunity wants 
all the attributes of a judicial determination; it is 
judicial usurpation and oppression, and never can 
be upheld where justice is justly administered.’ ”
Again, as to the denial of a constitutional right of 

petitioners and as to its result and effect as to the valid­
ity of the hearing and the judgment of the court thereon, 
we refer this Court to the case of Nielsen, 131 U. S. 176, 
33 L. Ed. 118, wherein it was said:



27

“ In other words, a constitutional immunity of 
the defendant was violated by the second trial and 
judgment. It is difficult to see why a conviction 
and 'punishment under an unconstitutional law is 
more violative of a person’s constitutional rights, 
than an unconstitutional conviction and punishment 
under a valid law. In the first case, it is true, the 
court has no authority to take cognizance of the 
case; but, in the other, it has no authority to render 
judgment against the defendant. This was the case 
in Ex parte Lange where the court had authority 
to hear and determine the cause, but we held that 
it had no authority to give the judgment it did. It 
was the same in the case of Snow; the court had 
authority over the case, but we held that it had no 
authority to give judgment against the prisoner. 
He was protected by a constitutional provision, se­
curing to him a fundamental right. It was not a 
case of mere error in law, but a case of denying to 
a person a constitutional right. And where 
such a case appears on the record, the party is en­
titled to be discharged from imprisonment.”  (Italics 
ours.)

See also In re Bonner, 151 U. S. 242, 38 L. Ed. 149.

In addition to this, we have called the attention of 
the Court, supra, to the fact that the judgment herein 
is supported solely upon illegal evidence. On this point, 
the Oklahoma Court, in McRae v. State, 8 Okla. CR. 483, 
after quoting the due process clause from the Fourteenth 
Amendment said:



2 8

"Under this provision no state or court has the 
right to deprive any person of life, liberty or prop­
erty except in a lawful manner and upon lawful 
evidence. It is true that the admission of illegal 
testimony does not necessarily deprive a defendant 
of due process of law, because the other testimony in 
a case might show that it did not affect the results; 
but where illegal evidence is admitted which is ma­
terial in its character and which goes directly to the 
question at issue, and where the record shows that 
such evidence reasonably contributed to a verdict 
of guilty, then such a conviction cannot be said to 
have been obtained by due process of law. This is 
the condition of the record now before us. The 
hearsay evidence admitted was material and directly 
involved the pivotal points in the case, and without 
this testimony the jury might well have returned a 
verdict Of acquittal. We cannot, therefore, say that 
the introduction of this evidence was harmless er­
ror.”  Quoting from the syllabi.
In the case of Twining v. New Jersey, 211 U. S. 78, 

53 L. Ed. 97, this Court declined to hold that forcing a 
defendant to make a certain statement was in itself a 
denial of due process of law where the Constitution and 
Statutes of a state did not provide immunity from self­
incrimination. The Court said:

"Salutary as the principle (protection against 
self-incrimination) may seem to the great majority, 
it cannot be ranked with the right to hearing be­
fore condemnation, the immunity from arbitrary 
power not acting by general law s.......... It has no



29

place in the jurisprudence of civilized and free 
countries outside the domain of the common law, 
and it is nowhere observed among our own people 
in the search for truth outside the administartion 
of the law. It should, must, and will be rigidly ob­
served where it is secured by specific constitutional 
safeguards.”  (Italics ours.)
Justice Grififth, in this cause, ....... Miss........, 161

So. 470 (B. 173) as to the entering of the judgment 
herein by the Supreme Court of Mississippi said:

“ The Scottsboro cases are models of correct 
constitutional procedure as compared with this now 
before the Court. In fundamental respects, it is no 
better than the case reviewed in Moore v. Dempsey, 
261 U. S. 86, 67 L. Ed. 543, wherein the formal 
court procedure was without defect, hut the judg­
ment was vitiated by the substance of what actually 
lay behind it.

“ It may be that in a rarely occasional case which 
arouses the flaming indignation of a whole com­
munity, as was the case here, we shall continue yet 
for a long time to have outbreaks of the mob or 
resorts to its methods. But if mobs and mob meth­
ods must be, it would be better that their existence 
and their methods shall be kept wholly separate 
from the courts; that there shall be no blending of 
the devices of the mob and of the proceedings of 
the courts; that what the mob has so nearly com­
pleted let them finish, and that no court shall be 
adoption give legitimacy to any of the works of the



30

mob, nor cover by the frills and furbelows of a pre­
tended legal trial the body of that which in fact is 
the product of the mob, and then by closing the eyes 
to actualities, complacently adjudicate that the 
law of the land has been observed and preserved.

Anderson, J., concurs in this dissent.”  
Therefore there is no doubt but what petitioners 

rights to due process of law were denied by the entry 
of judgment by the trial court and its affirmance by the 
appellate court.

POINT IV.
PETITIONERS WERE DENIED DUE PROCESS OF 

LAW IN THAT THEY WERE DENIED EQUAD 
PROTECTION OF THE LAW.

Petitioners filed a motion for a new trial and in 
arrest of judgment (R. 141) in the Superme Court of 
Mississippi on the theory that no opportunity had been 
afforded for filing same in the lower court. The motion 
and affidavits in support thereof revealed that immedi­
ately after the jury found these petitioners guilty, the 
trial judge thereupon consulted a calendar and sentenced 
them at night after which they were carried to a jail in 
an adjoining county, and that early the next morning, 
the Court adjourned for the term.

Under Mississippi practice, every person is given 
the right to make a motion for a new trial; but according 
to the circumstances in this case, petitioners were de­
prived of this right. Had the opportunity been afforded, 
and had counsel appointed by the court taken advantage



31

thereof, the technicality on which the Supreme Court 
relied in affirming the case, on original appeal, would 
probably have been swept away.

While the right of making motion for a new trial 
is not essential to due process of law, yet if this privilege 
be allowed to some persons and not to all persons simi­
larly situated, such deprivation of the right to make the 
motion is equivalent to denial of due process of law, for 
due process of law and the equal protection of the laws 
are secured only when—

“  * * * the laws operate on all alike and do 
not subject the individual to an arbitrary exercise 
of the powers of the government.”  Duncan v. Mis­
souri, 152 IT. S. 377, at page 382.
In the case of Yick Wo v. Hopkins, 118 U. S. 356, 30 

L. Ed. 220, this Court used the following language, 
which appears to be applicable here:

“ Though the law itself be fair on its face and 
impartial in appearance, yet, if it is applied and 
administered by public authority with an evil eye 
and an unequal hand, so as practically to make un­
just and illegal discriminations between persons in 
similar circumstances, material to their rights, the 
denial of equal justice is still within the prohibition 
of the Constitution. This principle of interpreta­
tion has been sanctioned by this court in Henderson 
v. Mayor, etc. of New York, 92 U. S. 259 (Bk. 23, L. 
Ed. 543); Chy Luny v. Freeman, 92 U. S. 275 (Bk. 
23 L. Ed. 550); Ex parte Va. 100 U. S. 339 (Bk. 25



32

L. Ed. 676); Neal v. Delaware, 103 U. S. 370 (Bk. 26, 
L. Ed. 267), and Soon Ding v. Crowley (supra).”

In the case of State v. Guerringer, 265 Mo. 408, 178 
S. W. 65, the Supreme Court of Missouri held that where 
sufficient time was not allowed in which to make a mo­
tion for a new trail, the accused was denied due process 
of law. In this case the jury returned a verdict of guilty 
in a capital case fifteen minutes before midnight on the 
last night of the term. The law required that a motion 
for a new trial be made before the end of the term. The 
Court held in this case that the failure of the defendant 
to have a like opportunity with others similarly situated 
to have a sufficient time to make a motion for a new 
trail constituted a denial of due process and such denial 
required a new trial.

In its opinion the Court said in the above case:
“ Moreover, the Constitution guarantees to de­

fendant that he shall not be deprived of his prop­
erty, or his liberty, or his life without due process 
of law. If he had no opportunity to file a motion 
for a new trial, as we must concede he did not have, 
but notwithstanding that his life be taken, it will 
have been taken without due process of law.”
For the errors of the trial court in failing to con­

trol its sittings and adjournments so as to afford peti­
tioners a like opportunity with others similarly situated, 
to make a motion for a new trial, we think reversal must 
follow:

“ Surely it is better that justice travel with a 
leaden foot, rather than that she should walk rough-



shod over the constitutional rights of citizens, to be 
equal one with another before the law.”  State v. 
Guerringer, supra.

POINT' V.
THE DECISION OF THE SUPREME COURT OF 

MISSISSIPPI IS ITSELF A DENIAL OF 
DUE PROCESS OF LAW.

In the case of Snyder v. Mass., 291 U. S. 97, 78 L. 
Ed. 674, the Supreme Court of the United States defined 
the limits within which a State may regulate the pro­
cedure of its courts in consonance with due process of 
law as required by the Fourteenth Amendment to the 
Federal Constitution. In this case this court used the 
following language in this connection:

‘ ‘ The Commonwealth of Massachusetts is free 
to regulate the procedure of its courts in accordance 
with its own conception of policy and fairness un­
less in so doing it offends some principles of justice 
so rooted in the traditions and conscience of our 
people as to be ranked as fundamental. Twining v. 
New Jersey, 211 U. S. 78, 106, 111, 112; Rogers v. 
Peel, 199 U. S. 425, 434; Maxwell v. Dow, 176 U. S. 
581, 604; Hurtado v. California, 110 U. S. 516; 
Frank v. Mangum, 237 U. S. 309, 326; Powell v. Ala­
bama, 287 U. S. 45, 67.”

In the instant case, the Supreme Court of Missis­
sippi attempts to defeat the right of petitioners, de­
fendants in the trial court, to a fair and impartial trial, 
and this by a mere rule of procedure.



34

Why are these negroes sentenced to hang? Surely 
not for the murder of Raymond Stewart, for there is no 
competent evidence in the record against them on which 
a conviction for this crime could be based, hut simply 
because their attorneys (who were appointed by the 
Court) failed to object to the extorted confessions in the 
proper form of words at precisely the proper stage of 
the proceedings. The Supreme Court of Mississippi 
based its affirmance of this case on the original appeal 
on the fact that counsel for petitioners did ,not move to 
exclude the) admittedly incompetent confessions after 
their introduction.

Can this error in procedure of indifferent counsel 
prejudice the substantial rights of these petitioners who, 
despite the fact they were ignorant, illiterate “ corn­
field”  negroes took the stand (and not having legal 
training or being cognizant of technical rules of pro­
cedure) with all the earnestness of their souls, did all in 
their power to object and to move to exclude the illegal 
and incompetent? And all the time, the negroes were 
moving to exclude in the only way they knew how, 
their bodies were also pleading (the marks of the rope 
and lash were visible to all who gazed upon them) to 
the Court not to allow these purported confessions, so 
brutally extorted to be used against them.

But counsel contends that when the facts as to the 
involuntary nature of the confessions became so plain 
as no longer to be denied that then the duty devolved 
upon petitioners to move to exclude the testimony, or 
else they were helpless to protect themselves from the 
obvious fraud. This seems to us to be quibbling of the



35

utmost insincerity. The whole defense in this case was 
based upon a denial of the legality of these confessions. 
The means by which they were extorted were laid bare 
before the Court and jury in all their hideousness. They 
were repeatedly objected to, but no precise motion to 
exclude was made. However, no one could have been 
deceived as to the wishes of the petitioners with respect 
to these so-called confessions. Yet the Supreme Court 
of Mississippi attempts to defeat the right of petitioners 
to a fair and impartial trial and this by a mere rule of 
procedure. A conviction thus obtained by illegal evi­
dence is no triumph for justice and does not tend to 
uphold the majesty of the law.

In its Opinion on Suggestion of Error, in this cause 
(R. 166), the Supreme Court of Mississippi admits the 
illegality of the so-called confessions, under the Consti­
tution of the State of Mississippi, in that they were 
forced self-incrimination. (R. 168); the court expresses 
its horror of the manner in which the statements were 
extorted (R. 173), but in spite of these facts the court 
rules that because no motion to exclude was made by pe­
titioners after it became apparent that said statements 
had been extorted by violence, that petitioners waived 
all right to charge the admission of said evidence as 
error, both under the Constitution of the State of Missis­
sippi, and the due process clause of the Fourteenth 
Amendment to the Federal Constitution. (R. 168-169.)

In view of the settled law that waiver is the de­
liberate abandonment of a known right; in view of the 
further fact that petitioners objected to the so-called 
confessions, when they were first introduced, on the



36

ground that they were not free and voluntary (E. 35, 
41); that the whole defense was predicated upon a de­
nial of the truth of said statements, and an exposition 
of the shameful and hideous manner in which they were 
extorted, it is inconceivable to us that the doctrine of 
waiver is here correctly applied.

Further than this, such waiver, if attempted, would 
be void as against public policy. Under the law peti­
tioners could not waive their objection to the use by the 
state of deliberate fraud. Coppell v. Hall, 7 Wall, 542, 
19 U. S. (L. Ed.) 244; Motor Contract Co. v. Van Der 
Volgen, 162 Wash. 449, 298 Pac. 705, 79 A. L. E. 39.

And certainly they could not waive their objection 
to a fraud which, on their trial, denied to them funda­
mental rights, and thus secured their conviction and 
sentence of death.

But sweeping all argument as to waiver aside, the 
State of Mississippi, in its destruction of petitioners’ 
fundamental rights, likewise destroyed the validity of 
the trial. Mooney v. Holohan, supra, and In re Nielsen, 
supra. Because of the fraud of the State the binding 
effect of the whole proceeding against these petitioners 
was totally vitiated and destroyed; and under the cir­
cumstances the waiver of petitioners, if it can properly 
be said that there was one, was of no more effect than 
the illegal and void proceedings which occured prior 
thereto.

We submit, therefore, that it is apparent that any 
rule of procedure adopted by the Supreme Court of Mis­
sissippi, which serves as a device by which the court



37

may ignore the denial in the lower court of those funda­
mentals essential to due process of law, is so arbitrary 
and unjustifiable a denial of essential justice, as to be 
within itself a denial of due process of law. And es­
pecially does this seem true in that the error in proced­
ure was committed by counsel appointed by the court 
at a time, and under circumstances, which made adequate 
representation impossible. Klatshy v. Hatch, 157 N. Y. 
S. 878.

CONCLUSION

We conclude therefore, with deference, that under 
the facts and the law as hereinbefore set out that peti­
tioners have been deprived of their right to due process 
of law within the meaning of the Fourteenth Amendment 
to the Constitution of the United States on their trial 
in the Circuit Court of Kemper County and on their 
appeal to the Supreme Court of the State of Mississippi, 
and we respectfully ask that the judgment of the Su­
preme Court of Mississippi be reversed.

Respectfully submitted,

J. MORGAN STEVENS, 
EARL BREWER,
WILLIAM H. HEWITT,

Counsel for Peititioners-

Three weeks service and filing of this brief is here­
by expressly waived. This the 28th day of December, 
1935.

GREEK L. RICE, Attorney General 
W. D. CONN, JR., Asst. Atty. General 

Counsel for Respondent.









«11 n.ulil<l> ......... ....

Wes iiwmm Court, U. 4,
T Tj yr. D

JAN 6 1936

(BMfiU* fcUirtMfc OROfLEY
Otffflt

m  THE SUPREME COURT OF THE 
UNITED STATES
OCTOBER TERM 1935

ED BROWN, HENRY SHIELDS, and YANK  

ELLINGTON, Petitioners,

VS. No. 301

THE STATE OF MISSISSIPPI.

BRIEF OF RESPONDENT

GREEK L. RICE, Attorney General

WILLIAM DOW CONN, JR., and

WILLIAM H. MAYNARD, Assistant 
Attorneys General.

Counsel for Respondent.



1

■*i



SUBJECT INDEX

HISTORY OF CASE ...........................................   1

PRELIMINARY STATEMENT OF CASE................ 2
POINT I : THAT PETITIONERS WERE DENIED 

DUE PROCESS OF LAW BY FRAUD OF THE 
STATE, THROUGH ITS AGENTS.....................  3

POINT II: THAT PETITIONERS WERE DE­
NIED DUE PROCESS OF LAW THROUGH 
DENIAL OF COUNSEL.........................................  29

POINT III: THAT PETITIONERS WERE DE­
NIED DUE PROCESS OF LAW, IN THAT THE 
TRIAL COURT POSSESSED NO JURISDIC­
TION TO ENTER JUDGMENT ...........................  47

POINT IV: THAT PETITIONERS WERE DE­
NIED DUE PROCESS OF LAW, IN THAT 
THEY WERE DENIED EQUAL PROTECTION 
OF THE LAW ........................................   53

POINT V: THAT THE DECISION OF THE SU­
PREME COURT OF MISSISSIPPI IS, ITSELF,
A DENIAL OF DUE PROCESS OF LAW...  ......  58

CONCLUSION...............................................................  65

SECTIONS OF MISSISSIPPI CONSTITUTION CITED
Section 26 ..............................................    3
Section 146 .....................................................................  17

MISSISSIPPI STATUTES CITED (CODE OF 1930)
Section 586 ...............................................................  41, 42
Sections 588, 589, 590............................... ... ......... ...... 44
Section 1293 ................... ..............................................  1
These Statutes Set Out in Full in Appendix...... 67



IV .

Loftin vs. State, 150 Miss. 228.. ...................................  21

Markuson vs. Boucher, 175 U. S. 184 ..  .................  52
Marley vs. State, 109 Miss. 717....... ............................. 19
Matter of Moran, 203 U. S. 96......................................  51
Maxwell vs. Dow, 176 U. S. 581...........   15
McKay vs. Kalyton, 204 U. S. 458... ........................ .... 39
McMicking vs. Shields, 238 U. S. 99 .........................  49
McNulty vs. California, 149 U. S. 645...........    35
Miller vs. Texas, 153 U. S. 535..........       35
Mooney vs. Holohan, 79 L. Ed. 347______   62

Neilsen, In Re, 131 U. S. 176 ........ .......  ............... 52
Nichols vs. State, 165 Miss. 114........... .........................  22

Ong Chang Wing vs. United States, 218 U. S. 272....... 13

Pearson vs. Yewdall, 95 U. S. 294................................  6
Perkins vs. State, 160 Miss. 720....... .............................  20
Pervear vs. Commonwealth, 5 Wall. 475.....................  5
Peters vs. State, 158 Miss. 530 ..... ............... ..... .... 19
Pittman vs. State, 155 Miss. 745.. ...............................  45
Pittman vs. State, 147 Miss. 593............................... 46, 56
Powell vs. Alabama, 287 U. S. 45 ..............................  36
Presser vs. Illinois, 116 U. S. 252.............. ..................  6

Randolph vs. State, 152 Miss. 48..................................  20
Reed vs. State, 143 Miss. 686.... ....................... ' .... 56
Reid vs. Jones, 187 U. S. 153.... ............... ...................  52
Rogers vs. Peck, 199 U. S. 425 ................................  11

Salmon vs. State, 151 Miss. 539 ....... ...........................  18
Simmons vs. State, 61 Miss. 213 ........ .........................  19
Smith vs. Maryland, 18 How. 71 ... .... ..... ..... ....... 5
Smith vs. State, 165 Miss. 462...  ................................ 19
Snyder vs. Massachusetts, 291 U. S. 97 ..................8, 13, 62



V.

Spies vs. Illinois, 123 U. S. 131................... 4, 5, 33, 46, 58
State vs. Joyner, 148 Miss. 560....................................  44
Sugarman vs. United States, 249 U. S. 182............... . 41
Sullivan vs. Texas, 207 U. S. 416.............................. . 39

Tatum vs. State, 171 Miss. 336....................................  56
Taylor vs. State, 148 Miss. 621................................. . 18
The Justices vs. Murray, 9 Wall. 274.........................:.... 5
Twining vs. New Jersey, 211 U. S. 78 .........................6, 7
Tyler vs. State, 159 Miss. 223 .............................. ....... 19

United States vs. Cruikshank, 92 U. S. 542.................. 6
Urquhart vs. Brown, 205 U. S. 179............................. 52

Walker vs. Sauvinet, 92 U. S. 90..................................  6
Weatherford vs. State, 164 Miss. 888........................... 20
Whit vs. State, 85 Miss. 208.........................................  17
Whittaker vs. State, 169 Miss. 517..............................  19
Williams vs. State, 72 Miss. 117.................................... 22
Wilson vs. North Carolina, 169 U. S. 586..................... 11
Withers vs. Buckley, 20 How. 84..................................  5

Young vs. State, 150 Miss. 787.................................... 56



_  2—

of the State, Mississippi’s highest court of appeals. This 
judgment was affirmed, five of the judges of the court 
concurring in the affirmance (R. 127 et seq.), with one 
dissenting. (R. 135 et seq.)

After the affirmance in the State Supreme Court, a 
Suggestion of Error was filed in that court by attorneys 
other than those who represented the petitioners in the 
trial court and in the Supreme Court on the original appeal 
(R. 138 et seq.).

Upon this Suggestion of Error, for the first time in 
the proceedings, Federal questions were asserted. This 
Suggestion of Error was overruled by the Court, four of 
the judges concurring therein (R. 166 et seq.) with two 
judges dissenting (R. 173 et seq.).

Thereupon, a petition for writ of certiorari was ad­
dressed to this Court, which was sustained, the order al­
lowing it being filed on October 14, 1935.

PRELIMINARY STATEMENT OF THE CASE

In the main, the petitioners rely upon two major 
propositions: (1) that the use of extorted confessions 
against them by the state amounted to a denial of due 
process of law, within the meaning of the Fourteenth 
Amendment to the Constitution of the United States; and 
(2) that they were denied, in reality, representation by 
counsel, and thus denied due process of law within the 
meaning of that Amendment. There are three other as-



_  3—

signments of error upon which argument is made here, but 
they, in effect, depend entirely upon the two main pro­
positions above referred to.

From the arguments made here by petitioners, it will 
be seen that a detailed summary of all the facts is un­
necessary for a proper understanding of them. However, 
respondent submits that the facts have been accurately 
drawn and presented in the opinion of the Mississippi 
Supreme Court, appearing at page 128 et seq. of the record 
now before this Court.

Such facts as are necessary for a proper understand­
ing of the various contentions will be set out in connection 
with the argument thereon.

BRIEF OF THE ARGUMENT

POINT I.

THAT: PETITIONERS WERE DENIED DUE PROCESS 
OF LAW BY THE FRAUD OF THE STATE, THROUGH 
ITS AGENTS.

It is said that the use of confessions coerced from ap­
pellants by the State in the prosecution of this case con­
stituted a double fraud: (1) that it violated Section 26 of 
the Constitution of the State of Mississippi, which pro­
vides that

“In all criminal prosecutions the accused * * * 
shall not be compelled to give evidence against 
himself” ;



and, (2) that it violated the Fourteenth Amendment to the 
Federal Constitution, and particularly that clause of it 
which provides:

“Nor shall any State deprive any person of 
life, liberty or property, without due process of 
law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”

The Mississippi Supreme Court held that no rights 
of appellants under the Constitution were infringed (R. 
168). But, assuming, not conceding, that the confessions 
in this case were coerced, has this court the right, under 
the law, to review the action of the State courts in passing 
upon the admissibility of this evidence so far as it affects 
rights under the State’s Constitution ? This court has held 
that it has not that right, and has laid down the rule that 
when the highest court of a State has decided that proceed­
ings in a State court have not infringed any rights of an 
accused guaranteed him by the State’s Constitution, such 
decision cannot be reviewed by the United States Supreme 
Court.

Brown vs. New Jersey, 175 U. S. 172;

Barrington vs. Missouri, 205 U. S. 483;

Spies vs. Illinois, 123 U. S. 131 (181).

On the other hand, the State of Mississippi submits 
that there is nothing in the Federal Constitution which is 
infringed by the use in state courts of coerced confessions, 
even if we concede that the confessions in this case were



—  5-

so coerced; or, stated in other words, the exemption from 
compulsory self-incrimination in the courts of the States 
is not secured by any part of the Federal Constitution.

The Fifth and Fourteenth Amendments to the Federal 
Constitution are the ones dealing with the subject of “due 
process of law.” The Fifth Amendment also provides that

“no person * * * shall be compelled, in any 
criminal case, to be a witness against himself.”

But it has been uniformly held by this court that the Fifth 
Amendment was not intended to limit the powers of the 
State Governments in respect to their own people, but to 
operate on the National Government alone. It regulates 
the procedure of the Federal Courts exclusively, and is not 
obligatory upon the several State of the Union.

Barrington vs. Missouri, 205 U. S. 483;
Ensign v. Pennsylvania, 227 U. S. 592;
Barron vs. Baltimore, 7 Pet. (32 U. S.)243;

Spies vs. Illinois, 123 U. S. 131;
Livingston vs. Moore, 7 Pet. 469;
Fox vs. Ohio, 5 How. 410;

Smith vs. Maryland, 18 How. 71;

Withers vs. Buckley, 20 How. 84;
Pervear vs. Commonwealth, 5 Wall. 475;

The Justices vs. Murray, 9 Wall 274;
Edwards vs. Elliot, 21 Wall 532;



— 6—

Walker vs. Sauvinet, 92 U. S. 90;

United States vs. Cruicshank, 92 U. S. 542;

Pearson vs. Yewdall, 95 U. S. 294;

Davidson vs. New Orleans, 96 U. S. 97;

Kelly vs. Pittsburg, 104 U. S. 78;

Presser vs. Illinois, 116 U. S. 252;
Brown vs. New Jersey, 175 U. S. 172;

The Fourteenth Amendment legitimately operates to 
extend to the citizens and residents of the States the same 
protection against arbitrary state legislation affecting life, 
liberty and property, as is offered by the Fifth Amendment 
against similar legislation by Congress. But the Federal 
Courts ought not to interfere when what is complained 
of amounts to the enforcement of the laws of a State ap­
plicable to all persons in like circumstances and conditions, 
and the Federal Courts should not interfere unless there 
is some abuse of law amounting to confiscation of prop­
erty or deprivation of personal rights.

In Twining vs. New Jersey, 211 U. S. 78, this court 
observed:

“The Fourteenth Amendment withdrew from 
the States powers theretofore enjoyed by them to 
an extent not yet fully ascertained, or rather, 
to speak more accurately, limited those powers 
and restrained their exercise. There is no doubt 
of the duty of this court to enforce the limitations



_  7—

and restraints whenever they exist, and there 
has been no hesitation in the performance of tV  
duty. But whenever a new limitation or restric­
tion is declared it is a matter of grave import, 
since, to that extent, it diminishes the authority 
of the State, so necessary to the perpetuity of our 
dual form of government, and changes its-rela­
tion to its people and to the Union.”

In this same case (Twining vs. New Jersey, supra), 
this court, in discussing the privilege against self-incrim­
ination, said: (113)

“Much might be said in favor of the view that 
the privilege (against self-incrimination) was 
guaranteed against state impairment as a priv­
ilege and immunity of National citizenship, but, 
as has been shown, the decisions of this court 
have foreclosed that view. There seems to be 
no more reason whatever, for straining the mean­
ing of due process of law to include this privilege 
within it, because, perhaps, we may think it of 
great value. The States had guarded the priv­
ilege to the satisfaction of their own people up to 
the adoption of the Fourteenth Amendment. No 
reason is perceived why they cannot continue to 
do so. The power of their people ought not to be 
fettered, their sense of responsibility lessened, 
and their capacity for sober and restrained self 
government weakened by forced construction of 
the Federal Constitution. * * * * *



_  8—

«* * * The authorities upon the question 
are in conflict. We do not pass upon the con­
flict, because, for the reasons given, we think 
that the exemption from compulsory self-incrim­
ination in the courts of the States is not secured 
by any part of the Federal Constitution.”

In Snyder vs. Massachusetts, 291 U. S. 97, the court
said:

“ * * * Consistently with that amendment 
(The Fourteenth), trial by jury may be abolished. 
Walker vs. Sauvinet, 92 U. S. 90; Maxwell vs. 
Dow, supra. (176 U. S. 581) ; N. Y. Central R.
Co. vs. White, 243 U. S. 188, 208; Wagner Elec­
tric Co. vs Lyndon, 262 U. S. 226, 232. Indict­
ments by a grand jury may give way to informa­
tions by a public officer. Hurtado vs. California, 
supra, (110 TJ. S. 516) ; Gaines vs. Washington,
277 U. S. 81, 86. The privilege against self-in­
crimination may be withdraivn and the accused 
put upon the stand as a witness for the state.

Twining vs. New Jersey, supra, (211 U. S. 78.)’

Since, from the foregoing dicisions of this court, it 
clearly appears that the Federal Constitution contains no 
guaranty against self-incrimination in the courts of a 
State, and that the privilege of exemption from compul­
sory self-incrimination may be entirely withdrawn by a 
State without infringing any provision of the Federal 
Constitution, it then remains to be seen whether, in the use 
of these confessions, these appellants have been subjected



9—

to the orderly processes of the law in the trial of their case, 
or have been arbitrarily discriminated against.

How far, under the Fourteenth Amendment to the 
Federal Constitution, may a State go in setting up and 
regulating its own forms of procedure and practice?

In Jordan vs. Massachusetts, 225 U. S. 167, the Court 
quoted from its decision in the case of Louisville & Nash­
ville R. Co. vs. Schmidt, 177 U. S. 230, 236, as follows: 
(176)

“ ‘It is no longer open to contention that the 
due process clause of the Fourteenth Amendment 
to the Constitution of the United States does not 
control mere forms of procedure in State Courts 
or regulate practice therein. All its requirements 
are complied with, provided in the proceedings 
which are claimed not to have been due process 
of law the person condemned has had sufficient 
notice and adequate opportunity to defend. Iowa 
Central Railway vs. Iowa, 160 U. S. 389; Wilson 
vs. North Carolina, 169 U. S. 586.’

“When the essential elements of a court hav­
ing jurisdiction in which an opportunity for a 
hearing is afforded are present, the power of a 
state over its methods of procedure is substan­
tially unrestricted by the due process clause of 
the Constitution.

“Touching the power of the States over their 
procedure for the administration of their police



■10-

power, Mr. Justice Moody, in Twining vs. New 
Jersey, cited above, (175 U. S. 172), said:

“ ‘The power of their people ought not to 
be fettered, their sense of responsibility lessened, 
and their capacity for sober and restrained self- 
government weakened by forced construction of 
the Federal Constitution. If the people of New 
Jersey are not content with the law as declared 
in repeated decisions of their courts, the remedy 
is in their own hands.’ ”

In Allen vs. Georgia, 186 U. S. 138, the facts in sub­
stance were that a convicted murderer, under death sen­
tence, escaped pending an appeal to the State Supreme 
Court. The Supreme Court of Georgia, upon being advised 
that the convict was a fugitive, ordered his writ of error 
dismissed, unless he should surrender himself to custody 
or be re-captured within sixty day. At the expiration of 
the sixty days, the convict not having surrendered or been 
recaptured, his writ of error was finally dismissed. Sub­
sequently, he was recaptured and obtained a writ of error 
to this court upon the alleged ground that the dismissal of 
his writ of error by the State Court under the circum­
stances was a denial of due process.

This court affirmed the action of the State Supreme 
Court and in the course of the opinion (140) said:

“ * * * * Without attempting to define
exactly in what due process consists, it is suf­
ficient to say that, if the Supreme Court of a



— 11-

State has acted in consonance with the consti­
tutional laws of a State and its own procedure, it 
could only be in very exceptional circumstances 
that this court would feel justified in saying that 
there had been a failure of due legal process. We 
might ourselves have pursued a different course 
in this case, hut that is not the test. The plain­
tiff in error must have been deprived of one of 
those fundamental rights, the observance of 
which is indispensable to the liberty of the citi­
zen, to justify our interference.”

The foregoing quotation was set out and appoved in 
Wilson vs. North Carolina, 169 U. S. 586, 593.

In Rogers vs. Peck, 199 U. S. 425, the court said:

(434) “The reluctance with which this court 
will sanction Federal interference with a state 
in the administration of its domestic law for the 
prosecution of crime has been frequently stated 
in the deliverances of the court upon the subject.
It is only where fundamental rights, specially 
secured by the Federal Constitution, are invaded 
that such interference is warranted. Ex Parte 
Reggel, 114 U. S. 642; In re Converse, 137 U. S.
624; Allen vs. Georgia, 166 U. S. 138; Hodgson 
vs. Vermont, 168 U. S. 262; Brown vs. New Jer­
sey, 175 U. S. 172; In re Frederich, 149 U. S.
7 0 * * * * *

Due process of law, guaranteed by the Four­
teenth Amendment, does not require the State to



— 12—

adopt a particular form of procedure, so long as 
it appears that the accused has had sufficient 
notice of the accusation and an adequate oppor­
tunity to defend himself in the prosecution. Louis­
ville & Mashville Railroad Co. vs. Schmidt, 177 U.
S. 230; Wilson vs. North Carolina, 169 U. S. 586.”

In Frank vs. Mangum, 237 U. S. 309 (326), the court 
observed:

“As to the ‘due process of law’ that is re­
quired by the Fourteenth Amendment, it is per­
fectly well settled that a criminal prosecution in 
the courts of a state, based upon a law not in it­
self repugnant to the Federal Constitution, and 
conducted according to the settled course of ju­
dicial proceedings as established by the laav of 
the state, so long as it includes notice, and a hear­
ing, or an opportunity to be heard, before a 
court of competent jurisdiction, according to es­
tablished modes of procedure, is ‘due process’ in 
the Constitutional sense. Walker vs. Sauvinet, 
92 U. S. 90, 93; Hurtado vs. California, 110 U. S. 
516, 535; Andrews vs. Schwartz, 156 U. S. 272, 
276; Bergemann vs. Backer, 157 U. S. 655, 659; 
Rogers vs. iPeck, 199 U. S. 425, 434; Drury vs. 
Lewis, 200 U. S. 1, 7; Felts vs. Murphy, 201 U. S. 
123, 129; Howard vs. Kentucky, 200 U. S. 164.”

In this case (Frank vs. Mangum) the court held that 
the practice in Georgia whereby a defendant might waive 
his right to be present at the reception of the jury’s ver-



—13

diet “is a regulation of criminal procedure that is within 
the authority of the state to adopt.”

And, in Garland vs. Washington, 232 U. S. 642, 645, 
the court said:

“Due process of law, this court has held, 
does not require the state to adopt any particular 
form of procedure, so long as it appears that the 
accused has had sufficient notice of the accusa­
tion and an adequate opportunity to defend him­
self in the prosecution. Rogers vs. Peck, 199 
U. S. 425, 435.”

Again, in Ong Chang Wing vs. United States, 218 
U. S. 272, the court said:

(279) “This court has had frequent occasion to 
consider the requirements of due process of law 
as applied to criminal procedure, and, generally 
speaking, it may be said that if an accused has 
been heard in a court of competent jurisdiction, 
and proceeded against under the orderly processes 
of the law, and only punished after inquiry and 
investigation, upon notice to him, with an oppor­
tunity to be heard, and a judgment awarded with­
in the authority of a constitutional law, then he 
has due process of law. Rogers vs. Peck, 199 
U. S. 425, 435; Twining vs. New Jersey, 211 U.
S. 78, and the cases therein cited.”

In Snyder vs. Massachusetts, 291 U. S. 97, 105, this 
court said:



— 14—

“The Commonwealth of Massachusetts is 
free to regulate the procedure of its courts in ac­
cordance with its own conception of policy and 
fairness unless in so doing it offends some prin­
ciple of justice so rooted in the traditions and 
conscience of our people as to be ranked as funda­
mental. Twining vs. New Jersey, 211 U. S. 78, 
106, 111, 112; Rogers vs. Peck, 199 U. S. 425, 
434; Maxwell vs. Dow, 176 U. S. 581, 604; Hur­
tado vs. California, 110 U. S. 516; Frank vs. 
Mangum, 237 U. S. 309, 326; Powell vs. Alabama, 
287 U. S. 45, 67. Its procedure does not run 
foul of the Fourteenth Amendment because an­
other method may seem to our thinking to be fair­
er or wiser or to give a surer promise of protec­
tion to the prisoner at bar. Consistently with 
that amendment, trial by jury may be abolished. 
Walker vs. Sauvinet, 92 U. S. 90; Maxwell vs. 
Dow, supra; N. Y. Central T. Co. vs. White, 243 
U. S. 188, 208; Wagner Electric Co. vs. Lyndon, 
262 U. S. 226, 232; Indictments by a grand jury 
may give way to informations by a public of­
ficer. Hurtado vs. California, supra; Gaines vs. 
Washington, 277 U. S. 81, 86. The privilege 
against self-incrimination may be withdrawn and 
the accused put upon the stand as a witness for 
the state. Twining vs. New Jersey, supra. What 
may not be taken away is notice of the charge 
and an adequate opportunity to be heard in de­
fense of it. Twining vs. New Jersey, supra; 
Powell vs. Alabama, supra, pp. 68, 71; Holmes



1 5 —

vs. Conway, 241 U. S. 624. Cf. Blackmer vs. 
United States, 284 U. S. 421, 440.”

The last paragraph of this decision (122) reads as 
follows:

“The Constitution and statutes and judicial 
decisions of the Commonwealth of Massachusetts 
are the authentic forms through which the sense 
of justice of the people of that Commonwealth 
expresses itself in law. We are not to supersede 
them on the ground that they deny the essentials 
of a trial because opinions may differ as to their 
policy or fairness. Not all the precepts of con­
duct precious to the hearts of many of us are im­
mutable principles of justice, acknowledged sem­
per ubique et ab omnibus (Otis vs. Parker, 187 
U. S. 606, 609), wherever the good life is a sub­
ject of concern. There is danger that the crim­
inal law will be brought into contempt—that dis­
credit will even touch the great immunities as­
sured by the Fourteenth Amendment—if gossa­
mer possibilities of prejudice to a defendant are 
to nullify a sentence pronounced by a court of 
competent jurisdiction in obedience to local law, 
and set the guilty free.”

In Maxwell vs. Dow, 176 U. S., 581, 595, it is said:

“The states, so far as this amendment (The 
Fourteenth) is concerned, are left to regulate 
trials in their own courts in their own way.”



- 16-

In the concluding paragraph of this opinion, the 
court, in discussing the rule just quoted, said:

“Under this construction of the amendment, 
there can be no just fear that the liberties of the 
citizen will not be carefully protected by the 
states, respectively. It is a case of self-protec­
tion, and the people can be trusted to look out 
and care for themselves. There is no reason to 
doubt their willingness or their ability to do so, 
and when providing in their constitution and leg­
islation for the manner in which civil or criminal 
actions shall be tried, it is in entire conformity 
with the character of the Federal Government 
that they should have the right to decide for 
themselves what shall be the form and character 
of the procedure in such trials, whether there 
shall be a jury of twelve or a lesser number, and 
whether the verdict must be unanimous or not. 
These are matters which have no relation to the 
character of the Federal Government. As was 
stated by Justice Brewer, in delivering the opin­
ion of the court in Brown vs. New Jersey, 175 
U. S. 172, the State has full control over the pro­
cedure of its courts, both in civil and criminal 
cases, subject only to the qualification that such 
procedure must not work a denial of fundamental 
rights or conflict with specific and applicable 
provisions of the Federal Constitution.”

And, as stated in the case of Chicago, R. I. & P. R. Co. 
vs. Cole, 251 U. S. 54, 56, this court has sustained all state



—17-

laws statutory or judicially declared, regulating procedure, 
evidence and methods of trial, including denial of jury 
trial in both civil and criminal cases.

Consistent, then, with the foregoing decisions of this 
court, the State of Mississippi has adopted certain rules 
regulating the admission of evidence in the trial of cases 
in its courts, and certain of these rules, particularly with 
reference to the trial of criminal cases, so far as they re­
late to the situation presented here, will be now referred 
to.

The Mississippi Supreme Court, as provided by Sec­
tion 146 of that State’s Constitution, is one of review only. 
It is not a court of original jurisdiction. That Section 
of its constitution provides:

“The Supreme Court shall have such juris­
diction as properly belongs to a court of appeals.”

That court acts only on the record as made in the 
trial court and will not go outside of the record made at 
the trial in reviewing a judgment.

City of Pascagoula vs. Delmas, 157 Miss. 619, 128 So.
743;

Akroyd vs. State, 107 Miss. 51, 64 So. 936;
Bufkin vs. State, 134 Miss. 116, 98 So. 455;

Lee vs. State, 160 Miss, 618, 134 So. 185;

Fairley vs. State, 152 Miss. 656, 120 So. 747;

Whit vs. State, 85 Miss. 208, 37 So. 809;



- 18-

Error in the admissibility of evidence can be predi­
cated only on an objection thereto specifically pointed out 
the infirmity therein.

Jackson vs. State, 163 Miss. 235, 140 So. 683;
Howard vs. Town of Newton, 108 Miss. 548, 67 So. 49;

Boatwright vs. State, 143 Miss. 676, 109 So. 710;

Error in the admission of evidence cannot be assign­
ed and a review had in the absence of objections in the 
court below. In other words, the Mississippi Supreme 
Court will not hold a trial court in error, unless the trial 
court has been called upon, by objection to evidence, to 
rule, and has ruled erroneously.

Boutwell vs. State, 165 Miss. 16, 143 So. 479;

Grady vs. State, 144 Miss. 778, 110 So. 225;

Salmon vs. State, 151 Miss. 539, 118 So. 610;
Dugan vs. State, 151 Miss. 781, 119 So. 298;

Taylor vs. State, 148 Miss. 621, 114 So. 390.

Not only must the objection to evidence be specific, 
pointing out the alleged infirmity in it, but the objector is 
held to the same ground of his objection as in the trial 
court. He cannot assign a new ground of objection on re­
view. This is in accord with the rule that the parties to 
the litigation are confined in the Supreme Court to the 
precise questions raised and litigated in the trial court, 
since the Supreme Court is one of appellate jurisdiction 
only.



—19

Peters vs. State, 158 Miss. 530; 130 So. 695.
Ma-rley vs. State, 109 Miss. 717, 69 So. 210;

Conwill vs. State, 147 Miss. 118, 112 So. 868;

Duckworth vs. Town of Taylorsville, 142 Miss. 440, 
107 So. 668;

Boutwell vs. State, 165 Miss. 16, 143 So. 479.

With reference to the admission of confessions into 
evidence, the law of Mississippi is that an involuntary 
confession, if properly objected to, is inadmissible. But 
if no objection is registered to an incompetent confession, 
there is nothing of which an accused can complain. This 
is in strict accord with the general rules laid down above.

The competency of a confession is a matter for the 
trial court to pass upon, and the trial court passes upon 
it as and when it is offered in evidence, provided an ob­
jection is made.

Simmons vs. State, 61 Miss. 243;
Ellis vs. State, 65 Miss. 44, 3 So. 188;

Lipscomb vs. State, 75 Miss. 559, 23 So. 210;

Durham vs. State, 158 Miss. 833, 131 So. 422;

Tyler vs. State, 159 Miss. 223, 131 So. 417;
Whittaker vs. State, 169 Miss. 517, 142 So. 474;
Smith vs. State, 165 Miss. 462, 144 So. 233.

And, when a confession is offered in evidence, the 
party against whom it is sought to be used may, if he so



-2 0 -

requests, have the court determine its competency vel non 
in the absence of the jury.

Ellis vs. State, 65 Miss. 44, 3 So. 188;
Lee vs. State, 137 Miss. 329, 102 So. 296;

Randolph vs. State, 152 Miss. 48, 118 So. 354;
Fletcher vs. State, 159 Miss. 41, 131 So. 251;

Jackson vs. State, 163 Miss. 235, 140 So. 683;

When a preliminary inquiry into the admissibility of 
a confession is requested and allowed by the trial court, 
it is the duty of the accused, at that time, to show, if he 
can, the involuntary character of such alleged confession.

Perkins vs. State, 160 Miss. 720, 135 So. 357;
Weatherford vs. State, 164 Miss. 888, 143 So. 853;

Lee vs. State, 137 Miss. 329, 102 So. 296;
Ellis vs. State, 65 Miss. 44, 3 So. 188;

If, when the state offers a confession in evidence, the 
accused requests and obtains a preliminary inquiry into its 
admissibility in the absence of the jury and at such pre­
liminary inquiry allows the state to prove the voluntary 
character of same, without showing, or offering to show, 
that such confession was involuntary, the trial court will 
not be held to have erred in allowing the confession to be 
related to the jury. And if, during the subsequent phases 
of the case, no motion is made to exclude such confession 
after there might be sufficient evidence to make the vol-



— 2 1 —

untary character of it questionable, and no ruling called 
for which would require the trial judge to again pass upon 
the competency of such evidence, under the rules set out 
supra, there is nothing of which he can complain in the 
court of review.

Loftin vs. State, 150 Miss. 228, 116 So. 435.

This latter case (Loftin vs. State) is squarely in point 
with the case at bar, and is direct authority for the de­
cision in the case at bar.

In the case at bar, as pointed out by the Mississippi 
Supreme Court in its decision, the showing upon the pre­
liminary inquiry into the competency of the confessions 
satisfied that they were voluntary. There was nothing 
shown to the contrary by the prisoners or anyone else at 
this preliminary inquiry—which is required under the 
rules laid down above. Afterwards, when the prisoners 
were testifying on the merits of the case, they testified in 
such a way as to throw doubt upon the competency of their 
confessions, as related by state witnesses. But they never, 
from that time on, called upon the court by motion, or any 
other procedural step which required it to again rule upon 
the competency of this evidence in the light of the subse­
quent testimony. The Mississippi Supreme Court, in re­
viewing this trial, and in affirming the decision of the 
trial court, merely followed old, well established rules of 
practice and procedure, as set out above, and particularly 
the case of Loftin vs. State, supra.

After a confession has been held competent by the 
trial judge and it is allowed to go to the jury, the jury is



— 22-

then entitled to have detailed to it the circumstances un­
der which the confession was made. This is the rule in 
Mississippi, because there the jury is the sole judge of 
the credibility of witnesses and the weight to be given their 
testimony, and without proof of such circumstances the 
jury would be at a loss as to the weight to be given it.

Ellis vs. State, 65 Miss. 44, 3 So. 188;

Williams vs. State, 72 Miss. 117, 16 So. 296;

Brown vs. State, 142 Miss. 335, 107 So. 373;

Nichols vs. State, 165 Miss. 114, 145 So. 903.

This was the theory of the defendants in this case. 
When the preliminary inquiry showed the confessions to 
be voluntary, as pointed out above, they did not show, or 
offer to show, anything that would indicate them to be 
otherwise. Later, while testifying on the merits of the 
case, they testified as to the reasons they had for making 
the confessions, and instead of calling upon the court to 
rule upon their competency, they elected to make it an out 
and out jury question, and procured instructions (No. 2, 
page 122 of record; and No. 8, page 124 of the record) 
which told the jury that if it believed their confessions were 
the result of coercion, force, threats, or intimidation, it 
should not consider such confessions as evidence against 
them.

The petitioners have not brought their case within 
the realm of review of the Mississippi court under these 
old, well-settled and established rules, and they can com-



— 23

plain now only of their own failure to proceed along the 
orderly lines of procedure marked out by the courts of this 
state. As pointed out in the decision of the Mississippi 
Supreme Court in its decision of this case (Record, 172) :

“The rules of procedure here applied are 
technical only in the sense that all such rules 
are, and what the appellants request is simply 
that they be excepted from the procedure here­
tofore uniformly applied to all litigants. This 
we cannot do. All litigants, of every race and 
color, are equal at the bar of this court, and we 
would feel deeply humiliated if the contrary could 
be justly said.”

The case, both in the trial court and in the State Su­
preme Court, has been tried according to the rules and 
regulations that are applied in all cases of its like, and 
when this has been done, there is nothing of which the 
prisoners may complain in this court.

As said by this court in the opinion in the case of 
In re Converse, 137 U. S. 624, 631:

“ * * * Appellant has been subjected, as all 
persons within the State of Michigan are, to the 
law in its regular course of administration 
through courts of justice, and it is impossible to 
hold that a judgment so arrived at is such an 
unrestrained and arbitrary exercise of power as 
to be utterly void.



— 24—

“We repeat, as has been so often said before, 
that the Fourteenth Amendment undoubtedly 
forbids any arbitrary deprivation of life, liberty 
or property, and in the administration of crim­
inal justice requires that no different or higher 
punishment shall be imposed on one than is im­
posed on all for like offenses, but it was not de­
signed to interfere with the power of the State 
to protect the lives, liberty and property of its 
citizens; nor with the exercise of that power in 
the adjudications of the courts of a State in ad­
ministering the process provided by the law of 
a State.”

This last paragraph was also quoted with approval in 
the case of Hodgson vs. Vermont, 168 U, S. 262, 273.

Let us go further, however and suppose that the peti­
tioners had moved to exclude the confessions after their 
testimony had gone in, and the court had overruled that 
motion. Let us suppose this was error, and let us likewise 
suppose that the Supreme Court of Mississippi had affirm­
ed the conviction. What would their rights be then to have 
this court review their conviction?

In Jones vs. Buffalo Creek Coal Co., 245 U. S. 328, 
this court said:

“It is conceivable that the defendants below 
were right in whole or in part, and that the trial 
judge erred in admitting some or all of the evi­
dence objected to and in rendering judgment for



— 25-

the plaintiff. But error of a trial judge in ad­
mitting evidence or entering judgment after full 
hearing does not constitute a denial of due pro­
cess of law. Central Land Co. vs. Laidley, 159 
U. S. 103, 112.”

And in Bonner vs. Gorman, 213 U. S. 103, it was said:

“It is firmly established that when parties 
have been fully heard in the regular course of 
judicial proceedings an erroneous decision of the 
state court does not deprive the unsuccessful 
party of his property without due process of law 
within the Fourteenth Amendment of the Con­
stitution of the United States.”—citing Central 
Land Co. vs. Laidley, 159 U. S. 103, 112.

And, again, in American Railway Express Co. vs. 
Kentucky, 273 U. S. 269, 273, this court held:

“It is firmly established that a merely er­
roneous decision given by a state court in the 
regular course of judicial proceedings does not 
deprive the unsuccessful party of property with­
out due process of law. Arrowsmith vs. Har- 
moning, 181 U. S. 194, 195; Iowa Central Ry. Co. 
vs. Iowa, 160 U. S. 389, 393; Tracy vs. Ginzberg,
205 U. S. 170, 177; Bonner vs. Gorman, 213 U. S.
86, 91; McDonald vs. Oregon R. R. & Nav. Co.,
233 U. S. 665, 669.”

In the case of Barrington vs. Missouri, 205 U. S. 483, 
the appellant had been tried and convicted of murder. On



- 2 6 -

appeal to the State Supreme Court, the judgment was af­
firmed. A motion for rehearing, asserting Federal ques­
tions, was filed and denied without opinion. There was a 
motion to transfer to the court en banc which was sustain­
ed and the judgment was again affirmed. Federal ques­
tions were set up in this later motion, but the court de­
livered no opinion thereon. The case was then carried by 
writ of error to this court. One of the contentions was 
that alleged extra-judicial admissions had been extorted 
from him while under arrest and that the use of these ad­
missions in evidence denied him his rights under the Fed­
eral constitution, the privilege against self-incrimination. 
As to the introduction of these admissions of the accused, 
the court said:

“When the state offered in evidence the 
statements made by the defendant following his 
arrest, the trial court excluded the jury and heard 
the testimony of persons present at the time for 
the purpose of determining the competency there­
of. After the examination of a number of wit­
nesses, who detailed fully the circumstances 
under which the statments were made, counsel 
objected ‘because there is no foundation laid for 
it and because it was (not) voluntary. This ob­
jection was overruled and the evidence admitted.”

And, in discussing the asserted Federal question, 
raised for the first time on the motion for rehearing, the 
court said:

“The suggestion came too late, and, more­
over, Article V of the Amendments, alone relied



— 27—

on, does not operate as a ‘restriction of the pow­
ers of a state, but was intended to operate solely 
upon the Federal Government.’ Brown vs. New 
Jersey, 175 U. S. 172. And, if, as decided, the 
admission of this testimony did not violate the 
rights of the plaintiff in error under the Consti­
tution and Laws of the State of Missouri, the rec­
ord affords no basis for holding that he was not 
awarded due process of law. Howard vs. Fleming,
191 U. S. 126.”

The case of Ensign vs. Pennsylvania, 227 U. S. 592, 
involved a prosecution of certain bankers for the statutory 
crime of receiving deposits in an insolvent bank. At the 
trial certain schedules filed by them in a bankruptcy pro­
ceeding, as well as oral testimony of an expert accountant 
based upon an examination of their books, was admitted 
as evidence. The defendants’ contentions that such testi­
mony infringed their rights under the Federal Constitu­
tion were successively overruled by the state’s appellate 
courts, and an appeal to this court followed. Said the court:

“Article V of Amendments to the Federal 
Constitution is invoked, which provides (inter 
alia)—‘No person * * * shall be compelled in 
any criminal case to be a witness against himself.’
But, as has been often reiterated, this Amend­
ment is not obligatory upon the governments of
the several states or their judicial establishments,

»
and regulates the procedures of the Federal 
Courts only. (—citing cases—)



— 28—

“We are referred to a similar prohibition in 
Art. I, par. 9, of the Constitution of Pennsylvania; 
but, even if the trial of the plaintiffs in error 
proceeded in disregard of this provision, no Fed­
eral right was thereby infringed.”

In the case of Howard vs. Kentucky, 200 U. S. 164, 
this court quoted with approval a part of the opinion in 
In re Converse, 137 U. S. 624, 631, as follows (173) :

“State cannot be deemed guilty of a violation 
of its obligations under the Constitution of the 
United States because of a decision, even if er­
roneous, of its highest court, while acting within 
its jurisdiction.”
Summing up, then, under this phase of the case, the 

State of Mississippi submits:
First: There is no Federal constitutional

guaranty against compulsory self-incrimination.
And since there is no such guaranty under the 
Federal Constitution, a denial of that right by a 
state court would infringe no right of an accused 
under that document, and this court has no juris­
diction to review this judgment upon the asserted 
ground that the use of extorted confessions 
amounted to a denial of due process of law;

Second: The Mississippi Supreme Court
has held, by its decision that the proceedings at 
the trial of this case in the Circuit Court of Kem­
per County, Mississippi, infringed no right of the



- 2 9 -

prisoners under the Mississippi Constitution, and 
its decision in this respect cannot be reviewed by 
this Court;

Third: The State of Mississippi is free to
formulate and regulate its own forms or methods 
of procedure and practice; it has done so; the 
petitioners have been tried according to well- 
settled and established rules and regulations gov­
erning trials of criminal cases; there has been no 
arbitrary action which denies to them any funda­
mental rights or which conflicts with a single 
specific provision of the Federal Constitution; 
and, consequently, “due process of law,” as that 
clause is used in the Fourteenth Amendment, has 
been accorded them;

Fourth : If we assume that the trial court 
erred in its ruling admitting these confessions, 
such error would not have constituted a denial 
of due process of law under the Fourteenth 
Amendment to the Federal Constitution; and,

Fifth : The State of Mississippi cannot be
deemed guilty of a violation of its obligations 
under the Constitution of the United States be­
cause of a decision, even though erroneous, of its 
highest court, while acting within its jurisdiction.

POINT II.

THAT: PETITIONERS WERE DENIED DUE PROCESS 
OF LAW THROUGH DENIAL OF COUNSEL.



- 3 0 -

The record (5) recites that Hon. John A. Clark, De- 
Kalb, Mississippi; Hon. Joe H. Daws, DeKalb, Mississippi; 
Hon. D. P. Davis, DeKalb, Mississippi; and Hon. L. P. 
Spinks, DeKalb, Mississippi, appeared for the defendants.

On page 2 of the record now before the court appears 
the arraignment of the prisoners, which shows that at the 
time of arraignment they were “represented by legal 
counsel.”

In the cross-examination of Yank Ellington, one of 
the prisoners, at page 76 of the record, appears the fol­
lowing :

Q. Now, you plead guilty here yesterday?

A. Yes, sir.
Q. You were not any different yesterday 

from what you are now?
A. Yes, sir.
Q. You had two lawyers appointed for you?
A. Yes, sir.

Q. You came up here this morning and had 
two more?
A. Yes sir.

In the cross-examination of Ed Brown, another of 
the prisoners, at page 50 of the record, appears as follows:

Q. The court appointed lawyers for you 
yesterday afternoon?



— 81-

A. Yes, sir, but I told him I didn’t need none.

Q. You told the Court you didn’t think 
they would do any good ?

A. I told him I didn’t think they would do 
no good because the man whipped us and told us 
we better stand on what we said.

Q. You talked to your lawyers yesterday 
afternoon ?

A. In that room there, yes, sir.

Q. You talked to them again this morning?
A. Yes, sir.

And again at page 54 of the cross-examination of 
this same prisoner:

Q. The court gave you two lawyers yester­
day?

A. Yes, sir.
Q. And two more this morning?

A. Yes, sir.

Q. That makes four?
A. Yes, sir.

Outside of what incidentally appears from the ex­
cerpts set out above, the record is silent as to whether 
counsel who appeared for the prisoners at arraignment 
and at the trial were employed by them or appointed by 
the court. It is true that there are some additional mat­



— 32-

ters set up in what is captioned a “ Motion in Arrest of 
Judgment and for a New Trial,” but for reasons herein­
after set out, the State of Mississippi says that this court 
cannot refer to or be governed by these matters in the de­
cision of this case.

In the opinion of the Mississippi Supreme Court in 
response to a Suggestion of Error (the equivalent of a 
Motion for Rehearing) the court said: (R. 172)

“Much is said in the brief of counsel for the 
appellants in support of the suggestion of error 
to the effect that these appellants are negroes 
and ‘stood before the trial court as helpless to de­
fend themselves as sheep in a slaughter pen.’ In 
justice to the court below, we must say that this 
charge is not even remotely supported, by the rec­
ord. It is based probably on things stated in ex 
parte affidavits in support of the motion in ar­
rest of judgment which have no place in this dis­
cussion.

“Again they say that the court below failed 
‘to provide counsel, in reality to defend’ the ap­
pellants, and ‘surely it is cruel folly for the State 
to contend, in a court of justice, that these ne­
groes are to be bound by the strictest and most 
technical rules of practice and (pleading!—and 
this after their right to counsel has been effect­
ively denied.’ No request was made of the court to 
continue the case, to pass it to a later day, or to



grant the appellants any further time for the 
preparation of their case.

“The attorneys who defended the appellants 
in the court below are able lawyers of extensive 
practice—-veterans of many forensic conflicts; 
and the record does not disclose that they consci­
ously failed to discharge any duty they owed the 
appellants.”

From the part of the court’s opinion, quoted above, it 
will be seen that the court based its decision squarely upon 
the ground that since the question was not raised in the 
court below, there was nothing for it to review—in accord­
ance with the rules and regulations referred to in connec­
tion with argument on Point 1, supra.

In the leading case of Spies vs. Illinois, 123 U. S. 131, 
181, this court said:

“ * * * To give us jurisdiction under Sec.
709 of the Revised Statutes because of the de­
nial by a state court of any title, right, privilege 
or immunity claimed under the Constitution, or 
any treaty or statute of the United States, it must 
appear on the record that such title, right, priv­
ilege or immunity was ‘specially set up or claimed’ 
at the proper time in the proper way. To be re- 
viewable here the decision must be against the 
right so set up or claimed. (Italics by the court.)
As the Supreme Court of the State was reviewing 
the decision of the trial court, it must appear that



-34

the claim was made in that court, because the Su­
preme Court was only authorized to review the 
judgment for errors committed there, and we can 
do no more. This is not, as seems to be supposed 
by one of counsel for the petitioners, a question 
of waiver of a right under the Constitution, laws 
or treaties of the United States, but a question of 
claim. If the right was not set up or claimed in 
the proper court below, the judgment of the high­
est court of the state in the action is conclusive, 
so far as the right of review here is concerned.”

The foregoing quotation from the case of Spies vs. 
Illinois, 123 U. S. 131, is quoted with approval by the court 
in Jacobi vs. Alabama, 187 U. S. 133, 136. As sustaining 
the same proposition, the court cites the cases of Brooks vs. 
Missouri, 124 U. S. 394, and Baldwin vs. Kansas, 129 U. S. 
52.

In the case of Baldwin vs. Kansas, supra, the conten­
tion was that the jurors were not sworn according to the 
form of the oath prescribed by the state statute; that there­
fore it was not a legal jury; and that the judgment of the 
court on the verdict of such jury deprived accused of his 
life without due process of law. In discussing this “Fed­
eral” question, the court said:

“ * * * In the present case, the record does 
not show that, at the trial before the Jury, any 
title, right, privilege or immunity was specially 
set up or claimed. No objection was taken to the 
form of the oath at the trial, nor at the making of



— 35-

the motion for a new trial before the trial court, 
nor at the making of the motion for arrest of 
judgment in that court. The point was first sug­
gested in the Supreme Court of the State. That 
court, it appears, refused to consider the objec­
tion, on the ground that it was not taken at the 
trial,... For that reason, we, also cannot consider 
it.”—citing Spies vs. Illinois, 123 U. S. 131, 181.

As supporting the rule that when and where the high­
est court of a state declines to pass upon a question upon 
the ground that it was not presented in the lower court, this 
court will not review such ruling, see the following addi­
tional cases:

Miller vs. Texas, 153 U. S. 535;

Barrington vs. Missouri, 205 U. S. 483;

Corrigan vs. Buckley, 271 U. S. 323;

Brooks vs. Missouri, 124 U. S. 394;
Brown vs. Massachusetts, 144 U. S. 573;

Caldwell vs. Texas, 137 U. S. 692;
McNulty vs. California, 149 U. S. 645.

Under the foregoing decisions of this court, the State 
of Mississippi submits that since question here under con­
sideration was not raised in the trial court, and the State 
Supreme Court, the highest court of review in the State, 
has refused to consider it because of such fact, this court 
must likewise refuse to review this matter.



— 36

The prisoners rely exclusively upon the recent case of 
Powell vs. Alabama, 287 U. S. 45.

Hereinbefore, we have pointed out to the court every­
thing there is in the record properly before the court. Let 
us see, then, whether, on those instances, there is sufficient 
to entitle the prisoners to a review of this matter, under 
what is said in the Powell case, commonly known as the 
“Scottsboro Case.”

Picking up statements of the court in the opinion of 
the court in that case:

(49) “But no counsel had been employed, and 
aside from a statement made by the trial judge 
several days later during a colloquy immediately 
preceding the trial, the record does not disclose 
when, or under what circumstances, an appoint­
ment of counsel was made, or who was appoint­
ed.”

There were three grounds upon which the judgments 
were assailed, among them, No. 2, the one upon which the 
court reversed them. The court observed:

(50) “These questions were properly raised and 
saved in the courts belotv.”

(53) “It is hardly necessary to say that, the 
right to counsel being conceded, a defendant 
should be afforded a fair opportunity to secure 
counsel of his own choice. Not only was that not



— 37-

done here, but such designation of counsel as 
was attempted was either so indefinite or so close 
upon the trial as to amount to a denial of effec­
tive and substantial aid in that regard. This 
(said the court) will be amply demonstrated by 
a brief review of the record.”

The court then quotes the trial court as having said:

(53) “The court: I appointed all the members
of the bar for the purpose of arraigning the de­
fendants and then of course I anticipated them to 
continue to help them if no counsel appears.”

The foregoing arrangement was the only one which 
had been made at the time the case was called for trial, 
and the state had announced ready for trial.

(56) “Whether they (attorneys appointed for 
the purpose of arraignment) would represent 
the defendants thereafter if no counsel appeared 
in their behalf, was a matter of speculation only, 
or, as the judge indicated, of mere anticipation 
on the part of the court.”

When Mr. Roddy, an out-of-state lawyer, unfamiliar 
with the procedure of the Alabama Courts, made his ap­
pearance and stated that he wanted to assist whoever the 
court appointed, it seems that the trial court let it be un­
derstood that if he appeared for them, he would make 
no appointment. Finally, Mr. Moody, a local lawyer, vol­
unteered to assist Mr. Roddy, and, said the court:



(57) “With this dubious understanding, the 
trials immediately proceeded.”

(71) “All that is necessary now to decide, as 
ive do decide (italics mine) is that in a capital 
case, where the defendant is unable to employ 
counsel, and is incapable adequately of making 
his own defense because of ignorance, feeblemind­
edness, illiteracy, or the like, it is the duty of the 
court, whether requested or not, to assign coun­
sel for him as a necessary requisite of due process 
of law; and that duty is not discharged by an as­
signment at such a time or under such circum­
stances as to preclude the giving of effective aid 
in the preparation and trial of the case.”

As will be noted above, this court was careful to state 
that “These questions were properly raised and saved in 
the courts below.” That certainly cannot be said with ref­
erence to the case at bar. No “federal question” was ever 
hinted or raised until after the Supreme Court had de­
cided the case on its merits, and this on a “Suggestion of 
Error.” In its decision, the court did not decide what 
would have been the result if the matter had been prop­
erly raised in the trial court, but denied it upon the sole 
ground that it was not raised below, and consequently was 
not subject to review by it. And since it has done so on 
this one ground, this court cannot now review it.

This court has held that if the state court entertains 
a motion for rehearing (Suggestion of Error) in which



—39—

a Federal question, for the first time in the proceedings, 
is raised, and proceeds to pass upon the Federal question 
thus raised, it has been held that the question of Federal 
right has been raised in time to sustain the appellate juris­
diction of the Federal Court to review the judgment of 
the state court, although the general rule is that it is too 
late on a motion for rehearing to inject a Federal question 
into a case. The view is sustained by the following cases:

McKay vs. Kalyton, 204 U. S. 458;

Sullivan vs. Texas, 207 U. S. 416;

Disconto Gesellschaft vs. Umbrecht, 208 U. S. 570;

Illinois Central R. Co. vs. Kentucky, 218 U. S. 551.;

Kentucky Union Co. vs. Kentucky, 219 U. S. 140;

Grannis vs. Ordean, 234 U. S. 385.

But in this case, the Mississippi Court has not passed 
upon the Federal question thus raised on the Suggestion 
of Error, but has declined to consider it because not raised 
in the trial court, and consequently the general rule must 
prevail—namely, that the “Federal” question comes too 
late when first presented on a motion for rehearing, and 
the state court does not consider it as such.

And in this connection, what was said by this court 
in Bonner vs. Gorman 213 U. S. 86, 91, is important:

“ * * * Where a Federal question is raised on a
second appeal and the state court refuses to



-40—

consider it, it comes too late. Union Mutual Life 
Insurance Company vs. Kirchoff, 169 U. S. 103,
110. And see Sayward vs. Denny, 158 U. S.
180; Mut. L. Ins. Co. vs. McGrew, 188 U. S. 291,
308. Moreover, ‘according to the well-settled doc­
trine of this court with regard to cases coming 
from state courts, unless a decision upon a Fed­
eral question was necessary to the judgment or 
in fact teas made the ground of it, the writ of er­
ror must be dismissed.’ Arkansas Southern Rail­
road Company vs. German National Bank, 207 
U. S. 270; California Powder Works vs. Davis,
151 U. S. 389; St. L. I. M. & S. Ry. Co. vs Taylor,
210 U. S. 281.”

Also, what was said in Corrigan vs. Buckley, 271 U. S.
S23, 329, seems to be important in this connection:

“The mere assertion that the case is one in­
volving the construction or application of the 
Constitution, and in which the construction of 
federal laws is drawn in question, does not, how­
ever, authorize this court to entertain the appeal, 
and it is our duty to decline jurisdiction if the 
record does not present such a constitutional or 
statutory question substantial in character and 
properly raised below. Sugarman vs. United 
States, 249 U. S. 182, 184; Zucht vs. King, 260 
U. S. 174, 176. And under well settled rules, 
jurisdiction is wanting if such questions are so 
unsubstantial as to be plainly without color of



—41

merit and frivolous. Wilson vs. North Carolina,
169 U. S. 586, 595; Delmar Jockey Club vs. Mis­
souri, 210 U. S. 324, 335; Binderup vs. Pathe Ex­
change, 263 U. S. 291, 305; Moore vs. New York 
Cotton Exchange, 270 U. S. 593.”

And, in Sugarman vs. United States, 249 U. S'. 182, 
cited in the Corrigan case, supra:

“But mere reference to a provision of the 
Federal Constitution, or the mere assertion of a 
claim under it, does not authorize this court to re­
view a criminal proceeding; and it is our duty 
to decline jurisdiction unless the writ of error 
presents a constitutional question, substantial in 
character, and properly raised below.”—citing 
some six cases to sustain the ruling.

But aside from all this, counsel who represented these 
petitioners at the trial made numerous and specific objec­
tions throughout the trial, as reflected by the record. The 
only defense these petitioners could have possibly had was 
an alibi—and this defense was put forward with com­
pleteness by them and by those who might be in a posi­
tion to know their movements at the time of night this 
homicide was committed. They made the character of the 
confessions a jury question, under instructions which they 
procured the court to give. It is well enough here to ob­
serve that in the State of Mississippi, the trial court is de­
nied the right, by statute, to intruct the jury except as it 
may be requested in writing by one of the parties. Sec.



42-

586, Mississippi Code of 1930. And the State Supreme 
Court has construed this statute in such a way as that if 
a trial judge orally instructs the jury, or gives an unre­
quested instruction, the statute is violated and the adverse 
party is entitled to a reversal.

Counsel tried this case with the lights before them, 
so far as this record reveals. They asked for no additional 
time and from the record it seems that further time was 
unnecessary, and were satisfied with the whole proceed­
ing until after the Supreme Court affirmed the lower 
court’s judgment. If a tactical mistake or blunder is suf­
ficient to work a denial of due process of law, then the 
respondent submits that a premium is placed upon trick­
ery, ignorance and inability, and instead of working toward 
perfection in the profession, the untrained and unskilled 
licensee would be the rule rather than the exception among 
the leaders at the bar. We do not believe that this Court 
will sanction any such rule, but it is our humble belief that 
this will result if what this record shows is sufficient to 
work a reversal of this conviction.

The judgment of the Supreme Court of Mississippi 
affirming the judgment of the Circuit Court of Kemper 
County, Mississippi, was entered on January 7, 1935. (R. 
137). On January 15th, 1935, the appellants filed their 
motion with the Supreme Court praying for an additional 
fifteen days within which to file a Suggestion of Error, 
and this motion was sustained (R. 138). On February 5, 
1935, there was filed in the Mississippi Supreme Court a 
document entitled “Motion in Arrest of Judgment and for



—43—

New Trial” (R. 141). Attached to this “Motion” was the 
ex parte affidavit of John A. Clark, of counsel for appel­
lants in the trial court (R. 146 et seq. and the ex parte af­
fidavits of the three appellants, Yank Ellington, (R. 149), 
Ed Brown (R. 153), and Henry Shields (R. 157).

The Mississippi Supreme Court, in passing on the 
Suggestion of Error, refers to this “Motion in Arrest of 
Judgment and For New Trial” in the following words (R. 
172) :

“The appellants have filed what they desig­
nate as a motion in arrest of judgment, wherein 
they set forth matters said to have occurred on 
the trial which do not appear in the record. A 
motion in arrest of judgment will not lie in the 
supreme court. It reviews only the rulings of 
the court below complained of in an assignment 
of error, and in so doing is confined to an exami­
nation of the record made in the court below. It 
is not a court of original jurisdiction, but of ap­
pellate jurisdiction only, and therefore we cannot 
here examine or consider the allegations in the 
motion for arrest of judgment, nor the affidavits 
filed in support thereof.”

This observation of the court is in strict conformity 
with the rules theretofore laid down by it. Not only will 
a motion in arrest of judgment not lie in the Supreme 
Court, but its purpose “ is to search the record for errors 
made, not to make another and different record.”



44-

State v. Joyner, 148 Miss. 560, 114 So. 340.

The proper way to bring matters before the court 
which do not appear of record is by special bill of excep­
tions which is provided by statutes. This is distinctly pro­
vided by Sections 588, 589 and 590 of the Mississippi Code 
of 1930. These sections are discussed in a decision of the 
Mississippi court, and although at the time of the decision 
the 1930 code was not in existence, these statutes were 
brought forward without change from the former codes. 
The decision just referred to is that of Fairley v. State, 
152 Miss. 656, 120 So. 747. In that case the court said:

“The appellant also complains of certain 
language alleged to have been used by the district 
attorney in the closing argument to the jury, but 
this assignment is not properly presented by this 
record. The record discloses that counsel for 
the appellant tendered to the trial judge a special 
bill of exceptions embodying the alleged objec­
tionable language, but the judge refused to sign 
this bill of exceptions. Counsel for appellant then 
made and filed an affidavit setting forth his ver­
sion of the language and the incidents attempted 
to be incorporated in the special bill of exceptions, 
and this affidavit and the form of the bill of ex­
ceptions that was tendered the trial judge are 
sent up with the record of this cause.

“Section 796, Code of 1906, (section 594, 
Hemingway’s 1927 Code), provides that bills of



—45-

exceptions to any ruling of the court, made be­
fore the jury retires from the box, must be ten­
dered and filed during the trial, or during the 
term of court; while section 798, Code of 1906 
(section 600, Hemingway’s 1927 Code), provides 
that, ‘if the judge shall refuse to sign a bill of 
exceptions to an opinion, decision, or charge giv­
en or made on the trial of any cause or motion, 
when the bill of exceptions is tendered to him, it 
shall be lawful for two attorneys at law who may 
be present at the time of the giving or making of 
such opinion, decision, or charge, and of the re­
fusal of the judge to sign such bill of exceptions, 
to sign the same; and the bill of exceptions so 
signed shall have the same force and effect as if 
it had been signed by the judge,’ and it has been 
held that the latter statute provides the only rem­
edy where the judge refuses to sign such a bill of 
exceptions. The purported special bill of ex­
ceptions, therefore, never became a part of the 
record, and we can only consider matters which 
are properly a part of the record before us. If, 
as stated by counsel for appellant, circumstances 
made it impossible to secure the signature of two 
attorneys to the bill of exceptions, we are unable 
to aid him, in the absence of statutory authority 
so to do.”

And along same line and to the same effect, see:

Pittman v. State, 155 Miss. 745, 124 So. 761.



— 48—

Crane v. State, 157 Miss. 548, 128 So. 529.

Included in the “Motion in Arrest of Judgment” was 
a motion for a new trial. Such motions lie only in the 
trial court, and must be made prior to adjournment. They 
do not lie in the Supreme Court.

Pittman v. State, 147 Miss., 593, 113 So. 348;
Carter v. State, 147 Miss. 171, 113 So. 177;
Carraway v. State, 167 Miss. 390, 148 So. 340.

The filing of this pretended “Motion in Arrest of 
Judgment and For New Trial” constitutes a palpable and 
deliberate, though abortive, attempt on the part of counsel 
to bring, by way of ex parte affidavits, the case within the 
decision of this court in Poioell v. Alabama, 297 U. S. 45, 
supra. It has absolutely no place in Mississippi proced­
ure. The Mississippi Supreme Court refused to consider 
it because it was not properly a part of the record of the 
trial, and since that court could not consider it, neither can 
this court, as expressly held in Spies v. Illinois, 123 U. S. 
131, 181, where it was held:

“ . . As the Supreme Court of the State 
was reviewing the decision of the trial court, it 
must appear that the claim was made in that 
court, because the Supreme Court was only au­
thorized to review the judgment for errors com­
mitted there, and we can do no more.”

In conclusion upon this point, the State of Mississippi 
sumbits that since this alleged denial of counsel was not



47 -

specially set up or claimed in the court below, and the 
Mississippi Court refused to review this alleged Federal 
question for the reason that it was not set up or claimed 
in the trial court, this court can do no more than the State 
Supreme Court, and decline to review this matter. To 
give this court jurisdiction, the matter must have been 
specially set up and claimed in the trial court, and obvious­
ly, this has not been done.

POINT III.

THAT: PETITIONERS WERE DENIED DUE PROCESS 
OF LAW, IN THAT THE TRIAL COURT POSSESSED

NO JURISDICTION TO ENTER JUDGMENT.

It is said that by reason of the fraud of state agents, 
(covered by Point I) and denial of counsel (covered by 
Point II), the state court was ousted of its jurisdiction and 
consequently could not enter a valid enforceable judgment.

In other words, did the use of “extorted” confessions 
and the appointment of counsel, under the circumstances 
reflected by the record, oust the court of its jurisdiction to 
enter judgment against these petitioners?

In Felts v. Murphy, 201 U. S. 123, the situation con­
fronting the court was as follows: One who was almost 
totally deaf was tried, convicted and sentenced to life im­
prisonment in a state court on a charge of murder. On 
habeas corpus proceedings in a Federal District Court, the 
validity of the judgment was brought into question, it be­
ing insisted that, because of the failure of the trial court 
to see to it that the prisoner heard and understood the testi-



— 4 8 —

mony at the trial, the state court was ousted of its juris­
diction and, therefore, its judgment was void. Said the 
court, in addressing itself to this contention:

(129) “In this case the state court had jurisdic­
tion both of the subject matter and of the per­
son upon the trial of the accused, and such juris­
diction was not lost during his trial but continued 
to its end, and it had jurisdiction to direct the 
judgment which was entered and to have the same 
executed. If there were any irregularities in the 
trial of appellant, because of the failure of the 
court to see to it that the testimony in the case 
was repeated to him through the ear trumpet 
which he had with him, it was at most an error, 
which did not take away from the court its juris­
diction over the subject matter and over the per­
son of the accused. The appellant was not de­
prived of his liberty without due process of law 
by the manner in which he was tried, so as to 
violate the provisions of the Fourteenth Amend­
ment to the Federal Constitution. That Amend­
ment, it has been said by this court, ‘did not rad­
ically change the whole theory of the relations of 
the state and Federal Governments to each other 
and of both governments to the people’. In re 
Kemmler, 136 U. S. 436, 448; Brown v. New Jer­
sey, 175 U. S. 172, 175.

“We are unable to see how jurisdiction was 
lost in this case by the manner of the trial. The



■ 4 9 -

accused was compos mentis. No claim to the 
contrary is made. He knew he was being tried, 
on account of the killing of the deceased. He 
had counsel and understood the fact that he was 
on trial on the indictment mentioned, but did not 
hear the evidence. He made no objection, asked 
for nothing, and permitted his counsel to take his 
own course. We see no loss of jurisdiction in 
all this and no absence of due process of law. It 
is to be regretted that the testimony was not read 
or repeated to him. But that omission did not 
affect the jurisdiction of the court.

. . . and the most that can be urged is
that there might have been an error committed by 
the trial court in omitting to have the evidence 
repeated to the appellant as it was given by the 
witnesses at the trial, even though no demand of 
the kind was made by petitioner or his counsel.”

The case of McMicking v. Shields, 238 U. S. 99, in­
volved an appeal from a judgment of the Supreme Court of 
the Philippine Islands, discharging appellee from custody 
on a judgment entered by the Court of First Instance, at 
Manila, on a charge of theft, on a writ of habeas corpus. 
The court stated the facts, in substance, set up in the peti­
tion. Among them, it appears that:

(102 “When the case was called at 10 A. M. on 
December 24th, and while the petitioner was ar­
raigned, he asked for time in which to answer the 
complaint, which request was denied by the



-5 0 -

court, who ordered the clerk to enter on the rec­
ord that the petitioner pleaded ‘Not Guilty’ to the 
complaint. Thereupon the prisoner’s attorney 
also asked for time in which to prepare a defense, 
which petition was also denied by the same court, 
to which ruling the petitioner’s attorney excepted 
and asked that the exception, together with the 
requests of the petitioner which had been denied, 
be entered on the record.”

The Supreme Court of the Philippine Islands held the 
judgment under which he was held void on the ground that 
by refusing the requests of him and his counsel, he was de­
nied due process of law and the court was ousted of its 
jurisdiction to enter judgment against him.

This court, in addressing itself to the conclusion 
reached by the insular court, said:

“We are unable to agree with the conclu­
sion of the Supreme Court that the judgment 
pronounced by the Court of First Instance was 
void and without effect. Under the circum­
stances disclosed, denial of the request for time 
to answer and to prepare defense was at most 
matter of error which did not vitiate the entire 
proceedings.”

The case of Frank v. Mangwm 237 U. S. 309 (334,
335, 336, 337) likewise holds that a denial of due process 
of law does not necessarily oust a trial court of its jurisdic-



— 5 1 —

tion, and that such a denial is an error subject to the cor­
rective processes of the state courts.

In the Matter of Moran, 203 U. S. 96, it appears that 
Moran was tried and convicted in a United States District 
Court on a charge of murder. He petitioned for writ 
of habeas corpus and a writ of certiorari in this court. The 
case was heard on petition and answer. The various 
grounds upon which the petition was supported were alleg­
ed to go to the jurisdiction of the court. Said the court, 
after disposing of four other grounds:

(105) “Finally, it is contended that the peti­
tioner was compelled to be a witness against him­
self, contrary to the Fifth Amendment, because 
he was compelled to stand up and walk before the 
jury, and because, during a recess, the jury was 
stationed so as to observe his size and walk. If 
this was error, as to which we express no opin­
ion, it did not go to the jurisdiction of the court.
Felts v. Murphy, 201 U. S. 123.”

Thus it will be seen that an infringement or denial of 
a constitutional right does not oust the court of its juris­
diction. It is at most a mere error, to be corrected by ap­
peal.

Jurisdiction is the main element inquired into in 
habeas corpus proceedings. By referring to decisions of 
this court, it will be seen readily that a denial of due pro­
cess does not oust a state court of its jurisdiction to enter an



— 52—

enforceable judgment. As illustrating this proposition, 
see:

Andrews v. Sivartz, 156 U. S. 272;

Markuson v. Boucher, 175 U. S. 184;

Urquhart v. Brown, 205 U. S. 179;
Reid v. Jones, 187 U. S. 153;
Knewel v. Egan, 268 U. S. 442.

If a trial court were ousted of its jurisdiction merely 
because some ruling might amount to a denial of due pro­
cess, or a denial of some constitutional right, and its judg­
ment consequently void, an accused could resort to habeas 
corpus to effect his release. However, it seems that the 
cases just cited hold that a denial of due process does not 
avoid a judgment of a trial court, so as to make its judg­
ment reviewable by habeas corpus. Habeas corpus can­
not be substituted for a direct review.

And now, while it is our contention that the matters 
discussed under Points I and II of this brief have not work­
ed a denial of due process of law, nevertheless, if we should 
concede for the purpose of this argument that either one or 
both would wTork such denial, such denial would not have 
the effect of ousting the court of its jurisdiction to enter 
judgment in this case. And this is the conclusion pointed 
to by the decisions set out under this division of the brief.

Upon this proposition, petitioners cite and rely on In 
Re Neilsen, 131 U. S. 176. This case was mentioned by 
this court in its decision of Felts v. Murphy, 201 U. S. 123, 
130, and the substance of that decision stated thus:



•53—

“The sentence imposed in that case was held 
by this court to have been beyond the jurisdiction 
of the trial court to pronounce, because it was 
against the express provisions of the Constitu­
tion, which bounds and limits all jurisdiction” .

Obviously, this case can have no application to the 
point presented here. No complaint is made that the trial 
court or the supreme court of Mississippi had no jurisdic­
tion either as to the person or as to the crime. The sent­
ence imposed did not exceed the limits fixed by law, and no 
complaint is made on this ground. The only thing insisted 
is that there has been a denial of due process of law and 
consequent loss of jurisdiction; but, obviously, under the 
decisions of this court, jurisdiction can not be lost on such 
denial.

POINT IV.

THAT: PETITIONERS WERE DENIED DUE PROCESS 
OF LAW, IN THAT THEY WERE DENIED EQUAL 

PROTECTION OF THE LAW.

This assignment of error is based upon the theory that 
the petitioners were denied the right to make a motion for 
a new trial in the Circuit Court of Kemper County, Missis­
sippi. In the brief of petitioners it is said that they filed 
a Motion for a New Trial and in Arrest of Judgment in 
the Supreme Court of Mississippi, on the theory that no 
opportunity had been afforded for filing same in the low­
er court. And they said, further: “Had the opportunity 
been afforded, and had counsel appointed by the court tak­



— 54—

en advantage thereof, the technicality on which the Su­
preme Court relied in affirming the case, on original ap­
peal, would probably have been swept away.”

In Duncan v. Missouri, 152 U. S. 377, 382, it was said 
that equal protection of the law is afforded when

“ . . . the laws operate on all alike and do
not subject the individual to an arbitrary exercise 
of the powers of the government.”

and in Leeper v. Texas, 139 U. S. 462, 468, this court said:

“ . . . that law in its regular course of ad­
ministration through courts of justice is due pro­
cess, and when secured by the law of the State the 
constitutional requirement is satisfied.”

In In Re Converse, 137 U. S. 624, 631, it was said by 
this court:

“We repeat, as has been so often said before, 
that the Fourteenth Amendment undoubtedly for­
bids any arbitrary deprivation of life, liberty, or 
property, and in the administration of criminal 
justice requires that no different or higher pun­
ishment shall be imposed on one than is imposed 
on all for like offenses, but it was not designed to 
interfere with the power of the State to protect 
the lives, liberty and property of its citizens; nor 
with the exercise of that power in the adjudica-



— 55—

tions of the courts of a State in administering the 
process provided by the law of a State.”

In Allen v. Georgia, 166 U. S. 138, 140, the court said:

“ . . . Without attempting to define exact­
ly in what due process of law consists, it is suffi­
cient to say that, if the Supreme Court of a State 
has acted in consonance with the constitutional 
laws of a State and its own procedure, it could 
only be in exceptional circumstances that this 
court would feel justified in saying that there had 
been a failure of due legal process.”

In Frank v. Mangum, 237 U. S. 309, 326, it was said:

“As to the ‘due process of law’ that is requir­
ed by the Fourteenth Amendment, it is perfectly 
well settled that a criminal prosecution in the 
courts of a state, based upon a law not in itself re­
pugnant to the Federal Constitution, and conduct­
ed according to the settled course of judicial pro­
ceedings as established by the law of the state, so 
long as it includes notice, and a hearing, or an 
opportunity to be heard, before a court of compe­
tent jurisdiction, according to established modes 
of procedure, is ‘due process’ in the constitution­
al sense” ,—citing several cases supporting the 
rule.

So far as the “Motion in Arrest of Judgment and for 
New Trial” together with the affidavits attached thereto



are concerned, this court, as pointed out under Point II 
hereof, cannot consider such matters. No motion for a 
new trial was filed in the trial court, nor is there anything 
in the record to indicate that court adjourned even in the 
face of a request for time within which to file such a mo­
tion for new trial.

Under Mississippi procedure, a motion for new trial 
must be filed in the trial court. This is necessarily so 
because the Supreme Court is a court of review, while a 
motion for new trial, particularly the matters referred to 
in the “Motion in Arrest of Judgment and for New Trial”, 
involve issues of fact where proof would be necessary. 
Under our procedure a motion is at issue without any 
formal pleading.

Young v. State, 150 Miss. 787, 117 So. 119;

Reed v. State, 143 Miss. 686, 109 So. 715.

And the averments of a motion are not proof thereof, and 
the burden is on the movant to establish them.

Tatum v. State, 171 Miss. 336, 157 So. 892.

In Pittman v. State, 147 Miss. 593, 113 So. 348, the 
Mississippi Court held, with reference to the action of a 
trial judge on a motion for new trial after the term at 
which a judgment was entered had expired:

“When the term of court was finally ad­
journed, the appellant’s right to file a motion for
a new trial ended, and any action of the trial

- 5 6 -



- 5 7 -

judge in reference to such a motion, which was 
filed after the adjournment of the term, was of 
no effect, and is not properly a part of this rec­
ord.”

The court further said, in this same case:

“The verdict in this case was returned into 
court in the presence of able associate counsel for 
the appellant, and the record does not show that 
counsel requested any delay in order to enable 
them to present a motion for a new trial or in any 
way indicated to the court that they desired to 
present any such motion, and this being true, the 
appellant cannot now complain that the court ad­
journed the term when it had completed all bus­
iness before it.”

Along the same line is the case of Carter v. State, 147 
Miss. 171, 113 So. 177, where the record did not show that 
any oral proof was offered to substantiate any of the
grounds set up in the motion for new trial.

As part and parcel of this motion for new trial which 
was filed in the Mississippi Supreme Court was the motion 
in arrest of judgment, which, as herein before pointed out, 
will likewise not lie in that court.

In disposing of this “Motion in Arrest of Judgment 
and for New Trial” filed in the Supreme Court, these peti­
tioners have been treated exactly the same as all others 
similarly situated, and in accordance with the well estab-



— 58-

lished modes of procedure legislatively and judicially de­
clared. And under the decisions of this court which are 
set out at the beginning of the discussion under this Point 
IV, the State of Mississippi submits that in so doing it has 
not denied to them the equal protection of the laws of the 
state, and that this court should now say, as it did in In Re 
Converse, 137 U. S. 624, 631:

“ . . . . Appellant has been subjected, as 
all persons within the State of Michigan are, to 
the law in its regular course of adminstration 
through courts of justice, and it is impossible to 
hold that a judgment so arrived at is such an un­
restrained and arbitrary exercise of power as to 
be utterly void.”

POINT V.

THAT: THE DECISION OF THE SUPREME COURT 
OF MISSISSIPPI IS, ITSELF, A DENIAL OF DUE 

PROCESS OF LAW.

Upon this point, the petitioners base their argument 
upon the proposition that the Mississippi Court, by hold­
ing that they had “waived” their right to object to these 
“extorted” confessions, denied them due process of law; 
and it is argued that they could not waive their “funda­
mental rights.”

Before going any further into this discussion it is 
well enough to determine this question of “waiver” . In 
the case of Spies v. Illinois, 123 U. S. 131, 181, it was said,



in connection with an argument on the use of a letter which 
it was claimed was illegally obtained and used in the prose­
cution :

“Even if the court was wrong in saying that 
it did not appear that the Most letter was one of 
the papers illegally seized, it still remains uncon­
tradicted that objection was not made in the trial 
court to its admission on that account. To give 
us jurisdiction under Sec. 709 of the Revised 
Statutes because of the denial by a State court of 
any title, right, privilege or immunity claimed 
under the Constitution, or any treaty or statute 
of the United States, it must appear on the rec­
ord that such title, right, privilege or immun­
ity was ‘specially set up or claimed’ at the proper 
time in the proper way. To be reviewable here 
the decision must be against the right so set up or 
claimed. As the Supreme Court of the State was 
reviewing the decision of the trial court, it must 
appear that the claim was made in that court, be­
cause the Supreme Court was only authorized to 
review the judgment for errors committed there, 
and we can do no more. This is not, as seems to be 
supposed by one of counsel for the petitioners, a 
question of a waiver of a right under the Consti­
tution, laws or treaties of United States, but a 
question of claim. If the right was not set up or 
claimed in the proper court below, the judgment 
of the highest court of the State in the action is 
conclusive, so far as the right of review here is



- 6 0 -

concerned. The question whether the letter, if 
obtained in the manner alleged, would have been 
competent evidence is not before us, and, there­
fore no foundation is laid under this objection for 
the exercise of our jurisdiction.”

In other words, under the decision in the Spies case, 
supra, the “doctrine of waiver” , referred to by counsel, has 
no application to the case at bar. It was not strictly a 
waiver, but a failure to claim. Under the Federal Con­
stitution, one has the right to remain silent and refuse to 
testify if he so desires. If he goes upon the witness stand 
and does testify, however, he is not, under the decision re­
ferred to, said to have “waived” his right, but has merely 
failed to “claim” such right. Certain evidence may be 
said, as a matter of law, to be incompetent; the party 
against whom it is sought to be used has the privilege of 
objecting to it; but for one reason or another he has no 
objection to it, and fails to make objection to it. In this 
instance, the “doctrine of waiver” has no application to his 
decision, but it is a mere “ failure to claim” . And if he 
fails to “claim” his right to object to evidence, he has no 
right to allege in a court of review that the trial court 
erred in allowing such evidence to go to the jury. It seems 
to the writer that instead of the “doctrine of waiver” be­
ing involved, it is strictly the “doctrine of election” , and 
one should be held to his election in a court of review. 
This is the rule in Mississippi, as pointed out in connection 
with the argument on Point I.

In disposing of this matter, the Mississippi Supreme 
Court has travelled the well established and clearly defined



•61—

'pathway of appellate court procedure, and has invoked no 
unusual or arbitrary rule applicable to none others but 
these. Under the decisions of this court, from the be­
ginning down to the present time, due process and equal 
‘protection of the law has been accorded them.

On this point, petitioners quote from Hopt v. Utah, 110 
U. S. 574, 579. This case has been discussed in later de­
cisions of this court, so that, while it held that a defendant 
could not “waive” his right to be present at his trial and 
every part of it, it has been expressly limited. For in­
stance, in the case of Frank r. Mangum, 237 U. S. 309, 
this court said:

“ . . . In Hopt v. Utah, 110 U. S. 574, 578, 
(principally relied on), the court had under re­
view a conviction in a territorial court after a 
trial subject to the local code of criminal proced­
ure, which declared: If ‘the indictment is for a 
'felony, the defendant must he (italics by the 
‘court) personally present at the trial.’ The 
judgment was reversed because of the action of 
the trial court in permitting certain challenges to 
jurors, based upon the ground of bias, to be tried 
out of the presence of the court, the defendant, 
and his counsel. The ground of the decision of 
this court was the violation of the plain mandate 
of the local statute; and the power of the accused 
or his counsel to dispense with the requirements 
as to his personal presence was denied on the 
ground that his life could not be lawfully taken



— 62—

except in the mode prescribed by law. No other 
question was involved. See Diaz v. United 
States, 223 U. S. 442, 455, 458.”

This limitation of the court of the Hopt case, supra, 
was recognized in the case of Snyder v. Massachusetts, 291 
U. S. 97, 106, and approved.

Under this division of the brief for petitioners as well 
as under Point 1, this whole proceeding is assumed to be 
thoroughly impregnated and tainted with fraud, and they
invoke the principle laid down in Mooney v. Holohan, (U. 
S.) 79 Law Ed. 347, to the effect that

“ . . . if a state has contrived a conviction 
through the pretence of a trial which in truth is 
but used as a means of depriving a defendant of 
liberty through a deliberate deception of court 
and jury by the presentation of testimony known 
to be perjured.”

the requirement of due process of law, as provided by the 
Fourteenth Amendment, is not satisfied.

The Mississippi Court, in passing upon this contention
(R. 170), said:

“Mooney v. Holohan, L. ed. Adv. Opinion,
Vol. 79, p. 347, is cited and relied on by the appel­
lants but its relevancy here is not apparent. 
There the charge was that Mooney was convicted 
on perjury evidence, known to be such by the 
prosecuting officer, who suppressed evidence, un-



— 63—

known to Mooney, in impeachment thereof. No 
charge either of perjury or the suppression of evi­
dence is here made. On the contrary, all of the 
facts as to the confessions being coerced were 
known to the appellants when they were offered 
and were provable by their own personal testi­
mony.”

To assume that there was fraud in this case is to do 
violence to all the rules of law relating to “fraud” . Since 
fraud vitiates everything it enters into, it is never assumed 
or presumed, but the showing of fraud must be clear and 
convincing. To presume fraud here, we would further 
have to presume that the prosecuting attorney was a party 
to a “deliberate deception of court and jury” , and certainly 
there is nothing upon which this charge may be based.

This court judicially knows that where confessions 
are used in evidence at trials, there is hardly any exception 
to the rule that evidence to show the involuntary character 
of them is brought to the attention of the court. The books 
are in complete accord upon the proposition that the com­
petency of confessions is a matter for the trial court to 
pass upon. And if a prosecuting attorney is to be faced 
with the dangerous necessity of offering only an air-tight 
voluntary confession or be guilty of consummating a legal 
fraud, then we say that the rule just stated, that the trial 
judge passes first upon the competency of confessions, has 
been thrown to the winds.

There is no hint of perjury in the record before this 
court. To the contrary these appellants admit that they



— 64—

said just exactly what the state witnesses say they did. No 
testimony was concealed from them. They knew better 
than anyone else, perhaps, just exactly what did happen, 
and they admit that the true circumstances are before the 
court. We are not here dealing with three innocent men, 
but three guilty ones, as clearly appears from their own 
cross-examinations. Not only this, but on the very day 
of the trial, two of them voluntarily called the Sheriff of 
the County aside and told him that they had told him th-e 
truth when they were in the Lauderdale County jail. Where 
is there any fraud ? any deliberate deception ?

And in determining this question, let the Court keep 
in mind that force and intimidation was not resorted to to 
secure the confessions which were used at the trial. Coun­
sel for petitioners leaves the impression in his brief that 
the confessions which were used were the direct result of 
beatings administered by those who testified with refer­
ence to the confessions, but the record does not bear him 
out on that ground. He further assumes that the wrong­
ful influence used in obtaining the initial confessions still 
obtained when the later confessions were given. The pe­
titioners’ own testimony on cross-examination negatives 
any charge of force, threats, intimidation and the like, and 
not only shows that there was no abuse, ill-treatment or 
other form of coercion indulged in at that time, but on the 
other hand they say that they were kindly treated at this 
latter interview. Their only explanation is that they were 
“scared” , and their version of the circumstances surround­
ing this latter interview with Sheriff Adcock shows that 
they were not “scared” , but, that as they told the Sheriff



— 65

at the time of the trial, they told him the truth about what 
happened on the night of this brutal murder.

CONCLUSION.

So far as the use of the confessions in this case is con­
cerned, respondent says that there is no right, privilege or 
immunity guaranteed under the Federal Constitution 
against self-incrimination which is infringed by the use 
of extorted (assuming that these confessions were extort­
ed) confessions in the trial of a criminal case in a state 
court. We have shown where the Mississippi Supreme 
Court has affirmed this conviction by following the well- 
established rules of procedure, and that no unusual or ar­
bitrary procedure has been resorted to in so doing:

That, so far as the alleged denial of counsel is concern­
ed, that matter has been settled by the decision of the Mis­
sissippi Supreme Court upon the ground that no complaint 
thereof was registered before or during the trial; that 
there was nothing to review; and consequently there is 
nothing for this court to review;

That the Circuit Court of Kemper County, Mississippi, 
had jurisdiction of both the person and the offense in this 
case and nothing it did or failed to do ousted it of its juris­
diction; and the Mississippi Supreme Court likewise was 
never ousted of its jurisdiction to enter a valid judgment;

That the case, from beginning to end, has been tried 
under the usual rules of procedure and practice, and, as 
said by the Mississippi Supreme Court (R. 172) :



— 66 —

“The rules of procedure here applied are 
technical only in the sense that all such rules are, 
and what the appellants request is simply that 
they be excepted from the procedure heretofore 
uniformly applied to all litigants.”

That there has been no denial of due process of law 
within the meaning of that phrase as used in the Federal 
Constitution, and no denial or infringement of any other 
right guaranteed by that Constitution; and that an affirm­
ance of this judgment would be proper under the previous 
pronouncements of this court.

Respectfully submitted,
GREEK L. RICE, Attorney General

WILLIAM DOW CONN, JR., and
WILLIAM H. MAYNARD, Assistant 

Attorneys General.

Counsel for Respondent.

CERTIFICATE

I, William Dow Conn, Jr., Assistant Attorney General 
of the State of Mississippi, of counsel for respondent, here­
by certify that I have this day served opposing counsel 
with copies of this brief.

This the day of January, 1936.



6 7 -

APPENDIX

MISSISSIPPI CONSTITUTION.

Sec. 26. In all criminal prosecutions the accused shall 
have a right to be heard by himself or counsel, or both, to 
demand the nature and cause of the accusation, to be con­
fronted by the witnesses against him, to have compulsory 
process for obtaining witnesses in his favor, and, in all 
prosecutions by indictment or information, a speedy and 
public trial by an impartial jury of the county where the 
offense was committed; and he shall not be compelled to 
give evidence against himself; but in prosecutions for rape, 
adultery, fornication, sodomy or the crime against nature 
the court may, in its discretion, exclude from the courtroom 
all persons except such as are necessary in the conduct of 
the trial.

Sec. 146. The Supreme Court shall have such juris­
diction as properly belongs to a court of appeals.

MISSISSIPPI STATUTES REFERRED TO IN BRIEF

Sections Taken from the Mississippi Code of 1930.

Sec. 588—On the trial of prosecutions for any crime or 
misdemeanor, it shall be the duty of the judge to sign any 
bill of exceptions tendered by the defendant during the pro­
gress thereof, if the truth of the case be fairly stated there­
in, and the said exceptions shall be a part of the record of 
such prosecution.



- 6 8 -

Sec. 589—Bills of exceptions to any ruling of the court, 
made before the jury retires from the box, must be tender­
ed and signed during the trial, or during the term of the 
court, and bills of exceptions to judgments overruling mo­
tions for new trials must be presented to the judge for his 
signature during the term or within ten days, or such 
further time, not exceeding sixty days, as the court may al­
low, after the end of the term, and must be signed prompt­
ly by him if found to be correct; and if the death, resigna­
tion or other incapacity of the judge shall prevent him 
from signing a bill of exceptions, the affidavit of the attor­
ney of record who represented the party tendering the bill 
of exceptions, and all of them if more than one, that it cor­
rectly states the facts and rulings of the court, shall be re­
ceived as a substitute for the signature of the judge to it; 
but in such case, if the appellee shall file in the Supreme 
Court an affidavit of himself or his attorney in the court 
below, that the bill of exceptions is not correct, stating par­
ticularly wherein it is not correct, he may file any affi­
davits than his own touching the matter, and the opposite 
party may do likewise up to the time of the call of the case 
for trial in the Supreme Court; and said court shall con­
sider and determine, on submission of the case, both as to 
the truth of the bill of exceptions and the questions involv­
ed in what the court may determine to be the bill of excep­
tions.

Sec. 590—If the judge shall refuse to sign a bill of ex­
ceptions to an opinion, decision, or change given or made 
on the trial of any cause or motion, when the bill of excep­
tions is tendered to him, it shall be lawful for two attorneys



— 6 9 —

at law who may be present at the time of the giving or 
making of such opinion, decision, or charge, and of the re­
fusal of the judge to sign such bill of exceptions, to sign the 
same; and the bill of exceptions so signed shall have the 
same force and effect as if it had been signed by the judge.

Sec. 586—INSTRUCTIONS.—The judge in any cause, 
civil or criminal, shall not sum up or comment on the testi­
mony, or charge the jury as to the weight of evidence; but 
at the request of either party he shall instruct the jury up­
on the principles of law applicable to the case. All instruc­
tions asked by either party must be in writing, and all al­
terations or modifications of instructions given by the court 
or refused shall be in writing, and those given may be 
taken out by the jury on its retirement. The clerk, before 
they are read or given to the jury, shall mark all instruc­
tions asked by either party, or given by the court, as being 
“given” or “refused” , as the case may be, and all instruc­
tions so marked shall be a part of the record, on appeal, 
without a bill of exceptions.

Sec. 1293—Sentence upon Conviction—in capital cases, 
power of the jury.—In any case in which the penalty pre­
scribed by law upon the conviction of the accused is death, 
except in cases otherwise provided, the jury finding a ver­
dict of guilty may fix the punishment at imprisonment for 
the natural life of the party; and thereupon the court shall



•70-

sentence him accordingly; but if the jury shall not thus 
prescribe the punishment, the court shall sentence the par­
ty found guilty to suffer death, unless the jury by its ver­
dict certify that it was unable to agree upon the punish­
ment, in which case the court shall sentence the accused to 
imprisonment in the penitentiary for life.



IN  TH E

SUPREME COURT OF ARKANSAS
BUBBLES CLAYTON and JIM X . ' 

CARUTHERS,
APPELLANTS,

STATE OF ARKANSAS,
APPELLEE.

APPEAL FROM THE CIRCUIT COURT OF THE 
MISSISSIPPI COUNTY, CHICKASAWBA 

DISTRICT.

HON. NEILL KILLOITCtH, Judge.

STATEMENT, ABSTRACT AND BRIEF OF 
APPELLANTS.

John R. Thompson,
Jno. A. Htbbler,

Attorneys for Appellants.

MONTGOMERY a  SON. LAW BRIER PRINTERS, POPLAR BLUFF, MO.





IN  TH E

SUPREME COURT OF ARKANSAS
BUBBLES CLAYTON and JIM X . ' 

CARUTHERS,
APPELLANTS,

V.
STATE OF ARKANSAS,

APPELLEE.

APPEAL FROM THE CIRCUIT COURT OF THE 
MISSISSIPPI COUNTY, CHICKASAWBA 

DISTRICT.

HON. NEILL KILLOUGH, Judge.

STATEMENT, ABSTRACT AND BRIEF OF 
APPELLANTS.

STATEMENT.
Bubbles Clayton and Jim X. Caruthers were 

indicted by Grand Jury of the Chickasawba Dis­
trict, Mississippi County, Arkansas, April 1, 1935, 
for committing a rape upon the person of Vergie 
Terry, a white woman, and they were tried before a



2

jury at Blytheville, Arkansas, in the Chickasawba 
District of Mississippi County April 8, 1935,
and the jury brought a verdict of guilty April 
9, 1935, as charged in the indictment and assessed 
their punishment at death in the electric chair. 
Yergie Terry, the prosecuting witness, stated 
that she was raped December 21, 1934, on a 
highway near a cemetery in the suburbs of 
Blytheville, Arkansas, by two negro men while 
in company with her white escort, Wiley Bryant.

Bubbles Clayton and Jim X ., Cyuthers, Negro 
men, 21 and 19 years old respectfirSyAwere arrested 
first for the crime of shooting Sheriff Wilson of 
Mississippi County who is alleged to have been 
shot January 12, 1935, and they were arrested Jan­
uary 13 and placed in the Osceola jail where they 
claim they were unhumanly beaten in an attempt to 
force a confession from them for the alleged shoot­
ing. They were taken from Osceola to Memphis in 
order to prevent the mob from lynching them and 
kept in the Memphis jail for some time after which 
they were taken to the state penitentiary and placed 
in the death cell at the Tucker Farm. While there 
they were visited by Sheriff Wilson, his deputy, 
Arch Lindsey, Yergie Terry and Wiley Bryant for 
the purpose of having Yergie Terry and Wiley 
Bryant identify them as being the persons who 
committed a rape upon Vergie Terry December 21, 
1934. The matter of identification is shown in the 
transcript from the testimony of Sheriff Wilson, 
deputy sheriff Lindsey, Yergie Terry, Wiley Bryant, 
Bubbles Clayton and Jim X. Caruthers seems to 
have been more of a formality than a real effort to 
properly identify the guilty parties.



3

The two defendants, Bubbles Clayton and Jim 
X. Caruthers, were placed in a cell to themselves and 
the two prosecuting witnesses, Vergie Terry and 
Wiley Bryant, were brought into the death cell by 
Sheriff Wilson and his deputy, Arch Lindsey, and 
pointed out to the two prosecuting witnesses by the 
sheriff and his deputy. The manner in which they 
were required to identify the two defendants, 
coupled with the facts brought out in the testimony 
of the two prosecuting witnesses, Vergie Terry and 
Wiley Bryant, that it was on a lonely highway, a 
dark night and that the woman, Vergie Terry, was 
raped by two men alleged to have been Negroes 
whose faces were covered with masks leaves, a very 
grave doubt as to the possibility of the correct iden­
tification of these defendants.

This case is brought to this court on appeal 
from the verdict of the jury imposing this sentence 
upon the two defendants, Bubbles Clayton and Jim 
X. Caruthers, asking for reversal for the reasons 
set out in the motion for new trial and argument 
as follow? in this brief.

Abstract of Testimony.
WILEY BRYANT, witness for the State, tes­

tified as follows:

My name is Wiley Braynt, I live at Earle, 
Arkansas, On December 21, 1934, I lived at Sandy 
Ridge. I know Miss Virgie Terry, had been going 
to see her about two months prior to December 21, 
1934. I owned a two-door sedan. About 7 :30 P. M., 
December 21, 1934, I went to the home of Miss Terry



4

for her. We rode around town and we went to 
Sawyer’s Graveyard about one and one-half miles 
southeast of Blytheville and parked there about 8 
o ’clock. One-half quarter north of Cross Roads. My 
car was headed north. We had been there about 
three-fourths of an hour. It was a thin cloudy 
night. Every once in a while the moon would come 
out. We were sitting in the front seat. I was under 
the steering wheel, and I had my arm around Miss 
Terry. Two fellows walked up, one on each side of 
the car, flashed a light a piece on us and one of 
them fired a shot and opened the door and told 
us to get out, then hit me over the head with a 
flash light. They had already commanded that we 
stick them up, which we did. The door was open 
a little before the shot was fired. The car we were 
in is now at home with all the inside burned out of 
it and I could not bring it to Blytheville. The 
bullet mark is still there, right under the door knob 
of the left hand side. The young lady got out on 
the right hand side and I followed. We were then 
searched, by the two men. The two men that 
searched us are the two over there (indicating 
defendants, going over there and putting hand on 
them). The biggest one came up on my side of 
the car. When we got out they both came around 
on the right side of the car. The biggest one held 
the gun on us while the other one searched. They 
went through my pockets and slapped me all up and 
down. Pulled my hat off and searched it. I had 
nothing of value and he got nothing. The biggest 
one told the girl to g*et into the car, the other told 
me to get down in the ditch, which I did, as there



was a car coming along. The little one .stayed with 
me. I don’t know what the girl and the other one 
did. When the car passed, I had an opportunity 
to see the little one. He guarded me in the ditch 
about 15 minutes. He ran backward and forward 
to the car. About twenty minutes after they ordered 
the girl to get into the car, two cars had passed, one 
going each way. After the defendants were arrested 
T made a trip to Tucker Farm to see them, and 
identified them as being J:he men who assaulted me 
that night. There is no doubt in my mind as to 
their identity.

CROSS EXAMINATION.
I lived at Sandy Ridge six years, not married, 

am 23 years old, never been married, worked with 
my father. It was my car. Had been knowing 
Virgie Terry fifteen years. Her maiden name was 
Virgin Ennis. Don’t know when she married, she 
was away at the time she was married. Used to live 
at Forty-Eight. We used to play together when we 
were kids, lived near each other out at Forty-Eight, 
which is east from Blytheville, about sixteen miles. 
I didn’t know her husband. I don’t know where he 
isi now. She is not divorced. I saw her husband here 
one day this week. Am not acquainted with him. 
On this particular night I met Virgie down at Mr. 
Webster’s where she was living. Had been going 
out with her often. The way I got started going 
with her, I just saw her and made a date. Didn’t 
know whether she was married at that time or not. 
We would go around here in town together. Drove 
out of town sometimes. On this particular night,



6

I  came up on Main street and took the gravel road 
out to the place where we were parked. I drove 
down and turned around at the school and came 
back. Parked on the east side of the road. The 
right side going north. The ditch there was about 
three and one-half feet deep. No water in it nor 
trees or woods along the road, but there was some 
weeds. Had been there about three-quarters of an 
hour, just sitting there talking. The two men passed 
us walking a little before the attack. My lights were 
not on, was about eight o ’clock. It was entirely 
dark. They went on by and then came up behind us. 
I could not see their faces when they passed, nor how 
they were dressed. Don’t know that they are the 
same two men. It is just my conclusion. They had 
been gone about ten minutes when they came back. 
Without saying anything this man .shot through the 
door. He just said “ stick them up”  and shot. The 
car was parked about as near the edge of the ditch 
as I could get. I saw the gun in the other man’s 
hand after I got out. The door knob is about the 
middle of the car. It is just back of the front seat. 
Bullet didn’t go clear through the door. It was 
moderately cold and the glass was up, and had 
rained a little that evening. After the man shot he 
opened the door. It was: the big one on my side. He 
is the one who said “ stick them up” . He said get 
out. There was nothing peculiar about the way he 
said it. Talked like any other negro. Had: said 
nothing up until the time I got out. I got out on the 
right side. I don’t know who opened the door. The 
one on my side held the door open until I got out 
and then closed the door and, came around on the



7

other side. The little one was holding the gun on 
both of us until he came around. The two of us 
were standing there and the little one told me to get 
into the ditch and told the girl to get into the ear. 
The big one told the girl to get into the car. They 
both had their faces covered and I didn’t see their 
faces. It struck me then that one of them was bigger 
than the other. That was about the only difference 
I noticed, then. They both had on caps with bills. 
The moon was shining, every once in a while and I 
could see the kind of clothes they had on. I got 
down in the ditch below the level of the road and laid 
down. The little one stood up and held a gun on 
me. He was just south of me, and I was lying 
lengthwise of the ditch, my head southwest. My 
face down, yet I could see that negro as he stood 
there. I didn’t have eyes in the back of my head 
but I raised my head and looked up at him. He 
said nothing to me and I, nothing to him. He had 
a mask over his face. He guarded me about fifteen 
or twenty minutes. All the time he was hurrying 
up the other one. Both car doors were shut at that 
time. The negroes then changed places and the big 
one guarded me and told me to sit up. They were 
both there at that time. The little negro then got into 
the car. There was a time when both negroes were 
down on the ground and the girl up in the car. 
The ditch where I was, was about ten feet from 
the car door, I guess. I was just in front of the 
car and about ten feet east. The big one asked if 
the little one got anything off of me and I told him 
“ no” . He didn’t talk any more and still had the 
handkerchief over his face. I didn’t yell as the



car passed. It was making about thirty. The 
second one passed about ten minutes after the first 
one. The little negro was guarding me when both 
ears passed. He kept the gun at my back all the 
time and I was lying on my stomach in the ditch. I.sat 
up before the big one. I didn’t say a while ago the 
big one told me I could sit up. The big one watched 
me about the length of time the little one did. They 
told me to stay there about ten or fifteen minutes, 
if we didn’t, they would kill us both if we passed 
them before they got across the railroad which was 
north of us. We did get into the car before they 
left. So far as I remember there was nothing 
peculiar about the manner in which one of these 
negroes talked. When I got into the car, Miss 
Terry got up into the front seat with me. She was 
in the car all the time after she first got back in. 
We waited about eight minutes. We saw these men 
starting away. They still had masks on. When I 
first got into town I asked Brewster where was 
Arch Lindsey, and he said he didn’t 1 know; out on 
the street. Brewster is one of the night cops. 
Didn’t undertake to tell Brewster what had 
happened, didn’t see Arch. I went around and told 
the night man what had happened out there and 
took Miss Terry back to her home on Lake Street. 
She was with me when I talked to the night man. 
I said I went to Tucker Farm and saw the boys. 
I don’t reckon I ever saw them before the night they 
held me up. The only other time I ever saw them 
before I came into the court room was at Tucker 
Farm from that I am saying positively that those 
two boys who had handkerchiefs on their faces all



the time are the boys. I have not worked with 
negroes a whole lot but I am willing to tell the jury 
these are the two boys. There was not a time that 
either of these boys had their facesi uncovered when 
I saw them. I have been watching around town for 
the ones who assaulted me. Never recognized these 
two boys around town. When I saw the boys at 
Tucker Farm, I knew right then they were the boys. 
When I saw them at Tucker Farm they were in the 
death cell. No one else in there. They just carried 
us in and told us to look at them and we looked at 
them and walked out. They were the only two 
boysi in there.

’RE-DIRECT EXAMINATION.
Both of them talked a little when we were in 

there. I never at anytime pointed out or suspicioned 
anyone except those two defendants, except the 
names I knew nothing about the two men who were 
arrested. There was a line of cells in there and there 
were two other negroes in the cells. I went to the 
cell where these two boys were located and picked 
them out as being the ones. Mr. Arch Lindsey was 
with us at the time. He didn’t say anything or indi­
cate anything in any way which cells contained the 
negroes suspected. At the time of the assault one of the 
boys wore blue overalls and a blue jacket and the 
other one stripped overalls and a jacket. It was 
light enough for me to see these things. I guess 
Mr. Lindsey knew which cell the negroes were in, 
but he didn’t tell me. They had on overalls in the 
cell. These boys had mustaches down there. Didn’t 
see his face on the road that night. Didn’t .see his



1 0

mouth, didn’t see his kinky hair, couldn’t see the 
flat nose and mouth of the little one.

RE-DIRECT EXAMINATION.
When the little boy told the other one to hurry 

up as he was guarding me the big one .said, “ I will 
be through in a minute, as soon as I get through” .

Witness excused.

MR. ARCH LINDSEY, witness for the State,
testified as follows:

My name is Arch Lindsey, and I am, Chief 
Deputy Sheriff of Mississippi County. I am familiar 
with the highways which lead south out of Blythe- 
ville, down passed the Fairfield Place near Sawyer’s 
Graveyard. I know where the roads intersect at 
Sawyer’s Cemetery, north and south, and east and 
west. All that territory which is north of the east 
and west intersecting road which is in the Chiekasawba 
District of Mississippi County, Arkansas. Myself, 
Misis Terry, Mr. Bryant and Sheriff Wilson went to 
Tucker Farm together. Down there Mr. Todhunter 
talked to the young man and lady and told them to 
say nothing. “ Take them in turn and pick out the 
negroes” ,, cautioned them very carefully to be .sure 
they were right. There were two negroes in the 
cell right behind them. There were four cells in the 
death house. I believe three whites were in there. 
There is a gate which you have to unlock to the 
death cell and that ante room down there, we walked 
to the door and they stopped just inside. We 
stopped just inside and the girl and boy walked



11

in there and stood about ten minutes. I said are you 
through. They said they were. I told them not to say 
anything when they walked out. I said what negro is it 
and they said the two in the far cell that was the 
cell with these two negroes in it. If my memory 
serves me right, there wasn’t a word spoken until 
they walked out and then I went back and talked to 
Bubbles and I think Clarence did. I talked to both 
of them. If there was a word passed, I don’t 
remember it until after this couple walked out.

CROSS EXAMINATION.
I don’t remember what we talked about on the 

road down there. Probably talked about this case 
some. I did say we didn’t discusis how we finally 
located and arrested the boys on the road down 
there. They were first taken from here to Osceola. 
Mr. Jackson called me from Osceola and I went 
down there and they were moved from there to parts 
unknown to the people around here. From parts 
unknown they finally ended up at Tucker Farm. I 
wouldn’t be surprised if they did not go out of the 
State at one time and then back to Tucker Farm. 
There were two other negroes in the death house 
at the time in the cell right next to them. If 1 
remember right all the negroes were in there, and 
whites as well had on overalls. I am not positive.

Witness excused.

VIRGTE TERRY, witness for the State, testi­
fied as follows:

My name is Virgie Terry. I am nineteen years



old, was born in Tennessee, came to Mississippi 
County when I was seventeen months old, now live 
in Friendship, Missouri. This is my father and 
mother sitting behind me. Have lived at Friend­
ship two years. Lived in and around Blytheville all 
the time until about two years ago. My father is a 
farmer. Last summer I worked here in the canning 
factory on Ash Street and lived at Mr. Webster’s. 
Had known him. all my life. Fie is an old friend 
of my family. I was married in 1932. My hus­
band’s name is Bob Terry. He lived at Huffman. 
We are separated now, have been separated twenty 
months. I was separated July 17, 1933, and since 
that time I have been keeping company with other 
men. I knew Wiley Bryant. On December 21, 1934, 
I, in company with Wiley Bryant was parked out 
next to Sawyer’s Cemetery. He came for me before- 
dark, about six o ’clock, at the home of Mr. Websters. 
We parked out by the cemetery about 8:30. The car 
was facing north. While we were parked two negroes 
passed the car going south. The two that passed 
going south came back in about ten minutes. I 
didn’t know they were there until they flashed the 
lights1 in our faces, one on each side. One from one 
side and the other from the other. At that time, Mr. 
Bryant was sitting under the wheel and I was sitting 
on the other .side of him talking. He told us to 
stick them up and we did and then told us to get 
out and before we could get out he jerked the door 
open and fired the shot, but it hit the car. The fire 
and smoke of the gun blinded me for a few minutes, 
then we got out. I got out first and he got out and 
when they shot they hit him in the head. They hit



him with a flash light or something. I don’t know 
what. When they hit him, he fell over against me. 
He got out behind me. I stepped out and they took 
him to the .back of the car, just a few steps from the 
front door and the larger one held a gun on him 
while the other one searched. They forced him to 
sit down in the ditch and the .small one held a gun 
in his back and the larger one threw the gun on me 
and told me to get into the car. I see the two men 
in the court room I am talking about. They are 
right there. Those two men over there with the 
white shirts on. The little one, on the left. The 
big one is the one who came up on the man’s side of 
the car and fired. (Here counsel agreed that Clay­
ton is the big one and Carruthers is the small one 
referred to by witness.) At that time the large one 
had his gun in my side. I asked him what he wanted 
me to go into the car for and he told me if I did 
not get into the car he would, kill me. I said if I 
get into the car will you kill me and he said “ No, 
if you will get into the car.”  He turned the front 
seat down and told me to get into the back. The 
door of the car was open from the center and swung 
back toward the engine. I got into the back seat 
and he followed me in and laid the gun down beside 
me in the seat, held his hand on the gun, and, forced 
me to lay down. He forced me to have intercourse 
with him. I had on a slip. In that position he had 
intercourse with me. It was complete act of inter­
course and done forcibly, and against my will. I 
wouldn’t under any circumstances considered having 
intercourse with him. "While that act of intercourse 
was being carried on the smaller one kept hurrying



14

him. He would always tell him to wait until he had 
finished- It was a complete act of intercourse. 
When he had finished, he got out and before I could 
get up the other came in with the gun and forced 
me to stay in. He had a complete act of intercourse 
with me, which was forcible and against my will 
and I would not under any circumstances have 
agreed to that act of intercourse. I realized that 
it is a serious charge and there is no doubt in my 
mind that these are the two men which I have testi­
fied about. I am sure they are the ones. When 
the acts were over they stayed there about five 
minutes when they put us in the car. When they 
had. finished they put him in the car under the 
wheel and put me in and closed both doors and the 
little one came back on the boy’s side and they 
talked a few minutes,, and the larger one suggested 
killing us but the little one would not agree to it. 
He didn’t give me any reason for killing us, just sug­
gested it. They told both of us to wait there about 
fifteen or twenty minutes, to give them time to get 
to the railroad. Said they were going to walk into 
town: and catch a freight out that night. If we 
passed them, before they got to the railroad they 
would kill us both. We waited about five minutes. 
They went north a few steps, stopped and talked a 
few minutes, went on a little further, and turned left 
out through a cornfield and went toward town. Then 
we came to town and reported it to the officers. 
When they came out there, they were masked. While 
the act of intercourse was going on with Clayton, 
there was a car passed. While the act was going on 
he pushed his mask on his forehead. I had an



15

opportunity in the full glare of that light to see and 
know him,, and this is the man. When the act of 
intercourse was going on with the other one he did 
the same thing with his mask. When these two men 
were arrested, I, with Mr. Lindsey and Mr. Wilson 
and Mr. Bryant was taken to the penitentiary to 
identify them. Mr. Lindsey told us to go in and 
see if we could find them there, to see if they were 
the ones and we went in and turned to the left and 
we saw those two men, negroes, in there, but we 
went, on down until I came to the cell they were in. 
We walked to the first cell. When I got to where 
these negroes were after I had seen them, there was 
no doubt in my mind and there is no doubt of any 
kind now.

CROSS EXAMINATION.
I am nineteen years old and was married at 

Cooter, Missouri, June 5, 1932, to Bob Terry. I am 
not divorced from him now. I left him on the 21st 
of December. Had been living back in Blytheville 
almost three months. Had been back about a month 
when I began making dates with Wiley Bryant. 
That was the second time we were ever on that 
road. We had been there, as I recall, about forty 
or forty-five minutes. We did turn the lights off 
the car. The first I knew they were there was when 
they flashed, the light in our faces. The one on the 
left told us to stick them up. I heard him, plainly. 
There was no hestitation in his speech of any sort. 
Mr. Bryant did not have his arm around me, he 
had it lying on the back of the seat. He opened 
the door and shot at the same time. I couldn’t see



what he hit Mr. Bryant with. The masks they had 
on were white handkerchiefs, one had a colored 
border. I couldn’t see them plain, but could tell 
they were masks. There was nothing peculiar about 
the big negroe’s voice when he talked to me. He 
told me to get into the back seat. I wasn’t lying, 
7 was lying kinda out, my head on the back of the 
seat like. My back was not toward the road then, 
toward the ditch. He didn’t close the door, as I 
got. in. He left the door toward the ditch open. 
The other door was closed. The first car came from 
the north and went south. It went by and turned 
and came back. I knew it was the same car, it 
went down to the corner and turned around and 
came back by. There was another from the south 
after that car turned. "When it came back, I was 
still in the ear in the same position with my head 
in the southwest corner of that seat with my face 
to the northeast. I know it was the .same car I heard 
turn and come back, I could tell by the light, it was 
turning. The other car came by in just a few min­
utes. One of the cars that passed going either 
way passed while the larger man was with me and 
I am telling the jury that under those circumstances 
I saw the boy so clear that at least one month after­
wards I could identify him and be sure about it. 
T am positive of that. The boys had on caps. He 
left it on when he got into the car. He didn’t push 
it up over his head; he pushed it up on his fore- 
headi. He had a regular bill on his cap. I was 
naturally and necessarily in a cramp position down 
there. Had never .seen either one of the boys before 
that I remember of, and never after except the one



17

time at Tucker Farm. I realize that on my identi­
fication depends possibly the lives of these boys 
and knowing that, I still say and am willing to stand 
on my identification made out there in the car with 
the door closed at 8:30 or 9 o ’clock on a December 
night without any light. The big one did answer 
when the little one talked with him. There was 
nothing unusual about his voice. When he got out 
before I could, get out, the other one got in. No car 
passed while the other one was in the car with me. 
The way I explained why I could see him when no 
light was in the car, the moon came out at times 
while he was in there and shown right in the car. 
I wasn’t lying in the same position when the small 
one was in there, wasn’t over as far. He didn’t 
stay in the car the same length of time as the large 
one. Not as long. When he got out of the car they 
told Mr. Bryant to get into the car. They didn’t 
have a gun on me at that time. It was then they 
ordered me to get back in the front seat. They were 
standing both on the same side, next to the ditch. 
It was the large one who said they were going to 
take a freight train out of town. He did most of the 
talking. I didn’t talk to the boy at the Tucker 
Farm. They were talking to the sheriff, Mr. Wilson. 
He was in there the same time we were. Both Mr. 
Wilson and Mr. Lindsey came up to the cell while 
I was there and they went to talk to these negroes.

RE-DIRECT EXAMINATION.
I went to the fourth grade, was never a witness 

before. These negroes kept us together that night, 
as near as I can estimate, about one hour. The



18

biggest one was in the car with me about twenty- 
five or thirty minutes while the act of intercourse 
was going on. The little one was in the car about 
ten or fifteen minutes. He asked me which is the 
best, a white man or a colored man. I didn’t answer. 
Then he asked me if I lived in the city or out in 
the country. I told him I lived in the city. The 
officers warned me that my identification of these 
men was a serious proposition and impressed on me 
the importance of being absolute certain, and if I 
were not certain for goodness sake not to say so, 
and has warned me of it time after time, and I 
realize the consequences of what might happen under 
the law to these defendants, I say these are the two 
defendants.

Witness excused.

Witness recalled after noon recess for further 
examination.

RE-DIRECT EXAMINATION.

When I testified this morning that the defend­
ants and each of them had intercourse with me, I 
meant sexual intercourse.

RE-CROSS EXAMINATION.
I didn’t cry out when either of the cars passed. 

The boy had his hand on the gun.

RE-DIRECT EXAMINATION.

I knew it would not do any good to cry out. I 
was frightened.



19

RE-CROSS EXAMINATION.
I did answer one of boys’ questions.
Witness excused.

BUBBLES CLAYTON, one of the defendants, 
was called by the defense as a witness, testified 
as follows:

My name is Bubbles Clayton. I am twenty-one 
years old and one of the defendants, and live here 
in town, where I was born and lived all my life. 
Have been farming all my life for different white 
men. In 1934, I farmed 10.79 acres near town. I 
didn’t attack this girl on the night of December 
21. On that night I was at 100 Matthews Street 
here in town. Several other people were with me. 
We played cards down there until about 10 o ’clock. 
When I went home and went to bed but before 1 
went to sleep I got up and went with a party to the 
State line to get some whiskey. That was Friday 
night, December 21. We got back home from the 
State line after midnight. Eight people were in 
the car in which I went to the State line, some of 
whom are here now. On that night I had on these 
trousers right here, and I had, on a kind of checked 
shirt, and a sweater. I won’t wear a pair of over­
alls in five years, and everybody that knows me 
knows I haven’t wore a pair in five years. I just 
buy them little workman pants. I didn’t wear a 
cap, I have two hats I bought at Mr. Hughes’ store. 
After I was arrested I was taken down at Tucker 
Farm and kept in the death cell. At one time there 
were three of us colored boys in there and about



20

four whites. This is the first time I ever seen the 
young lady who testified here, except when they had 
her down at the pentitentiary, they brought her, 
Mr. Wilson and Mr. Arch Lindsey down there. Mr. 
Arch Lindsey and Mr. Clarence Wilson, all of them 
come in together. They stayed up there talking; 
Mr. Arch Lindsey asked me, said, “ Bubbles, what 
is the matter of your hand?”  I said, “ That is 
where you fastened the handcuff's too tight.”  Mr. 
Clarence was talking to Jim X. They all came in 
together and stayed there and looked at us a little 
while and Mr. Arch Lindsey said, “ You all go back 
out.”  I thought Mr. Wiley Bryant and Miss Terry 
were sightseers as many sightseers came in there. 
I had never seen them before. When they came 
down there there was three of us colored boys in 
the cell, and when the captain taken the other boy 
out in the cell with us there was anything between 
us' but bars and made him get into the cell with 
one of the white boys and gets in the white boys bed 
and covered up his head. He said, “ Get in there 
and keep your head covered.”  When they came in 
there there wasn’t anybody in there but us to see, 
only us two colored boys to be seen.

CBOSS EXAMINATION.

I farmed ten and seventy-nine hundredths acres 
last year. I had it rented. Part of my occupation 
wasn’t stealing. I farmed all my days.

Q. Was it last term or the term of Court before 
last, we convicted you of larceny?

A. That was something I wasn’t guilty of. 
You just convicted me for something I wasn’t guilty



of. They picked up the right hoy and fined him for 
the same thing. They fined him for the same thing 
and sent him to the county farm. They did not fine 
him for receiving stolen property that I had stolen.

I know where I was December 21, November 
18. I was out in the country. I was out there all 
of November. I didn’t hijack Mr. Frank and Miss 
Hutchins on November 18, and didn’t shoot her. 
I didn’t hijack and shoot her just the other side of 
Jim Smith’s house. I don’t know Miss Hutchins. 
1 didn’t see a lady who went in the witness room 
this morning. I didn’t shoot her in the arm,. I 
haven’t stolen anything in my life. I wasn’t guilty 
of stealing when they .sent me to the penitentiary 
of Missouri for stealing, I was with the boy that got 
it. I had served a term in the penitentiary for it 
anyhow. That was in 1931. I don’t know in 1931, 
they had a big lot of robberies about the time of 
this happening. We went to the State line on Dec­
ember 21, in Jim X ’s car. I am not with Jim X. 
a whole lot. January 12, I left from down here from 
100 Matthews Street about 8 o ’clock. I left from 
down there to come up to a girl’s house on Broad­
way. She was not home and I sat there about an 
hour and a half, and got up and walked on back. 
I can’t say exactly where I was at 8:30 that night, 
but I left Katie’s' at eight o ’clock, coming’ to Annie’s 
house. On January 10, I was over in Tennessee, 
also January 5. January 13, they had me putting 
me up. They had me whipping me,, whipping me 
up. About 8:30 on the night of January 12, I was 
not out here on the golf course. I am positive I was 
over in Tennessee. I am not guilty of shooting Mr.



22

Wilson. I was somewhere else at that time. I am 
positively not guilty of that. I wasn’t out there 
when it was done. I don’t know who did it. I guess 
about eleven o ’clock that night a boy called “ Slick”  
came by my house. He was shot in the right 
shoulder. He gave me his pistol, told me that he 
got shot up on Old Town in a crap game, and had 
to go to a doctor. I don’t know his name but called 
him “ Slick” . I don’t know the officers of this 
county on my tale searched the county high and low 
for the negro named “ Slick.”  I know exactly where 
I was on the night of January 12. They did pick 
me up on January 13. I don’t know whether they 
arrested Jim X. or me first. I didn’t be in any car 
on January 12. They brought me first to police 
station and after they took Mr. Wilson to Memphis, 
they took me to jail for safe keeping at Osceola. 
Don’t know why I was taken to the death cell. I 
don’t know as well as anybody else on earth they 
took me down there for safe keeping. I know Mr. 
Lindsey, Mr. Herman Spicer and Mr. Hale Jackson. 
They took me out in a cornfield one night to keep 
a bunch of white men from catching me, they said. 
They drove to Memphis fast all right. I wanted 
them to drive fast and I want to tell you the rea­
son why, I know I wasn’t guilty of it and I never 
had no reason to get whipped up. I make a good 
hard honest living. They might near whipped me 
to death, and hurried me away from Mississippi 
County as1 fast as they could take me. Mr. Lindsey 
Jim X. and I were riding in the back seat. Mr. 
Herman Spicer and Mr. Hale Jackson were in the 
front seat. I sure did beg them not to let them hang



me. The car got pretty close to us several times. 
I understood the officers were making the trip for 
my protection. They kept asking* me what in the 
hell did you want to shoot at us. I told them I 
didn’t shoot at them, and they told me “ you are a 
liar.”  He kept saying it and kept saying it and 
kept saying it and had my hands handcuffed. You 
see where the handcuffs cut into my wrists. (Indi­
cating*.)

Q. You are a mistreated negro, now, we know
that.

A. Had me handcuffed and whipped me. They 
said they had: a mob come to the Osceola jail. They 
put us in jail there that Sunday night about ten 
o ’clock, I guess, and kept us in there until about 
11:30 Monday night. Mr. Jackson kept us out in 
a field until Mr. Lindsey could get there.

Q. Did Mr. Spicer and Mr. Jackson either put 
a hand on you?

A. They put it on me that Sunday night.
Q. They put it on you for shooting Clarence 

Wilson!
A. Yes, sir; they kept telling me, sir, we are 

going to bring a white woman to identify you. I 
said, “ Bring her on here, then. There isn’t anyone 
can identify me, I have been with these white folks 
and I was born there, raised here, and I know how 
to get along with them.”  I know these men were 
taking me from Osceola to the death cell for my own 
protection. They said they were my friends and 
driving in the middle of the night at a reckless rate 
of speed to keep me away from the Missouri car 
following us. I know Mr. Lewis Wilson. I didn’t



stick him tip and then tell Mr. Lindsey where he 
could find his watch and other stuff.

Q. You are a negro man and in there charged 
with shooting the sheriff of this county, who had 
his deputy with him,, Mr. Lindsey, you knew that, 
didn’t you, charged with shooting the law?

A. I don’t know no more than what they told 
me and started whipping me and telling me you 
done so-and-so * # * I didn’t do nothing and they 
whipped me, and whipped, and have done whipped 
me until I couldn’t stand up, and I was laying out 
there and somebody come there and poured cold 
water on my head, and after I got back up some 
guy told me, said, “ Just tell them anything they 
ask you to keep them from killing you” , that is 
what one guy told me, “ Anything they ask you, 
say ‘yes’ to keep them from killing you.”

I don’t know who it was, there was so many 
of them beating on me, they were all whites. They 
like to have whipped me to death. I have got the 
scars right now to show you. They had already 
done near killed me. They questioned me in Mem­
phis. I don’t know who that guy was, but have 
got the scar to show. He was a white man. I know 
there was Mr. Lindsey and Mr. Wilson down in the 
death cell all the time. I thought they came down 
there for a bill of sale to Jim X ’s car. He had a 
bill of sale he was trying to get Jim X. to sign. I 
did see the young man and young lady. (Tr. 102- 
123).

Witness excused.



WILLIE MANUEL, witness for the defendant, 
testified as follows:

My name is Will Manuel. I live at Amorel. This 
witness could not remember where he was on the 
night of the alleged, crime and was excused. (Tr. 
123-124.)

Witness excused.

MYRTLE DODSON, a witness for the defendant, 

testified as follows:
My name is Myrtle Dodson. I live in Blytheville, 

and have for eight or nine years. Just before Christ­
mas I made a trip to the State line with some other 
folks, in which party was Bubbles Clayton and Jim 
X. It was in Jim X ’s car. It was three or four days 
before Christmas, what night I don’t know exactly. 
We left around eleven o ’clock, I think, and went to 
the State line. I guess we were gone about an hour. 
I just saw Jim X and Bubbles about nine or ten 
o ’clock. We were all together after the trip to the 
State line.

CROSS EXAMINATION.
It was about three or four days before Christmas. 

I don’t know exactly what night. On Monday, I 
stayed home and picked pecans for Christmas. I 
don’t know whether it was Friday night or not. (Tr. 
124-129.)

EVELYN BO YON, witness for the defendant, tes­
tified as follows:



26

My name is Evelyn Boyon, I liave lived at Bly­
theville for seven or eight years. I worked for Mr. 
Humphreys. Just before Christmas I went up to the 
State line with some people in a car. Jim X  and 
Bubbles were with us in the car. (Then tells who else 
was in the car.) It was before Christmas. I don’t 
know how long. Got back to Blytheville about twelve 
or one o ’clock.

CROSS EXAMINATION.

I don’t remember how long before Christmas it 
was. I remember the night Mr. Wilson got shot. I 
saw Jim X  and Bubbles that night. Jim X keeps a 
car. I don’t know what he does. He and Bubbles 
go around together a lot in the car. They are 
together practically every night. I seen them. (Tr. 
129-133.)

Witness excused.

LHCIEN TAYLOR, witness for the defendants, 
testified as follows:

My name is Lucien Taylor. I live down on 
Franklin here in Blytheville. I went up to the State 
line sometime in December witn Jim X and Bubbles 
early in the evening. Don’t know what time, it was 
night. They were playing cards for about an hour 
I never paid no attention to it. I was not thinking 
this was coming up and I was having a time.

CROSS EXAMINATION.

We went up there about eleven o ’clock, and had 
been playing cards with Jim X and Bubbles. That



27

isn’t the first time I had been up to the State line 
in that car with Jim X. and Bubbles. (Tr. 133-139.)

Witness excused.

JIM X. C A RUTIIE RS, one of the defendants, 
testified as follows:

My name is Jim X. Caruthers, I am nineteen 
years old and have lived in near Blytheville all 
my life. I was born in the country. Have worked 
on the farm. The biggest I have known is working 
on the farm, planting and chopping cotton and 
picking it. I last worked for Mr. Robinson in Old 
Town. Hauled cotton pickers for him. In the fall 
when cotton picking) came I started hauling cotton 
pickers in the car and started picking cotton my­
self. I don’t know where I first saw Miss Terry. 
One lady came to Tucker, Arkansas, where I was. 
I am not the little man as she calls it that was out 
there that night ,she says held them up. The night 
that happened, a bunch of us played cards until ten 
o ’clock. Then got into the car and went by Bubbles ’ 
house, got him and went to the State line, got some 
whiskey and started drinking. Bubbles and I were 
not out there where she mentioned and. held her 
or anybody else up. We did not that night or any 
other night attack or abuse her. On that night a 
bunch came from Amorel and we gave them a party. 
We started playing cards about six o ’clock and 
played cards and danced until the crowd left and 
then we got into the car and go up to the State line 
and get. some whiskey. It was my car that we went 
in. I have had it better than one year. Got it up 
in Missouri. It was all paid1 for. (Here introduces



paper which reveals evidence and title to car.) After 
we were arrested they had us down at Tucker Farm 
in the death cell. There was one colored boy named 
Green in there. We all stayed in the same cell next 
to the white boys. Before Mr. Lindsey came down 
there the captain came and took Green Phillips out 
and told him to get into the bed and cover his head. 
That left nobody in the cell but me and Bubbles. 
Then Mr. Lindsey, Mr. Wilson and. another woman 
and man came down there. I could not say if the 
woman and man are the ones1 who testified here 
this morning. When they first came, Mr. Wilson 
called me and said “ Get up, Jim X., and come here’ ’, 
and I got up and he said you are getting fat, and 
by that time, Mr. Wilson was on the other side and 
asked which one was Jim X., and I .said, “ 1 am 
Jim X .”  and went to where Mr. Wilson was and 
Bubbles went over to where Mr. Lindsey was. The 
woman and man heard Arch say, “ Come here, 
Jim X .” , and they pushed them, out the door and 
told them to go out and they stayed in and talked 
awhile. Mr. Lindsey asked me about a bill of sale 
about my car. He had. a bill of sale with him. Said 
he wanted the car to go on his doctor bill. I can 
not .say that I ever saw the girl before this morning. 
I didn’t hold up the car she was in on the 21st day 
of December. I didn’t attack and assault her and 
I didn’t hold up the boy.

CROSS EXAMINATION.

I have been in Blytheville about three or four 
years. Went to school about two or three years 
when I stopped and started picking cotton. I think



29

$349.00 was what I gave for the automobile. I bought 
it in the fall of 1932. I think it had twelve or thir­
teen thousand miles on it when I got it. I don’t 
know the register now reads forty-four thousand 
miles. I have driven it the difference it reads when 
I got it and what it reads now1. I paid for it by 
monthly payments. I haven’t said I paid for it 
myself. I got money from my mama and sister 
co help pay for it. I bought the gasoline, made the 
money picking cotton and chopping cotton. Air. Rob­
inson paid me for picking cotton and bringing cotton 
pickers to him. That isn’t my cap. I don’t know 
that it was found; in my car together with two hand­
kerchiefs with eyes cut in them. (Here witness is 
■old to put something on and see if the eyes fit.)

Q. Don’t fit, does it?
A. No, sir. I don’t know if it belongs to 

Bubbles. I know it wasn’t in my car. I haven’t 
seen any guns that was found in it, and don’t know 
how many were found in it. That forty-five found 
under the seat had been there about a year. I guess 
it was mine. I got it from a white fellow, it would 
not shoot. I forgot to take it to the shop and get 
it fixed up. Bubbles and I went to the State line 
on this night. We bought a pint of whiskey and 
bought a quart bottle of wine. I bought the gaso- 
Jine. I got acquainted with Bubbles a little before 
Christmas. I was acquainted with him on the night 
of January 12, this year. I guess my car was 
parked out there right where sheriff Wilson got 
shot. I went to the police station and claimed it, 
and they grabbed me. I jumped out of the window 
and mozeved away from there that night. I just



30

kind of walk a little and sat down and crawled. 
There was only one flashlight that belonged to me. 
I don’t know who the others belong to. (Here wit­
ness goes into detail and says that someone bor­
rowed his car and took it out of town early in the 
evening* on which Mr. Wilson was shot and he found 
it at the police station.) (Tr. 155-157.)

I know John Brewster. Don’t think I know7 
Charley Short. I told Mr. Short that I was parked 
up on the road with my girl and two negroes came 
along, ran us out and stole my car. That wasn’t 
the truth then. 1 didn’t know that Mr. Wilson and 
Mr. Lindsey had been shot at up there and that I 
was getting myself away from that car. After I 
went up and told him that, that is w7hen they started 
whipping me. When they started whipping me and 
beating me I was scared to tell any more. I didn’t 
know- they were waiting for someone to come along 
and claim the car but I sure found out about it. 
I don’t know7 Mr. Rainmiller and Mr. Lindsey 
found my two flashlights .stuck up under the mat­
tresses at Katie’s house the night after this 
occurred, right where I told them they w7ould find 
TJiem. I know7 Mr. Rainmiller sitting here. I 
talked to him some length of time in Memphis. I 
didn’t tell him where to find the flash lights. 1 
talked to him a long time. That was after they 
had done beat me so everything they asked me I 
said “ yes” . They were just searching through the 
house and found it, I guess. I guess they searched 
down there because I stayed there. I don’t know 
how the dent got into the flash light, never saw it 
before. Don’t know who it belongs to. It looks



31

like the one that they found in my car. What is 
wrong with this pistol is that one of the cartridges 
stayed in there and wouldn’t shoot. A fellow gave 
me the gun to have it fixed. His name is Mr. Win­
ston Sims. He got killed in about a week after I 
got the gun. I didn’t tell Mr. Rainmiller where 
they would find Mr. Lewis Wilson’s watch that had 
been stolen nor where they would: find Atkin’s 
radio.

RE-DIRECT EXAMINATION.
I didn’t make Katie come up to police head­

quarters with me about one o ’clock in the morning, 
she just came. That was on the night Mr. Wilson 
had been shot about eight or eight-thirty.

Witness excused.

STIPULATION.
It is agreed that Caruthers’ car January 12, 

1935, showed a speedometer mileage of approxi­
mately forty-four thousand miles.

STATE’S REBUTTAL EVIDENCE.

MR. EDDIE B. DAVID testified as follows:
My name is Eddie B. David, I am a deputy 

sheriff of this county. I searched the car of the 
defendant, Caruthers, after his1 arrest here Jan­
uary 12, 1935, just where I found it. I found1 it 
out west of 61 on the gravel road about a quarter 
of a mile from the intersection of the gravel road 
and 61 behind the golf course, something like three



32

or four hundred yards from where Clarence II. 
Wilson was shot. I found that cap, hood there, and 
another cap with a bill on it, dark grey cap, and 
that was up under the cowling and over the heater, 
was where I found that, and in the pocket of the 
car was two handkerchiefs. They were white hand­
kerchiefs and one had been twisted on each end, and 
been folded in a three-corner shape and folded and 
twisted on each end as if it had been tied. I didn’t 
find a weapon in the car.

CROSS EXAMINATION.
Those handkerchiefs were carried to the police 

station over there along with the caps. I don’t 
know where they are now. (Tr. 166-169.)

Witness excused.

CLARENCE H. WILSON testified as follows:
My name is Clarence H. Wilson. I am sheriff 

of Mississippi County. I did not lead Miss Terry 
and Mr. Bryant directly to the cell of these defend­
ants at Tucker Farm. They were carried in there 
and told when they went in to look at the occupants 
of those cells and not say anything there at all, 
whether they could identify anybody or not. The 
girl and boy went in there. They didn’t spend 
over five minutes in the place and the girl whispered 
to me as1 .she went out the ones in the far cell are 
the ones who attacked her. None of us indicated 
which cell they were in. I can’t set the dates we 
were down there. I was shot on January 12, in 
hospital nine days. Out of my office thirty-one



33

days. It was some three or four weeks after that 
time we went down there. It was approximately 
thirty-nine or forty days I wasn’t able to drive 
a ear we went down there in.

DEFENSE SUR-REBUTTAL.

JIM X. CARUTHERS, testified that he had 
never been arrrested on any charge before this.

THEREUPON, THE COURT, ON ITS OWN 
MOTION, GAVE THE FOLLOWING INSTRUC­
TIONS TO THE JURY.

Gentlemen of the jury, the defendant. Bubbles 
Clayton, and the defendant, James X. Caruthers, 
have each of them been indicted by the Grand Jury 
of this County and District by a proper indictment, 
duly returned into open court, on the 1st day of 
April, 1935, charging them, and each of them, in 
separate indictments, with the crime of rape.

These two cases have been consolidated for the 
purpose of the trial of the cases, and in arriving 
at your verdict in the two cases, you will try them 
as if the two were being separately tried, and will 
arrive at your verdicts of guilt or of innocence in 
each of the two cases as if the Court had said they 
were being tried separately. The two indictments 
are identical in language, except for the name of 
the defendant, and therefore, the word defendant, 
as used in these instructions, will apply and will 
mean each of the two defendants, unless otherwise 
noted.



34

The charging* part of the indictment alleges 
that the said defendant in the district, county, and 
state aforesaid, that is, in the Chickasawba District,, 
Mississippi County, Arkansas, on the 21st day of 
December, 1934, did unlawfully, violently, feloniously, 
forcibly, and against her will, assault and carnally 
know, one, Yergie Terry. The words “ carnally 
know”  as used in the indictment, mean in other 
language, “ did have sexual intercourse”  with said 
person therein, forcibly and against her will.

To this indictment the defendant elects to enter 
a plea of “ Not Guilty” , and you are charged that 
by that plea he places in issue every material alle­
gation contained in the charging part of that indict­
ment, and puts upon the state the burden of proving 
such allegations to your satisfaction beyond a rea­
sonable doubt.

Rape, as defined by statute, is the carnal knowl­
edge of a female person, forcibly and against her 
will, and the punishment fixed for the violation of 
that statute is death by electrocution. Since the 
passage of that statute and a provision of the pun­
ishment for the violation thereof, our legislature 
lias provided that in every case heretofore calling 
for the punishment of death, the jury should have 
the power and at its option of fixing life imprison­
ment. Therefore, in the event you find the defend­
ant guilty of the charge contained in this indict­
ment, it will be your duty to assess his punishment 
and for that purpose you will be furnished with 
two forms in writing to the guilty form, one fixing 
the punishment of the defendant at death by elec­
trocution, and the other fixing the punishment at



35

life imprisonment. In the event your verdict is one 
of guilty in this case, you will use one or the other 
of those two forms. In the event your verdict is 
‘ ‘ Not Guilty”  in the case, you will use the third 
form submitted to you.

As you have been told, the burden of proof is 
upon the .state to make out and establish its case 
to your satisfaction beyond a reasonable doubt. 
This is a sane and proper provision of the law and 
is designed to shield and protect innocent persons 
from conviction, but is designed in no case to per­
mit one who is guilty to escape just punishment.

The phrase “ beyond reasonable doubt”  means 
that after a full and fair consideration of all the 
testimony and instructions in the ease there arises 
in your minds, either out of the evidence, or by 
reason thereof, or on account of the lack of it, a sub­
stantial doubt of the defendant’s guilt, then that is 
what the law means by reasonable doubt. It is not 
a far fetched or imaginary doubt to be conjured up 
m order to allow a guilty person to escape just 
punishment, but is a shield to protect the innocent 
from unjust conviction, and as just stated, a sub­
stantial doubt to be applied by you as I have just 
indicated. The best definition of “ a reasonable 
doubt”  is that it is a doubt that is reasonable, and 
one upon which you yourselves would be willing to 
act in any matter of highest concern to you, with 
which you may contact in the everyday walks of your 
life.

You are the sole and exclusive judges of the 
weight of the evidence and of the credibility of the 
witnesses, and in arriving at a conclusion as to what



36

weight you shall attach to the evidence of any par­
ticular witness you will take into consideration his 
or her interest in the result of the case; his or her 
conduct, demeanor, and manner while testifying as 
a witness on the stand; his or her means of know­
ing* or ascertaining the truth of the facts concern­
ing which he or she testifies. I f  you find, that any 
Avitness has sworn falsely to any material issue, you 
may entirely disregard the testimony of such wit­
ness, if you believe all of his or her testimony to be 
false, or you may give regard to that part which 
yon believe to be true or disregard that part which 
yon believe to be false You haAre no right to dis­
regard any statement which you believe to he true, 
simply because you may find the witness has sworn 
falsely as to some other matter. In other words, 
yon will accept that part of the testimony which 
you believe to be true, and disregard that part of 
the testiomny which you believe to be false.

If after a careful consideration of all the tes­
timony in the case, the instructions of the Court, the 
arguments of counsel, and your oAvn deliberation, 
you have no reasonable doubt of the guilt of the 
defendant, it is your duty to assist and to assess 
the punishment. If, on the contrary, after such 
careful consideration of all those matters, you have 
a reasonable doubt of the defendant’s guilt, it is 
your duty to gwe him the benefit of that doubt and 
to acquit.

The indictment in the case is not evidence of 
guilt, and will not be considered by you as such.

You are not to take any one instruction given



37

you as the whole law of the case, but are to take 
all of them as such.

AND THESE WERE ALL THE INSTRUC­
TIONS ASKED, REFUSED, OR GIVEN.



Argument.

1.

THE COURT ERRED IN ITS REFUSAL TO 
QUASH THE INDICTMENT# 5588, STATE OF 
ARKANSAS Y. JIM X. CARUTHERS AND 
INDICTMENT 5591, STATE OF ARKANSAS V. 
BUBBLES CLAYTON, UPON THE MOTION OF 
DEFENDANTS.

For the reasons set out in transcript page 3 
and the further reason that the defendants, Bubbles 
Clayton and Jim X. Caruthers, negroes, were denied 
the privileges and immunities' guaranteed them under 
the Constitution of the United States, the rights of 
a trial by a jury of their peers in that no negroes 
were on the Grand Jury which indicted them, nor 
the Petit Jury which tried them, this was discrim­
ination against them on account of their race and 
color and a violation of the Fourteenth Amendment 
to the Constitution of the United States and a denial 
of their rights under the “ due process clause”  
thereof.

The population of Mississippi County consists 
of two-thirds negroes. Among the ranks and files 
may be found preachers, school teachers, physicians, 
druggists, business men and farmers above the aver­
age intelligence and of good standing who could and 
would have qualified as jurors both for the Grand 
and Petit Juries of Mississippi County if they had 
been given the opportunity. It is admitted for the



39

sake of argument that the term “ peers”  refers to 
equals but in view of1 a recent decision handed down 
by the Supreme Court of the United States it goes 
farther than to say that all men are created equal 
under the law. It certainly must refer to equals 
as' they are constituted under our accepted form of 
government in society and politics.

It is true that this Court in Hicks v. State of 
Arkansas and Moore et al. v. State of Arkansas,
.......................................... , adopted the doctrine laid
down in Tillman v. State, 121 Ark. 322, and Estling 
v. State, 69 Ark. 189, that the question of colored 
persons being discriminated against on account of 
their color to serve on grand juries' which return 
indictments against or petit juries which try them 
is raised too late in a motion for new trial or on 
appeal to this Court, but the Supreme Court of the 
United States in the case of Prank Hicks, petitioner 
v. State of Arkansas, held that if the opportunity 
wasn’t presented to raise1 the question in the court 
of the first instance it might be raised on appeal 
to the state courts  ̂where the question of constitu­
tional rights vmee involved.

We urge that under the circumstances surround­
ing the trial of defendants, Bubbles Clayton and 
Jim X. Caruthers, that it would have been danger­
ous to say the least for counsel who appeared to 
defend them, to have properly raised this1 question 
in the court of the first instance. We think where 
the facts are so apparent as they are from this 
record that such prejudice and discrimination was 
■shown at the trial of appellants that this Court 
could look beyond the mere form of when and how



40

the question was raised and pass upon the substance 
and merits of this question.

It was further held in a recent decision of the 
Supreme Court of the United States in the Scotts- 
boro cases, Frank Patterson v. State of Alabama, 
that where negroes were denied a right of being- 
indicted and tried by members of their own race 
that it was a denial of the “ due process clause”  of 
the Constitution of the United States.

“ While negroes cannot complain that none 
of his race were on the jury trying him for a 
criminal offense, he has the right to insist that 
negroes shall not be intentionally excluded from 
the panel.” 1

Lee v. State, 161 Atl. (Md) 284.

“ Whether neg-roes were excluded from jury 
panel, is a question of fact, and burden of prov­
ing prejudice is on negro defendant making 
challenge.”

Davis v. State, 12 Pac. (2d) (Okl. Cr. App.).

“ Exclusion of negroes from Grand Juries 
which find indictments against them held vio­
lative of the Fourteenth Amendment.”

Hale v. Crawford, 65 F. 739.

2.

THE COURT ERRED IN REFUSING TO 
GRANT DEFENDANT’S MOTION FOR CHANGE 
OF VENUE.

The defendants, Bubbles Clayton and Jim X. 
Caruthers, filed their motion for a change of venue



41

asking that their case and trials he transferred from 
Chickasawba District of Mississippi County to Jones­
boro and alleged among other things that the minds 
of the inhabitants of Mississippi County in which 
county the causes were pending were so prejudiced 
against the defendants that a fair and impartial 
trial could not be had therein, either in Chicka­
sawba District of said county, where the causes 
were pending, or in the Osceola District thereof.

Their petition further states that they were 
colored persons and that it was reported through­
out the said county that the defendants did, over 
a period of time, systematically and with premedi­
tation, assault, hi-jack and rape a number of white 
girls. That it was commonly reported and believed; 
further throughout the county that the defendants 
did, deliberately and with intent to murder, shoot 
at the sheriff of said county and his deputy while 
these officers were engaged in an effort to break up 
such systematic hi-jacking, robbery and rape of 
white girls1. That in fact the said sheriff was by 
some person shot and dangerously wounded and that 
■ t was generally talked throughout the said county 
that the defendants committed the said act.

That all of said statements and reports were 
commonly known and believed throughout the county 
and that as results thereof race prejudice was com­
mon and intense throughout the county and that 
lynching of said defendants had been discussed. 
That it was impossible that a fair and impartial 
trial could be had in Mississippi County.

For the further reason that the conditions and 
feeling then existing generally at Blytheville, the



42

county seat of said district, and throughout the dis­
trict and county that a fair and impartial trial was 
impossible. That threats, intimidation and disorder 
prevailed generally. The Court should have granted 
the motion on the allegation therein contained and 
the affidavit of H. E. Gfoodwin and the statement of 
facts of counsel for defendants who stated in open 
court the excuses given by a number of people for 
declining to sign supporting affidavits. These state­
ments were accepted by the Court without challenge 
or question. Counsel for defendants who was a 
resident of Jonesboro and had. been appointed by the 
Court after several resident attorneys had asked 
to be excused from service on account of the feel­
ing and prejudice against the defendants generally. 
That they would suffer personal embarrassment and 
pecuniary loss if they would accept appointment as 
counsel for defendants. This was also true of the 
persons who would have subscribed to affidavits for 
change of venue. They gave the same reason for 
refusing to sign even though they expressed them­
selves as knowing that the feeling and prejudice 
within the county were of such that a fair and 
impartial trial could not be had in Misssissippi 
County. The Court did not challenge, nor the pros­
ecuting attorney, the qualification of the one sup­
porting affidavit. Neither were the facts alleged 
in said motion for change of venue denied. These 
defendants were arrested and indicted for the alleged 
shooting of the sheriff, Clarence Wilson, and other 
felonies. It was commonly known that they were 
charged with assaulting and raping other white 
women other than the prosecuting witness, Yirgie



43

Terry. All of these facts and charges were within 
the knowledge of the Court when the petition for 
change of venue was presented and the Court erred 
in overruling same, and denying change of venue.

It is true that in Cain v. State, 183 Ark. 565, 
^he Court held, that the statute required that there 
must be two supporting affidavits to the effect that 
defendant could not get a fair and impartial trial 
within the district or county because of prejudice 
in the minds of the inhabitants. This was supported 
in Adams v. State, 179 Ark. 1079, but it is further 
true that if this Court adheres to that rule in the 
instant case when it is clear that the atmosphere 
around Blytheville and throughout Mississippi 
County with reference to the defendants herein wSre’ 
of such that it wasn't necessary even for the Court 
to qualify the statements of the subscribed witness, 
H. R. Goodwin, it would be putting form before 
•substance. For the real facts as existing in the 
minds of the Court, officers and citizens that defend­
ants were guilty and therefore could not get a fair 
and impartial trial at Blytheville.

Padgett v. State, 171 Ark. 556 ;
Adams v. State, 179 Ark. 1079.

Under Const., Art. 2, paragraph 10, providing 
that the venue in criminal prosecutions may be 
changed to any other county in the district, a peti­
tion filed in the Greenwood District of Sebastian 
County, asking for a change of venue from both 
districts of Sebastian County to another county of 
the district, namely, to Scott County, which was



44

properly supported by the affidavits of two credible 
persons, as required by Crawford & Moses’ Dig., 
paragraph 3088, should have been granted and the 
venue changed to Scott County, and it was error to 
change the venue to the Fort Smith District of 
Sebastian County.

Williams v. State, 160 Ark. 587, 255 S. W.
314.

While it is not proper to move for a change of 
venue to a particular county, yet under the circum­
stances surrounding these cases it was shown that 
the same condition existed in Osceola District as 
existed in the Chickasawba District around Blythe- 
ville and that the motion mentioned Jonesboro 
because it was far removed from the scene of diffi­
culty and it was one of the districts in Craighead 
County in which, the jurisdiction would lie and it 
seems to us conclusively that the Court abused its 
discretion when it refused to allow defendant’s 
motion for a change of venue with all the above 
mentioned facts before it. See Ward v. State, 68 
Ark. 466. (It is error to arbitrarily refuse a change 
of venue because the Court knows defendant can get 
a fair and impartial trial in the county.)

Strong v. State, 85 Ark. 536:
Dewein v. State, 120 Ark. 302;
Mills v. State, 168 Ark. 105;
Sisson v. State, 168 Ark. 783;
Spurgeon v. State, 160 Ark. 112.



45

3.

THERE WAS NO SUFFICIENT EVIDENCE 
OFFERED BY THE STATE TO SHOW THAT 
EITHER OF THE DEFENDANTS WAS GUILTY 
OF THE CRIME ALLEGED TO HAVE BEEN 
COMMITTED AND FOR THE COMMISSION OF 
WHICH THEY WERE TRIED.

The State relied mainly upon the evidence of 
Vergie Terry, prosecuting witness, who stated that 
the night was dark, they were on the highway and 
that the men who assaulted her wore masks. (Tr., 
p. 74.) That while the larger of the two men, whom 
she identifed as Bubbles Clayton, forced her to get 
into the back seat of the car and, lie down on the 
seat, that he closed the door and her means of iden­
tifying him was that two cars passed and reflected 
sufficient light on his face for her to identify him. 
(Tr., p. 88.) It was admitted by both Vergie Terry 
and the other state’s witness, Wiley Bryant, who 
wasi with her at the time, that it was a dark night 
in December, and that they were on a lonely high­
way and that the lights of their car were extin­
guished and that the only other light that they had. 
during the time the outrage was committed was a 
light from two automobiles, he claims, but Vergie 
Terry claims one automobile, which made two trips 
and the moon that came out occasionally.

Vergie Terry further testified that the larger 
man, or Bubbles Clayton, kept her in the back of 
the car from twenty (20) to thirty minutes (30), and 
that the small man, whom she idenitfied as Jim X. 
Oaruthers, kept her in the car for fifteen (15) min-



46

utes. It is clear that she was honestly mistaken 
about the parties who raped her having: kept her 
in the car in the act of having sexual intercourse 
for thirty and fifteen minutes respectively. She 
could have been just as honestly mistaken about 
the identification of the parties as she was about the 
time in the event. The darkness of the night, the 
insufficiency of light, the excitement and duress 
under which she must have been, the men who com­
mitted the outrage having been masked were all 
circumstances in fact which go to show it was well 
nigh impossible for her to have identified these two 
men as she claimed that she did when she saw them 
at Tucker farm in a cell.

The identification was' of such that cannot be 
called a legal identification. There were only two 
negroes in the cell and they were so placed when 
Yergie Terry and "Wiley Bryant went in to identify 
them, that it wasn’t a matter of picking them out 
from other persons but just a question or yes or 
no.

Vergie Terry further testified that while she 
was being outraged by Jim X. Caruthers that no car 
passed at all and that her means of identifying him 
was through moon beams which would come out 
from behind the clouds at intervals. Certainly for 
her to have been able to have profited by any of 
the light reflected by the moon the moon would have 
had to have been on an angle with the door or 
the windows of the car and on December 21, 1934, 
the moon from 8:30 to 9:15, taking Yergie Terry’s 
testimony as the basis of this argument, would not



47

have been .at such an angle to a car parked north 
and south; that is headed north and the back part 
south, for the moon beams to have reflected suffi­
cient light within the south part of the car or the 
back seat for her to have observed the features of 
a man in the act. of raping her and whom she claims 
was with her for fifteen minutes, that she could 
positively identify three months later.

Wiley Bryant testified that they came up to 
the car at 8:30 or 8:35 (Tr. p. 8); that the car 
was parked so as to head north (Tr., p. 8), and that 
the little man was watching him about fifteen min­
utes. (Tr., p. 39.)

The Court’s attention is further called, to the 
fact that the testimony shows that the two defend­
ants, Bubbles Clayton and Jim X. Caruthers, had 
lived in Blytheville, a small city of less than 10,000 
inhabitants; that the crime is alleged to have been 
committed on December 21 and that they had been 
openly in and out by the officials and people of 
Blytheville from December 21 until January 13, 
when they were held for shooting the sheriff and 
committing other crimes; that they were taken from 
Osceola to Memphis and from Memphis to Tucker 
Farm and not until it was clear that they could 
not be convicted for the crime of shooting the sheriff 
did the question of the alleged rape of Vergie Terry 
come up.

While the alibi testimony from the several wit­
nesses who claim that on the night that the alleged 
rape was committed the defendants, Bubbles Clay­
ton and; Jim X. Caruthers, in company with six



48

others were at a card game and went to the line of 
Missouri and Arkansas for whiskey, we state that 
while this alibi is vague in some instances as to 
the time and date, yet there is just enough rea­
sonableness in it to show that these defendants 
were at another place at the time that prosecuting 
witnesses fix them at the scene of the alleged crime. 
We submit that these seven negroes who testified 
g'ave just the kind of testimony of an alibi that is 
worthy of belief for counsel who represented defend­
ants seems not to have conferred with any of them 
and they told their stories fixing their dates and 
places in their own simple language in a way that 
credence could be given to their statements.

We submit that the verdict is contrary to the 
evidence and to the law.

“ On appeal a verdict of guilty must be 
tested by the strength of the state’s evidence.”

Smith v. State, 169 Ark. 913.

“ In testing sufficiency of evidence to war­
rant conviction, evidence must be viewed in a 
light most suitable to the state.”

Campbell v. State, 170 Ark. 936.

“ It devolves upon the state in a criminal 
case to establish the accused’s guilt by legal 
testimony and substantial character, and mat­
ters of conjecture merely are insufficient.”

Hogan v. State, 170 Ark. 1113.

“ A burden is on the state to prove every 
material fact charged in the indictment and 
involved in commission of crime beyond reason-



49

able doubt; little suspicion of guilt not being 
sufficient. ”

Ferrel v. State, 165 Ark. 541.

‘ ‘ State must establish guilt of defendant 
beyond a reasonable doubt; defendant is not 
required to prove facts establishing guilt.”

Griffin v. State, 169 Ark. 342.

4.
THE COURT ERRED IN PERMITTING 

OVER THE OBJECTIONS AND EXCEPTIONS 
OF THE DEFENDANTS EVIDENCE TO GO TO 
THE JURY ABOUT OTHER ALLEGED CRIMES 
OF THE DEFENDANTS OR CIRCUMSTANCES 
SURROUNDING SUCH ALLEGED CRIMES OR 
ALLEGED ADMISSIONS OR STATEMENTS OF 
DEFENDANTS WITH REFERENCE TO SUCH 
OTHER ALLEGED CRIMES.

Defendants were indicted and arraigned for 
committing a rape upon the person of Virgie Terry 
alleged to have been committed on the 21st day of 
December, 1934, in the Chickasawba District of 
Mississippi County, Arkansas. But the Court per­
mitted the prosecuting attorney to use most of 
the time for cross examination in propounding ques­
tions tc the defendants with reference to the shoot­
ing of Sheriff Wilson and other robberies and 
assaults and rapes on various and sundry white 
women supposed to have been committed around 
and about Blytheville in Chickasawba District of 
Mississippi County. This was done for the pur­



50

pose of creating such a sentiment and such an 
unwholesome atmosphere in and about the court 
room,, as well as with the jury, that it would be, 
impossible for defendants to obtain a fair trial. 
The state of the- public, mind at that time was of 
such that any further evidence- of defendants’ guilt 
of other crimes had the tendency to create a situa­
tion that was well nigh uncontrollable by the officers, 
and the Court.

EVIDENCE OF OTHER CRIMES— ADMIS­
SIBILITY.

“ In a prosecution for murder in first 
degree it was prejudicial to admit evidence of 
other crimes committed by defendant which had 
no connection or relation to the crime for which 
the defendant was being tried.”

William v. State, 183 Ark. 870.

“ In a prosecution for murder, it was error 
to permit the state as original evidence to prove 
that the accused had been convicted and sen­
tenced to the penitentiary on the crime of rob­
bery since a proof of the latter crime does not 
tend to show a system to commit other crimes 
nor a motive or intent to commit murder.”

Davis v. State, 176 Ark. 602.

“ Evidence of a crime is admissible to prove 
specific crime charged when it tends to estab­
lish a motive or guilty knowledge on the part 
of the accused or shows it to be a part of the 
same criminal plan, a scheme as the main



offense. It being necessary that some relation 
to or connection with the main offense exists.”

Middleton v. State, 162 Ark. 530;
Ware v. State, 181 Ark. 555.

5.

THE COURT ERRED IN REFUSING TO 
PERMIT THE JURY TO RETIRE FOR THE 
NIGHT OF APRIL 9, 1935, WHEN THEY
REPORTED) AFTEEHAVINGBEEN TOGETHER 
FOR TWO DAYS THAT THEY WERE HOPE­
LESSLY DIVIDED AS TO THE PUNISHMENT 
AND ASKED THAT THEY BE PERMITTED 
TO RETIRE FOR THE NIGHT AND RETURN 
FOR FURTHER DELIBERATION THE FOL­
LOWING DAY.

The physical and mental condition of the jurors; 
the duress under which they were laboring because 
of the spirit of mob violence pervading the court 
room and the city of Blytheville together with the 
County of Mississippi made it impossible for them 
to properly deliberate under the circumstances. The 
cause of the defendants was highly prejudiced there­
by as the physical and mental exhaustion of the 
jurors at that particular time prevented them from 
deliberating further, but because of the action of 
the Court such verdict was forced upon them as 
they felt would be acceptable by the Court. The 
further fact that the jury stated when they returned 
to the court room at 10:30 +hat there was a dis­
agreement with regard to the punishment was a dis­
closure as to what had taken place in the jury room



52

was prejudicial error as to the defendants and a 
mistrial should have been declared on the Court’s 
own motion.

Potter v. State, 42 Ark. 29:
State v. Ward, 42 Ark.;
Whitmore v. State, 42 Ark. 271, under 

Const., Art. 2, paragraph 8;
Vaughn v. State, 57 Ark. 1;
McFall v. State, 66 Ark. 16;
Johnson v. State, 68 Ark. 401.

We respectfully submit that for errors herein 
set out that the judgments in the above cause should 
be reversed.

John E. Thompson,
Jno. A. Hibbleb,

Attorneys for Appellants.



IN THE

SUPREME COURT OF ARKANSAS.

BUBBLES CLAYTON and JIM X. CARUTHERS,
Appellants,

against

STATE OF ARKANSAS,
Appellee.

A ppeal fbom the Circuit Court of the Mississippi 
County, Chickasawba District.

Hon. Neill K illough, Judge.

SUPPLEMENTAL BRIEF FOR APPELLANTS.
/

JOHN R. THOMPSON, 
JNO. A. HIBBLER,

Attorneys for Appellants.
Charles H. Houston,
Carol K ing,

of Counsel.

GALLO & ACKERMAN, Inc., 142 Liberty Street, Telephones— Rector 2-5356-7





IN THE

SUPREME COURT OF ARKANSAS.

B ubbles Clayton and J im  X. Cab,ethers,
Appellants,

against

State of Arkansas,
Appellee.

A ppeal prom the Circuit Court op the Mississippi 
County, Chickasawba District.

SUPPLEMENTAL BRIEF FOR APPELLANTS.

Statement.

This is an appeal from a death sentence imposed for 
the rape of a white woman upon two indigent Negro 
defendants for whom the trial court appointed counsel.

The conviction should be reversed and the cause 
remanded, for the reasons



2

(1.) That the evidence was insufficient in that

The evidence of the alleged rape was incredible,

The identification of these defendants was un­
satisfactory and prompted;

(2.) That the court committed prejudicial error in 
permitting the prosecuting attorney to question de­
fendants on other unrelated crimes, and in permitting 
evidence to be introduced regarding such crimes.

The Evidence Was Insufficient.

Appellate courts have long recognized the danger 
of verdicts in rape cases based not on evidence but 
on “ passion or prejudice” . (Morris v. State, 9 Okla. 
Crim. 241, 253; People v. Fitsgibbons, 343 111. 69, 71.)

‘ ‘ The courts have repeatedly approved Sir Mat­
thew Hale’s statements in regard to the crime of 
rape that ‘ it must be remembered, that it is an 
accusation easily to be made and hard to be 
proved, and harder to be defended by the party 
accused, though never so innocent;’ and that we 
should ‘ be the more cautious upon trials of of­
fenses of this nature, wherein the court and jury 
may with so much ease be imposed upon without 
great care and vigilance; the heinousness of the 
offense many times transporting the judge and 
jury with so much indignation that they are over 
hastily carried to the conviction of the person ac­
cused thereof by the confident testimony some­
times of malicious and false witnesses’ ” . (52 C.



3

J. 1087, quoting from 1 Hale P. C., pp. 635 and 
636.)

The first statement of Sir Matthew Hale, appear­
ing above, has been approved in the following among 
other cases where the conviction for rape was re­
versed.

People v. Kazmierczyh, 357 111. 592, 192 N. E.
657;

Logan v. State, 66 Tex. Cr. E. 506, 148 S. W.
713;

Morris v. State, 9 Okla. Cr. E. 241,131 P. 731;
State v. Goodale, 210 Mo. 275,109 S. W. 9.

“ Courts are especially charged with the duty to 
carefully examine the evidence in rape cases”  (People 
v. Kazmierczyh, supra, at p. 597). Where the evi­
dence is not sufficient to remove all reasonable doubt 
of the defendants ’ guilt the courts should reverse con­
victions.

The Evidence of the Alleged 
Rape Was Incredible.

The prosecution introduced the evidence of three 
witnesses in chief: (1.) Wiley Bryant, a young man 
who was with Vergie Terry on the night of the alleged 
rape but did not see it, and so did not and could 
not testify to the actual raping; (2.) Arch Lindsey, 
Chief Deputy Sheriff of Mississippi County, Arkan­
sas, who had arrested the two defendants for an assault 
on Sheriff Wilson and testified about nothing but an 
identification of them by Bryant and Mrs. Terry made



4

in the death house at the Tucker Farm Penitentiary 
where the two Negro defendants were being held for 
such assault, and (3.) Vergie Terry, the prosecutrix, 
who testified to having been raped by each of the 
defendants in Bryant’s car on the night of December 
21, 1934.

Mrs. Terry testified to the alleged raping, in sub­
stance, as follows: She was a married woman nine­
teen years of age, was living separate from her hus­
band, and kept company with other men. On the 
night of December 21, 1934, she was out with Bryant 
in his car. While the car was parked after dark, 
about 8:30, near Sawyer’s Graveyard, Blytheville, with 
the lights out, two masked Negroes came up, flashed 
lights on them, told them “ to stick them up” , and, 
without waiting for compliance, fired a shot through 
the door of the oar. The Negroes forced both Mrs. 
Terry and Bryant out of the car. At the point of 
a pistol they ordered Bryant to lie down in a ditch 
about ten feet from the car. The larger Negro then 
forced Mrs. Terry back into the car. While the 
smaller Negro (identified as Caruthers) guarded 
Bryant, the larger one (identified as Clayton) raped 
Mrs. Terry on the back seat of the car. The Negroes 
then changed places, and while the larger one guarded 
Bryant the smaller one raped Mrs. Terry in the car. 
Bryant then got in the car and sat behind the wheel 
and Mrs. Terry got into the front seat of the car. 
On the instructions of the Negroes they waited about 
five minutes, after which Bryant drove Mrs. Terry 
home. When they arrived in town they inquired of 
Brewster, a police officer, for Arch Lindsey, the Chief



5

Deputy Sheriff. They did not see Lindsey but talked 
to “ the night fellow”  and undertook to tell him what 
had happened.

This is substantially the prosecution’s case. Mrs. 
Terry alone testified to the alleged rape. Bryant, her 
escort that night, corroborated the story to the extent 
of saying they were stopped by the two Negro de­
fendants and she was alone in the oar with one after 
the other of them, while he was being guarded in the 
ditch, but expressly stated he did not know what went 
on in the car with Mrs. Terry.

Let us see what prosecuting witnesses were con­
spicuously absent.

There was no medical expert called to testify to 
any examination of Mrs. Terry, and obviously no such 
examination was ever made.

No witness who heard any outcry or to whom any 
complaint was made took the stand, not even the 
“ night fellow.”  Both Bryant and Mrs. Terry testi­
fied that two cars had passed the parked car during 
the first of the alleged rapings. Bryant testified that 
he ‘ ‘ didn’t yell ’ and Mrs. Terry likewise testified 
that she “ didn’t cry out when either of these cars 
passed.”  Bryant gave no explanation; Mrs. Terry 
said it would not have done any good and added when 
it was suggested to her by the Prosecuting Attorney’s 
question that she was frightened.

“ Duty of woman injured, under ordinary cir­
cumstances, or of her friends, to obtain prompt 
medical advice; and the omission to do so, in cases 
of alleged rape, is a fact which subjects the prose-



6

cution to discredit” . (Wharton, Criminal Law 
[7th Ed.], 971, citing authorities.)

“ Failure to make outcry may be considered, 
as may also the failure to make complaint, in de­
termining the question of resistance and consent 
on the part of prosecutrix.” * (Wharton, Criminal 
Law [7th Ed.], 997.)

*“  Failure to make outcry, if the place where 
the act alleged to have been committed was 
such that it was possible she might have been 
heard; concealing of the injury for any consid­
erable time after she had opportunity to com­
plain—these and like circumstances carry a 
strong but not conclusive, presumption that 
her testimony is false and feigned.”  (Citing 
authorities.)

“ It is not to be denied, that the fact that she 
made no violent outcry, and the further one that 
she made no complaint of the injury for several 
days, are circumstances strongly in favor of the 
assumption of the prisoner’s innocence.”  (State 
v. Cross, 12 Iowa 66, 69-70.)

“ If the place where the act is alleged to have 
been committed was near to persons by whom she 
might probably be heard and yet she made no out­
cry—these and the like afford a strong though 
not conclusive presumption that her testimony 
was feigned.”  (State v. Goodale, 210 Mo. 275, 290.)

Brewster, the police officer of whom Bryant asked 
the whereabouts of Arch Lindsey when he drove Mrs. 
Terry back to town, was not called. The “ night fel-



7

low”  to whom Bryant had claimed he had complained 
likewise was not called.

No woman friend of the prosecutrix stepped forward 
to testify to any complaint Mrs. Terry had made or 
give any evidence as to her physical condition.

Finally, there is not a scintilla of evidence in the 
record that Mrs. Terry even complained to Bryant. 
Apparently both of them sat in silence for the five 
or eight minutes they waited before starting back to 
town, without her telling him what had occurred and 
without his asking or expressing the slightest solici­
tude or anxiety.

There was no evidence introduced of any after 
effects of the “ double rape” ; no emotional or mental 
disturbance and no physical laceration, pain or suffer­
ing. There was no evidence of injury to her clothes 
or of stains on her slip or her dress or on the uphol­
stery or floor of the car.

“ And the same is true, as to the fact that her 
garments were not torn, and bore no evidence of 
injury. If nothing of this kind appears the jury 
should, from the peculiar character of the case, 
hesitate long before conviction.”  (State v. Cross, 
12 Iowa 66, 70.)

There is not one word in either Bryant’s testimony 
or Mrs. Terry’s testimony that there were any after 
effects of the alleged rape. From the moment he and 
Mrs. Terry got back into the front seat of the car, 
the only reference at all to the supposed rape was 
Bryant’s testimony of looking for Sheriff Lindsey and 
making a report to the “ night fellow” . There is lit-



8

erally not one word more, from him or from any one 
else, as to how Mrs. Terry looked or acted after the 
“ terrible experience”  she claims to have had.

Quite aside from the missing witnesses and the man­
ifest gaps in the testimony of those witnesses who did 
testify, certain physical objects intimately connected 
with the alleged crime were not produced. Thus, 
Bryant ’s car in which the raping was alleged to have 
occurred with the bullet hole through the door was 
not brought to court or otherwise shown to the jury 
with the explanation that it had been burned.

The clothes which Mrs. Terry wore on the night of 
the alleged assault which would, if torn or stained, 
have afforded the most convincing physical proof of 
the crime, were likewise not produced.

“ Evidence of the condition of the clothing of 
the prosecutrix shortly after the alleged offense, 
as that it was torn, disarranged, or bloody, is ad­
missible, and the clothing itself, after proper iden­
tification, may be exhibited as evidence.”  (52 0. J. 
1073, citing authorities.)

The Supreme Court of Minnesota, in the case of 
State v. Cowing, 99 Minn. 123, 9 Am. & Eng. Ann. 
Cases 566, in setting aside a conviction of rape laid 
great stress on the mere fact that the clothing had 
been washed. The Court said:

‘ ‘ While not without some corroboration, the tes­
timony of prosecutrix is aided most largely by that 
of her sister; but that corroboration is to be 
weighed in connection with the fact that she and



9

her sister, by washing the skirt, which, if her tes­
timony were true, would probably have borne evi­
dence of blood and semen, effectually destroyed 
the best possible evidence under the circum­
stances.”

There is not even any testimonial evidence as to 
the condition of the clothes. Strangest of all, the 
masks worn by the Negroes which are alleged to be 
in the hands of the police are never introduced in evi­
dence. Only in the question put by the prosecuting 
attorney to Caruthers on cross examination, and of 
which he denies knowledge, are the masks even de­
scribed in any detail.

The Identification of These 
Defendants Was Unsatisfactory.

Two factors taken together served to render iden­
tification difficult or perhaps impossible in this case. 
These were (1.) the absence of light and (2.) the masks 
on the assailants.

(1.) Both Bryant and Mrs. Terry testified that the 
lights on their car were out and that the Negroes 
came up to their car about 8 or 8 :30 on a cloudy De­
cember night. Both said the moon came out from 
the clouds “ every once in a while” . When the flash 
lights were first flashed on her Mrs. Terry says she 
“ was blinded” , and could not see the Negroes. At 
no time when the flashlights were on was she able to 
see the Negroes plainly according to her own testi­
mony. Both Bryant and Mrs. Terry testified that two



10

cars passed with headlights on while the larger Negro 
was in the car with Mrs. Terry. Bryant admitted that 
the ditch bank and his car had been between him and 
the passing automobiles. Furthermore, both cars 
passed while the big Negro was in the car with Mrs. 
Terry, so that there were no car lights to help her 
identify the small Negro or to help Bryant identify the 
big one. No car passed while the little Negro was in 
the car.

(2.) The darkness would have made later identifi­
cation difficult enough but in addition the Negroes 
wore masks. Bryant never saw either of them with­
out the masks. Both defendants at all times had their 
faces covered and he “ didn’t see their faces” . About 
the only difference between them he noticed, when he 
was out on the road with both, was “ that one was 
bigger than the other” . While the small Negro was 
standing over Bryant in the ditch, Bryant was lying 
with his “ face down” , but he added, “ I raised my 
head up and looked at him” . That Bryant really did 
not see the two Negroes’ faces at all was plainly 
brought out at the end of his cross-examination by 
the following questions and answers:

“ Q. Did this boy have this mustache down there 
(at Tucker Farm)?

A. Yes, sir.
Q. You don’t know whether he had it this night 

out there or not; you didn’t see any part of his 
face, did you?

A. No, sir.
Q. Didn’t see that mouth of his, could you?



11

A. No, sir.
Q. And didn’t see that kinky head of his, either, 

did you?
A. No, sir; I didn’t.
Q. You didn’t see that flat nose and mouth of 

this little boy, did you?
A. No, I didn’t.
Q. You couldn’t? A. No, sir; I couldn’t.”  
(Transcript, p. 41. Note: Pagination of trans­

cript varies and references to pages may not be 
the same in all copies.)

The main point that Mrs. Terry relied on to support 
her identification was her testimony that the Negroes 
raised their masks during the acts of intercourse. 
Men who had been so careful to hide their faces dur­
ing the commission of a crime curiously enough un­
covered them during just that critical time. Mrs. 
Terry forgot to mention this until a leading question 
was asked suggesting that answer :

“ Q. While the act was going on, tell the jury 
whether or not the Negro was masked?

A. Yes, sir.
Q. What did he do with his mask?
A. He pushed it up on his forehead.
Q. Did you have opportunity, in the full glare 

of that light to see and know him?
A. Yes, sir.
Q. When the act of intercourse was going on 

with the other man, what did he do with his mask? 
A. He did the same thing.
Q. Pushed it up on his forehead?
A. Yes, sir”  (Tr., pp. 52-3).



12

Once more we repeat there was no “ full glare”  of 
any car light while the second act of intercourse was 
going on.

Both Bryant and Mrs. Terry testified that there was 
nothing unusual about the way either of the Negroes 
spoke.

Wharton, in his Criminal Evidence has said:

‘ ‘ Caution should be exercised by a jury in weigh­
ing evidence of ‘ identity’ . ..  under conditions that 
generally surround crime, where concealment is 
often attempted, and effacement is frequent, and 
where testimony is often destroyed or simulated, 
identification is not only difficult, but sometimes 
impossible. Again, a predisposition to connect an 
accused with a crime often leads to fancied re­
semblances and witnesses give color to their tes­
timony according to the force of such prejudg­
ment. The clearest impression of the senses are 
often deluding and deceptive to a degree that 
renders them worthless when tested by the actual 
facts. Often, grievous and irreparable wrongs are 
inflicted by reliance upon impressions that are 
frequently so valueless as to demand their com­
plete rejection as a basis of scientific accuracy”  
(p. 1637, citing many authorities).*

And the same author says further:

“ Mindful of how easily opinions as to identity 
are affected by prejudice, it is necessary to con-

*Convicting the Innocent, by Edwin B. Borchard, containing a col­
lection of sixty-five criminal prosecutions and convictions of defend­
ants whose innocence was later established, makes manifest the danger 
of convictions upon flimsy identifications.



13

elude, when the opinions of witnesses are relied 
upon as authority, that the two great constituents 
of reliability are: (1) familiarity with the person 
in controversy, and (2) freedom from personal or 
party prejudice”  (p. 1777).

Neither one of these “ two great constituents”  was 
present in the instant case. (1.) Bryant and Mrs. 
Terry had, as each testified, not seen either of the 
defendants before the alleged rape and consequently 
were not familiar with the persons in controversy. 
And (2) the prejudice against the defendants, Negroes 
charged with assaulting a sheriff, is manifest through­
out the record.

Identifications in rape cases have in a number of 
instances been looked upon by appellate courts with 
suspicion. Thus in setting aside a conviction of as­
sault with intent to rape the Supreme Court of Illinois 
said:

“ There is also some question about the identifica­
tion of the plaintiff in error by Mrs. Hewitt. When 
plaintiff in error was brought back to Amboy for 
a preliminary hearing the day after the assault 
the husband of the prosecuting witness saw him. 
He was with his wife when the plaintiff in error 
was brought into the office of the magistrate, and 
as he was brought in the husband of the prosecut­
ing witness said, ‘He is in the room now’. He 
admitted making this statement but claimed that 
Mrs. Hewitt had recognized him before that; but 
if so, there was no reason for his pointing out the 
plaintiff in error and for that reason the identifi­
cation of plaintiff in error by the prosecuting wit-



14

ness is not as satisfactory as if she had picked 
him out from a number of others and recognized 
him without any assistance or beyond any ques­
tion as her assailant. It was a dark night and the 
prosecuting witness was assaulted by a person she 
had never seen before.”  (People v. Allen, 279 
111. 150, 156-7, our italics.)

After emphasizing the difficulty of identifying an as­
sailant seen only at night in the dark the Supreme 
Court of Idaho reversed a conviction for rape because 
of the unsatisfactory character of the identification. 
The court said in part:

“ The only evidence tending to identify appellant 
as her assailant is her testimony that he is the 
man who assaulted and outraged her.

‘ ‘ In all communities where a heinous crime, like 
the one under consideration, committed upon a 
young and unoffensive girl, becomes the subject 
of inquiry there is more or less excitement, and 
it naturally follows that where a person is charged 
with such a crime, the prejudice of the community 
is aroused. Therefore great caution should be 
used to avoid a miscarriage of justice, and the 
identity of the defendant should be established 
beyond a reasonable doubt” . (State v. Roberts, 
32 Idaho 96, 98.)

In State v. Thomas (193 Iowa 1004, 188 N. W. 689), 
a prosecution for assault with intent to commit rape, 
the defendant’s face was covered. It was not masked 
as in this case but merely covered with a veil. In 
reversing the conviction the court recognized that the 
verdict of a jury should ordinarily be accepted but



15

added ‘ ‘ the rule is one of less imperative force in a 
criminal than in a civil case” .

‘ ‘ One of the essential facts to sustain a conviction 
in a criminal case is the identification of the ac­
cused as the offender; and this must he shown 
beyond a reasonable doubt. Such a showing is not 
to be found in this record, and the verdict cannot 
be permitted to stand”  (1024).

The Identification 
Was Prompted.

The identification of the defendants at the trials 
depended wholly on their prior extrajudicial iden­
tification by Mrs. Terry and Bryant in the death house 
at Tucker Farm. The circumstances surrounding the 
identification at Tucker Farm thus became of prime 
significance.

When Mrs. Terry and Bryant made that identifica­
tion the two defendants were set off by themselves in 
one cell. There had previously been a third Negro 
in the cell with them but he had been taken out, placed 
in another cell and forced to get in bed and cover up 
his head, so that there could be no possibility of mis­
taken identity when Sheriff Lindsey brought the two 
prosecuting witnesses down to make the identification. 
Furthermore, on their way out to the penitentiary 
Bryant, Mrs. Terry and the Sheriff, to quote the 
Sheriff, “ talked about it some” . They “ could have”  
discussed the Negroes by name and how they were 
located and arrested.



16

These two Negroes Clayton and Caruthers, had been 
arrested for a wholly different crime, the assault on 
Sheriff Wilson, for which obviously some Negro was 
to be made to pay and pay dearly. It was a curious 
coincidence that these two defendants who had been 
arrested for one crime that had aroused great feeling 
were identified when they were alone together in jail 
for having perpetrated a wholly unconnected crime.

The Arkansas law is plain that extrajudicial iden­
tifications are not admissible over objection (Warren 
v. State, 103 Ark. 165). Presumably this rule indi­
cates that the Arkansas courts place little weight on 
such identification. However, in the instant case there 
was no objection and consequently we do not seek to 
review the admissibility but only the force of such 
identification. The extrajudicial identification which 
was practically the only identification of the defend­
ants, for the later identification at the trial depended 
wholly upon it, was, we submit, under all the circum­
stances including Sheriff Lindsey’s prompting, with­
out probative force.

In the Allen case (supra) the court placed no cred­
ence in an identification which the woman made with 
her husband’s assistance. It is plain from the present 
record, despite his effort to get away from this fact, 
that the identification was made with the help of 
Sheriff Lindsey. In the Allen case, as in the instant 
case, there was no “ line up”  and the Illinois Supreme 
Court consequently regarded the identification as “ not 
as satisfactory as if she had picked him out from a 
number of others.”  That identifying a defendant in



17

a rape case from a line-up is the appropriate method 
has been generally recognized.

“ A practice that is quite common with police 
officials, in cases where it is not certain whether 
the person arrested is the one who committed the 
crime, is to have the prosecutrix point out from 
a number of men the particular one who commit­
ted the crime.”  (22 B. C. L. 1200-1, Title Bape.)

In the recent decision of the Supreme Court of 
Alabama in Petersen v. State (227 Ala. 361, 367), the 
court approved the prosecution’s evidence “ that the 
witness had looked at many negroes”  after effort had 
been made to show that the prosecutrix was mistaken 
in her identification of her assailant.

In an earlier Alabama rape case the court had simi­
larly said:

“ It was entirely competent to show that she 
fixed upon these men as the criminals, out of a 
number who had been brought before her. To be 
able to select one or more out of a multitude, or 
out of any greater number, is one of the ordinary 
tests of the correctness of the identification; and 
the fact that the prosecutrix did this goes to show 
that, although she may have expressed an inaccu­
rate description, she evidenced no hesitation or un­
certainty in pointing out the defendants when they 
and others were brought before her.”  (Cotton v. 
State, 87 Ala. 75, 6 S. 396.)

In Bruce v. State (31 Tex. Cr. B. 590), a girl who 
had been outraged described her Negro assailant. She 
denied the identity of the first man arrested and he



18

was later released. The defendant was then arrested. 
A motion to exclude evidence of an extrajudicial iden­
tification was denied, the court saying:

“ The appellant, with six or eight other negroes 
stripped of hats and coats, were formed in line in 
the jail and Ella Sherill was brought in, and at 
once identified appellant. They were then rear­
ranged with hats and coats on, and again the ap­
pellant was identified by the prosecutrix and her 
sister.”

To the same effect:

State v. Butler, 114 S. C. 433, 103 S. E. 762;
State v. Johnson, 85 S. C. 265, 67 S. E. 453 ;
Reg. v. Jenkins, 1 C. & K. 536, 47 E. C. L. 536, 

174 Reprint 927.

How different the procedure was in the instant case 
where the witnesses were brought to the jail by the 
Sheriff who had arrested the defendants, and who if 
he did not point them out, had spoken of them by 
name on the way to the penitentiary and had walked 
with the witnesses in the direction of the cell where 
defendants alone were incarcerated.

The situation presented here is not unlike the situa­
tion presented by the identification in the court room 
of a defendant. Of such an identification the Supreme 
Court of Connecticut has said:

“ An identification of an accused made publicly 
for the first time by a witness in court when 
there presumably have been many opportunities 
for the witness to have seen the accused and have



19

heard him spoken of by a given name, may be 
open to question” . (State v. Frost, 105 Conn. 
326.)

We submit that in the instant case the identifica­
tions are thus open to serious question.

Both Clayton and Caruthers took the stand in their 
own behalf. Both denied having seen Mrs. Terry and 
Bryant before the identification on January 12, 1935, 
and specifically denied having held up Bryant’s car 
or raped Mrs. Terry on December 21, 1934 or at any 
time, They swore to their having played cards and 
later being up to the state line to purchase liquor on 
the night of the alleged raping. Four Negroes swore 
to having played cards with the two defendants on a 
night shortly before Christmas and their having gone 
to the state line with them. These witnesses with 
extraordinary frankness were unwilling to swear that 
it was surely the night of December 21.

As a final indicator of the dubiousness of the Peo­
ple’s case is the fact that it was in very large part 
brought out by answers to leading questions and not 
by an independent narrative on the part of the wit­
nesses.

“ It is the duty of the reviewing court to give a 
careful, independent consideration to the evidence, 
giving due weight to the fact that the court or 
jury saw and heard the witnesses, and if after 
such consideration the court does not regard the 
evidence in the record, by reason of its improba­
bility, unreasonableness, unsatisfactory character, 
or any other reason arising from a consideration



20

of the evidence, to be sufficient to remove all rea­
sonable doubt and create an abiding conviction 
that the defendant is guilty, it is the duty of the 
court to reverse the judgment of conviction.”  
(People v. Nemes, 347 111. 268, 179 N. E. 868 
[1932].)

The Court committed prejudicial error in permit­
ting the prosecuting attorney to question defendants 
on other unrelated crimes, and in permitting evidence 
to be introduced regarding such crimes.

It is an elementary principle of law that on the 
trial of a defendant for crime he cannot be convicted 
by proving that he committed certain other unrelated 
crimes at different times and places.

“ The most guilty criminal may be innocent of 
other offenses charged against him, of which, if 
fairly tried, he might acquit himself. From the 
nature and prejudicial character of such evidence 
it is obvious that it should not be received unless 
the mind plainly perceives that the commission 
of the one tends by a visible connection to prove the 
commission of the other by the prisoner. If the 
evidence be so dubious that the judge does not 
clearly perceive the connection, the benefit of the 
doubt should be given to the prisoner, instead of 
suffering the minds of the jurors to be prejudiced 
by an independent fact, carrying with it no proper 
evidence of the particular guilt.”  Whitefield, J., 
in Dabney v. State, 82 Miss. 252, quoting Agnew, 
J., in STiaffner v. Commonwealth, 72 Pa. 60.

See cases collected in annotations, 62 L. R. A. 314; 
48 L. R. A (N. S.) 236.



21

In the instant case where the two defendants were 
charged with alleged rape on Mrs. Vergie Terry, De­
cember 21, 1934, near Sawyer’s Graveyard, Blythe- 
ville, the Prosecuting Attorney spent most of his time 
on cross-examination of the defendants in accusing 
and questioning them as to other entirely distinct and 
unrelated crimes. Sample questions to the defendants 
by the Prosecuting Attorney conducting the cross- 
examination follow:

To the defendant Bubbles Clayton (first on the 
stand):

“ Part of your occupation has been stealing, 
hasn’t it?”  (Tr., p. 76.)

“ You hijacked Mr. Prank and Miss Hutchins 
on November 18th and shot her, didn’t you?”  
(Tr., 76.)

“ You shot her (Miss Hutchins) in the arm, 
didn’t you?”  (Tr., 76.)

“ You say you never steal?”  (Tr., 77.)
“ * * * Bubbles, you know they had a big lot of 

robberies down here about the time of this hap­
pening, didn’t they, and before it?”  (Tr., 77.)

“ After you were arrested and in custody, didn’t 
you tell the officers on a number of occasions where 
the stolen articles were which they could find, 
and which they recovered and sent back to own­
ers?”  (Tr., 77.)

“ You heard about Mr. Wilson getting, Mr. Wil­
son being shot in the eye (January 12, 1935). 
You didn’t do it, of course, did you? Were you 
guilty of shooting Mr. Wilson?”  (Tr., 78.)

“ I will ask you if you didn’t stick him up, and 
then tell Mr. Lindsey where he could find his 
watch and other stuff?”  (Tr., 82.)



2 2

“ You are a Negro man and in there charged 
with shooting the sheriff of this county, who had 
his deputy with him, Mr. Arch Lindsey, and you 
knew that, didn’t you, charged with shooting the 
law!”  (Tr., 83.)

And to the defendant Jim, X. Caruthers (later on the 
stand):

“ Your car was parked out there right where 
Sheriff Wilson got shot (January 12, 1935)!”  
(Tr., 106.)

“ Did you tell Mr. Rainmiller where they could 
find Mr. Lewis Wilson’s watch that had been 
stolen!”  (Tr., 111.)

“ Did you tell Mr. Rainmiller where he would 
find Mr. Atkins’ radio!”  (Tr., 111.)

“ I am asking you for the purpose of contra­
diction, if you didn’t tell Mr. Rainmiller about 
sixteen different robberies, and tell him in each 
particular case where they would find where you 
had either sold the stuff or had it hidden, and 
he called Mr. Arch Lindsey over the telephone, 
and Mr. Lindsey would go find the stuff!”  (Tr., 
111. )

The Prosecuting Attorney did not profess to be pro­
ceeding on this line of examination as direct substan­
tive proof of the charge that the defendants had raped 
Mrs. Terry December 21, 1934. He attempted to jus­
tify the questions on the ground of impeaching or con­
tradicting the defendants as witnesses:

“ Mr. Smith (Deputy Prosecuting Attorney):
Whether or not he committed other offenses
goes to his credibility.”  (Tr., 83.)



23

On this point there was utter confusion in the mind 
of the trial court. His rulings at one stage of the 
case were inconsistent with and repugnant to his rul­
ings on the same point at another stage:

“ Cross-examination of Bubbles Clayton:

Q. After you were arrested and in custody, 
didn’t you tell the officers on a number of occa­
sions where the stolen articles were which they 
could find, and which they recovered and sent 
back to owners f

The Court: Let me see you gentlemen a
moment.”

(Here the Court conferred with counsel for 
the State and defendants.)

“ The Court: Objection sustained.”  (Tr., 77.)
* * * * *

“ Q. I will ask you if you didn’t stick him up, 
and then tell Mr. Lindsey where he could find his 
watch and other stuff?

A. I did not.

Mr. Adams (for defense): I object.

A. I did not.

Mr. Adams: I object to that. Mr. Dudley 
has announced he is trying to lay a basis for 
impeachment but it occurs to me instead that 
it is trying to get into the record an alleged con­
fession of something, and probably something 
not connected with this lawsuit.

Mr. Smith: Whether or pot he committed
other offenses goes to his credibility.



24

The Court: He has denied it.
Mr. Adams: Exception.”  (Tr., 82-83.)

* # # # #

“ Cross-examination of Jim X. Caruthers:

(Topic, ownership of his automobile, which 
he said he had paid for in part by picking cot­
ton, but which the Prosecuting Attorney insinu­
ated had been purchased out of proceeds of 
robberies. The car was not involved in the 
alleged rape on Mrs. Terry.)

Mr. Dudley (Prosecuting Attorney): I didn’t 
ask you that, I asked you who owned it f

Mr. Adams: I don’t know how this line of 
examination bears on the thing that this boy 
is tried for. I object to it for that reason. I 
can’t see the purpose of it. I don’t think the 
cap part is admissible.

Mr. Dudley: Test his credibility, see when
if he did, really pick cotton.

The Court: Yes, he may ask that question.
Mr. Adams: Exceptions.”  (Tr., 104.)

“ Q. I am asking you for the purpose of contra­
diction, if you didn’t tell Mr. Eainmiller about 
sixteen different robberies, and tell him in each 
particular case where they would find where you 
had either sold the stuff or had it hidden, and he 
called Mr. Arch Lindsey over the telephone, and 
Mr. Lindsey would go find the stuff?

Mr. Adams: I object to that line of examina­
tion.

The Court: I am holding he is the State’s 
witness, being collateral matters.”



25

It is impossible to reconcile the rulings of the Court. 
The Court begins by excluding questions as to other 
crimes, then he permits it as cross-examination for 
impeaching credibility; and finally holds that the de­
fendant is the State’s own witness in this regard and 
that the Prosecuting Attorney can bring out the evi­
dence as direct examination. If the purpose of the 
questions is to impeach or contradict, the examina­
tion is improper because the State can not impeach 
its own witness. If the purpose is not to impeach, 
then the Court must have been under the opinion that 
proof of other crimes is substantive proof tending to 
establish the crime charged against the defendants at 
the trial. In either event the Court is plainly wrong.

The law in Arkansas is just as clear that the credi­
bility of a defendant as a witness cannot be impeached 
by proof that he has committed other unrelated crimes.

Burris v. State, 38 Ark. 221.

We are not here complaining of or dealing with rec­
ords of convictions used to impeach credibility. The 
Prosecuting Attorney concentrated his fire on alleged 
crimes for which the defendants had never been tried 
and for which they were entitled to their day in court. 
Such examination was error, and prejudice will be 
presumed.

Elder v. State, 69 Ark. 648.

In the instant case the prejudice done to the defend­
ants’ rights by the improper line of questioning was 
particularly vicious in view of the absolutely incredi­



26

ble story of the alleged rape and identification brought 
forth by the prosecution. As demonstrated above the 
evidence as to the alleged rape is so full of holes and 
missing links that no jury which respected its oath 
could find the defendants guilty beyond a reasonable 
doubt, without the introduction of extraneous, irrele­
vant matters tending to inflame passion and prejudice. 
But with the issue of the alleged rape all confused and 
mixed up with these charges and insinuations of other 
crimes dragged in by the Prosecuting Attorney, the 
jury could not help but be driven to convict the de­
fendants of this charge of rape, under a feeling that 
the defendants were “ bad Negroes”  and a menace to 
the community, and that if it did happen that they were 
not guilty of the rape, they were still guilty of so many 
other desperate crimes that they ought to be put away.

As to each defendant, defense counsel objected from 
time to time to the improper line of examination by 
the Prosecuting Attorney, but as shown above the 
Court in most instances overruled the objections. 
After the Court had overruled the first objection to 
this improper line of examination, all subsequent evi­
dence of the same nature was subject to the full force 
of the original objection, even though the objection was 
not expressly renewed.

“ Where a principle of admissibility is once 
decided, counsel need not annoy the presiding 
judge and his opposing counsel by interrupting 
with continual objections. He need only be con­
cerned to be sure that it is exactly the same prin­
ciple.”  Calhoon, J., in Cook v. State, 81 Miss. 
146, 152.



27

See eases collected in 3 C. J. (Appeal and Error), 
Sec. 734.

It is to be emphasized also that the prejudice to the 
defendants’ rights lies in the questioning itself. In 
spite of the pronouncement of the Trial Court, the 
prejudice is not cured or avoided by the fact that in 
most instances the defendants denied commission of 
these other unrelated crimes about which the Prosecut­
ing Attorney was interrogating them. The jury would 
not be convinced by the defendants’ denials; that is 
no more than the jury would expect. And where the 
Prosecuting Attorney keeps on questioning the defend­
ants on the assumption that they were the authors of 
other desperate crimes, the jury could not avoid being 
affected and becoming prejudiced against the defend­
ants. The situation was aggravated where as here the 
Court sustained and gave his approval to such ques­
tioning after the defense had objected.

By way of preserving all rights a motion for new 
trial was made and overruled. One of the specific 
grounds laid therein was:

“ 5. The Court erred in permitting over the ob­
jection and exception of defendants questions to 
be asked about other alleged crimes of defendants 
or circumstances surrounding such alleged crimes 
or alleged admissions or statements of defend­
ants with reference to such other alleged crimes.”

But even without such motion the jurisdiction of this 
Court to review the foregoing prejudicial errors of 
the trial court is plain in this case under the Act of 
May 31, 1909.



2 8

The nobility of the law rises in corresponding degree 
with the seriousness and heinousness of the crime 
charged. In a capital case the dignity and honor of 
the State demand that no unfair advantage be taken 
of the defendants. The Act of May 31, 1909, is an ex­
pression of such attitude. It cannot be the policy of 
this State to permit a citizen’s life to be forfeited 
through insinuating appeals to prejudice and passion 
in courts of law.

It is respectfully submitted that the conviction 
of the defendants below under the circumstances 
amounted to a denial of their constitutional rights, 
and violated the constitutional guaranties of due 
process and the equal protection of the law provided 
in the Fourteenth Amendment to the Constitution of 
the United States.

For the foregoing reasons the judgments below 
should be reversed.

Respectfully submitted,

JOHN R. THOMPSON,
JNO. A. HIBBLER,

Attorneys for Appellants.
Charles H. Houston,
Carol K ing,

of Counsel.



IN THE

Supreme Court of Arkansas

BUBBLES CLAYTON AND
JIM X. CARUTHERS_______________ Appellants
Ys. Nos. 3944 and 3945

STATE OF ARKANSAS__ ________________ Appellee

APPEAL FROM THE CIRCUIT COURT OF 
MISSISSIPPI COUNTY, CHICKASAWRA 

DISTRICT

HON. NEILL KILLOUGH, JUDGE

BRIEF OF APPELLEE

CARL E. BAILEY,
Attorney General.

J. HUGH WHARTON,

ORMAND B. SHAW, 
Assistant Attorneys General. 
Attorneys for Appellee.

Con-wmy P ristin e C o„ Conway. Ark.



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IN  TH E

Supreme Court of Arkansas

BUBBLES CLAYTON AND
JIM X. CARUTHERS_______________ Appellants
Ys. Nos. 3944 and 3945

STATE OF ARKANSAS___________________ Appellee

APPEAL FROM THE CIRCUIT COURT OF 
MISSISSIPPI COUNTY, CHICKASAWBA 

DISTRICT

HON. NEILL KILLOUGH, JUDGE

ABSTRACT AND BRIEF FOR APPELLEE

STATEMENT

In view of the fact that the appellants failed to des­
ignate the pages of the transcript in their abstract of 
the testimony and in view of the further fact that appel­
lants ’ abstract of the testimony does not fully and im­
partially set forth the substance of the testimony of wit­
nesses for the state, we deem it necessary to a complete 
understanding of the facts as developed in the lower 
court, that the testimony of witnesses be re-abstracted



-2—

and we are therefore re-abstracting the testimony of all 
witnesses in this case in the trial court.

ABSTRACT OF TESTIMONY

Wiley Bryant, a witness for the state, being duly 
sworn, testified as follows: (Tr. 6)

I live at Earle, Arkansas. On December 21st, last 
year, I lived at Sandy Ridge. I know Miss Yirgie Terry, 
I had been going to see her about two months prior to 
December 21. I owned a car at that time, it was a Ford 
two-door sedan. I was with Miss Terry on the night of 
December 21, we were in my car.

Tr. 7. I went to her home to get her about 7 :30, 
then we rode around town and went out to Sawyers 
graveyard, which is about a mile and a half southeast 
of Blytheville. We parked at Sawyers graveyard about 
8 o ’clock that night. The road on which we parked runs 
north and south, there is an intersecting road running 
east and west. (Tr. 8) We were parked north on the in­
tersecting road about half a quarter, we were headed 
north. We had been parked about 30 minutes, maybe 
three-quarters of an hour before they came up to the 
car. It was a thin, cloudy night, the moon every once 
in a while came out. It was not a dark, rainy night, 
(Tr. 9) I was on the left side in the front seat under the 
steering wheel of the car. The young lady was sitting 
by my side on the right front seat when they came up,



— 3

I had my arm around her. There was two fellows walked 
up, one on each side and flashed two flashlights on us, 
one apiece, one of them shot and opened the door and 
told us to get out and we started to get out and one of 
them hit me over the head with the flashlight and I got 
out. (Tr. 10) There was one on one side and one on the 
other side of the car. They came from the rear of the 
car. The man on my side of the car told me to “ stick 
them up.”  H'e told us to get out, he opened the door a 
little before shooting. The car we were in that night is 
at home. (Tr. 11) It is all burned up, all of the inside 
burned out of it. The bullet mark is still on the car, 
right under the door knob on the left hand side. The 
door opens back from the front. I got out on the right 
side of the car, the young lady got out first and I fol­
lowed her. (Tr. 12) I was hit over the head with the 
flashlight in the car. Both of us got out on the right 
side of the car. I recognize in the court room the two 
men who came up to the car that night. That is one 
of them over there and that one over there is the other, 
them two with white shirts on. The one that came up 
on my side of the car is the big one, the one who came 
up on the other side of the car is the little one. (Tr. 13) 
When we got out of the car, the other one came around 
and held the gun on me while the other searched me, the 
biggest held the gun and the other searched, he went 
through my pockets, slapped me all up and down, pulled 
my hat off and searched it but found nothing of value.



4r

When they got through searching me, they told the girl 
to get in the car. (Tr. 14) The big one told her, the other 
told me to get down in the ditch. There was a car com­
ing along, I got down in the ditch. He stayed there with 
me, that is the little one. When this car came along I 
had an opportunity to see the man who had me down in 
the ditch, and that is the man which I pointed out. He 
stayed down there in the ditch with me about 15 minutes. 
(Tr. 15) While I was down there in the ditch, he ran 
backward and forward to the car. About 20 minutes af­
ter they ordered the girl to get in. the car, the other one 
came down to where I was. During that time I was in 
the ditch, one more car came by. That made two cars 
that passed, one going north and the other going south. 
(Tr. 16) I saw nothing that occurred to the young lady.

On CROSS EXAMINATION, Witness Wiley Bry­
ant testified:

I am 23 years old. (Tr. 16)

ON RE-DIRECT EXAMINATION, witness Wiley 
Bryant testified (Tr. 16):

I made the trp with Mr. Wilson, the sheriff, and 
Mr. Arch Lindsey, the deputy sheriff, to Little Rock to 
identify the fellows. Virgie Terry was with us. When 
we got there we went to Tucker farm. (Tr. 17) The de­
fendants were there, I identified them there as being 
the men who assaulted me that night and held me up.



— 5-

There is no doubt in my mind nor was there then, that 
these are the two men.

ON RE-CROSS EXAMINATION, Witness Wiley 
Bryant testified: (Tr. 17)

I lived at Sandy Eidge six years. I have never 
been married. I was farming at Sandy Ridge with my 
father. (Tr. 18) It was my car. I had known Virgie Ter­
ry about 15 years, her name has not always been Virgie 
Terry, it was Virgie Ennis. I don’t know when she was 
married. (Tr. 19) I don’t know where she was when 
she married, she had been living out here at Forty-Eight. 
We used to play together when we were kids. Forty-Eight 
is east of Blytheville about 16 miles. (Tr. 20) It is about 
four miles east of Amorel. Her folks were farming out 
there. I don’t know her husband’s name. At the time 
she got married I was living at Sandy Ridge. I don’t 
know whether or not she is divorced. (Tr. 21) I know 
her husband when I see him, I am not acquainted with 
him. I met Virgie on that particular night on Lake 
Street. I had been meeting her before that, down at 
Mr. Webster’s w’here she was living. (Tr. 22) I don’t 
know what her husband does. I just happened to meet 
her and made a date with her. She did not say any­
thing about being married. I had not been regularly 
driving out to the cemetery with her. (Tr. 23) We would 
drive around town, sometimes we drove out of town. That 
night we took the gravel road that turns off Main Street



— 6—

and goes past the Fairfield place, and drove down and 
turned around at that school, and turned back and parked 
on the east side of the road, that would be the right side 
going north. (Tr. 24) There is a ditch there about three 
and a half feet deep. There was no water in it. There 
were no trees on the side of the road where we parked, 
no weeds. There were some weeds along the roadway 
and some weeds down in the ditch. The road is fairly 
wide. We had stopped there possibly three-quarters of 
an hour, just sitting there talking. (Tr. 25) We were both 
sitting in the front seat. We saw these people pass. 
They were walking south. Our lights were not on, it 
was about 8 o ’clock at night. It was somewhat of a 
cloudy night. They came on up and went down and 
came up behind us and held us up. As they went down 
they walked on the far side of the road. (Tr. 27) I could 
not see their faces then and could not see how they were 
dressed. I don’t know that it was the same two men, 
that is just my conclusion, but from seeing their faces 
and their clothes, I could say it was the same two. These 
two men came up from the north about 10 minutes after 
they had passed south (Tr. 28) The doors of the car 
were not locked, a man just said “ Stick them up’ ’ and 
shot. I did not even have time to stick them up, he was 
on the left side of the car, that was the side toward the 
middle of the road. We were parked close to the edge 
of the ditch. (Tr. 29) I did not know the other man had



— 7-

a gun until I got out and sa.w it. The door knob on the 
car is a little back of where I sit. (Tr. 30) The bullet did 
not go clear through the door. It was not very cold 
that night. After he shot he opened the door. (Tr. 31) 
The biggest fellow was on my side of the car and shot in 
the car. After he shot, he just said “ get out.”  There 
was nothing peculiar about the way he said it. (Tr. 32) 
The other negro had not said anything at that time. The 
biggest one held the door open until I got out and came 
around. (Tr. 33) While he was going around the car, the 
little fellow was holding the gun on us. I saw the girl 
get out. (Tr. 34) The little one told me to get in the ditch 
and the big one told the girl to get in the car. (Tr. 35) 
They had something over their faces. (Tr. 36) I did not 
see their faces then, but one of them was bigger than 
the other. They had caps on with bills on them. (Tr. 37) 
The moon was shining every once in a while. I lay down 
in the ditch, he stood up and held the gun on me. He 
was south of me. (Tr. 38) I was laying lengthwise of 
the ditch with my head kindly southwest. It was a pret­
ty wide ditch there, my face was down, but I raised my 
head up and looked at him. I did not talk to him. (Tr. 
39) I was in the ditch about 15 minutes. He was hurry­
ing up the other one, told him to hurry up. The car 
doors was shut. (Tr. 40) The one got out of the car and 
came down there and the other one left me. At that 
time I was sitting up. (Tr. 41) When the big one came 
down there, the little one got in the car. It was about



10 feet from the car door to where I was in the ditch. 
(Tr. 42) When the big negro was guarding me in the 
ditch, he asked me had the other one got anything off 
of me and I told him no. (Tr. 43) He had a handkerchief 
or mask over his face. When the car passed going north, 
the lights shown over to her side of the road. (Tr. 44) 
When the first car went by the little negro was watching 
me. I don’t know whose car it was or what kind it was. 
(Tr. 45) I did not yell. The other car passed going 
south about 10 minutes after the one g’oing north. The 
little negro was still watching me. I don’t know what 
kind of car this was. (Tr. 46) The negro kept the gun 
back of me all the time. (Tr. 47) The big negro watched 
me about the same length of time as the little one did. 
No car passed while I was down there with the big one. 
When they got ready to leave, they told me to stay there 
about 10 or 15 minutes, if we did not, they would kill 
us both if we passed them before they got past the rail­
road. The railroad was north of where we were. Be­
fore they left they told me to get in the car. (Tr. 48). 
There was not anything in the way the negroes talked 
to distinguish them from one another. When I got in 
the car, Miss Terry got in from the back seat. (Tr. 49) 
We waited for about 8 minutes, I guess. (Tr. 49) They 
left with their masks on. I did not have any money in 
my pockets and they did not take nothing from me. 
When I came to town, I asked Brewster where was Arch 
Lindsey, he said he did not know. (Tr. 50) Brewster



9—

is one of the night cops. I went around and talked to 
the fellow that stays there all night, I told him what 
happened out there. I took Miss Terry back down on 
Lake Street, she was with me when I came up to talk 
to the night man. I had not seen these boys before I 
went to Tucker farm. (Tr. 51) I saw them the night 
they held us up. I never had seen either one of these 
boys before that night, I don’t reckon. They are the 
boys who had the handkerchiefs over their faces. We 
did not work negroes down at Sandy Ridge, we worked 
our own crop. (Tr. 52) That night there was not a time 
when either of the boys had his face uncovered when I 
saw it. I looked all over town at other negroes to try 
to identify them as the boys out there that night. I was 
in town a good many times between the 21st of Decem­
ber and the 13th of January. (Tr. 53) I saw them down 
at Tucker farm. They were in the death cells, there: was 
not another negro in there. They just carried us in 
and told us to look at them and we looked and walked 
out.

ON RE-DIRECT EXAMINATION, witness Wiley 
Bryant testified: (Tr. 53)

When we went in there they talked a little. (Tr. 54) 
I never pointed out or suspected any one except these 
two defendants. When we got to the penitentiary, Mr. 
Arch told me not to say anything to them. I don’t know 
how many cells there were in that row. (Tr. 55) There



— 10

are a number of cells in a row. There were two other 
negroes in another cell. There was an officer with us 
at the time, Mr. Arch Lindsey. (Tr. 56) He did not go 
into the cell block with us, he waited outside. He did 
not say anything to me or indicate in any way. At the 
time of the assault on the road, one of these men had on 
blue overalls and a blue jacket and the other one had on 
striped overalls and a blue jacket.

ON EE-CROSS EXAMINATION, witness Wiley 
Bryant testified: (Tr. 57)

Arch did not tell me which cell the negroes was in. 
They had overalls on. They had on blue overalls and 
blue jackets down at Tucker farm. They did not have 
any caps on there. (Tr. 58) They did not have any masks 
on there. This boy did have a mustache, I do not know 
whether he had it out there that night or not. I did not 
see any part of his face.

ON RE-DIRECT EXAMINATION, witness Wiley 
Bryant testified: (Tr. 58)

When the little boy guarding me told the other one 
to hurry up, the other one said “ I will be there in a 
minute, as soon as I get through”  (Tr. 59)

ARCH LINDSEY, witness for the state, testified as 
follows: (Tr. 59)

I am Chief Deputy Sheriff of Mississippi County. I



■11—

am familiar with the highway that leads south out of 
Blytheville down past the Fairfield place near the Saw­
yer graveyard, and the intersecting road runs east and 
west there at Sawyer’s graveyard. The one that runs 
east and west and the one that goes by the Fairfield 
place, cross what is known as the old Clear Lake road. 
That territory which is north of the east and west in­
tersecting road is in the Chickasawba District of Mississ­
ippi County, Arkansas. (Tr. 60) Myself, Mrs. Terry and 
Mr. Bryant and Sheriff Wilson went down to Tucker 
farm to identify the suspects personally. We got hold 
of Captain Todhunter, the superintendent, and he talked 
to the young lady and man, and told them to go down 
there and say nothing. “ Take them in turn and pick 
out the negroes’ ’ and cautioned them to be very careful 
to be sure they were right. There were two negroes in 
the cell right by the side of them. There are four cells 
in the death cell. There were, I believe, only three whites 
in there, two negroes in the first two cells and two ne­
groes, the ones we caught up there a t -------------- , and
another I did not know, and Bubbles and Jim X. were 
in the last cell to your left. Mr. Wilson, myself, Cap­
tain Todhunter and another officer was walking down 
a little hall to the gate. There is a gate you have to 
unlock before you get to the death cell in that anteroom 
there. We walked to the door and they stopped just 
inside. We stopped at the door of the death house. (Tr. 
61) The cells are inside. We stopped just inside the



- 1 2 -

door and the boy and girl walked in. I said “ Are you 
through?” , they said they was. I told them not to say 
anything and when they walked out I said “ What ne­
groes is it”  and they said the two in the far cell. That 
was the cell with these two negroes in it. There was 
not a word spoken until after they walked out. I don’t 
remember a word being said until after this couple 
walked out. (Tr. 61)

ON CROSS EXAMINATION, witness Arch Lind­
sey testified as follows: (Tr. 61)

In. the car going down there, there was myself, the 
sheriff, the young lady and gentleman who just testi­
fied. (Tr. 62) I don’t remember whether we discussed 
the thing on the way down there or not, probably we 
talked about it some. I don’t remember whether we 
discussed these boys by name or not, we could have. 
These boys were first taken from here to Osceola, Mr. 
Jackson called me from Osceola and I went down there 
and they were moved from there to parts unknown to 
people around here, and finally ended up at Tucker 
farm. There are four different cells in the death house. 
(Tr. 63) These boys were in the death house at the time 
these people went down there. There were two other 
negroes in the death house at that time, besides these 
negroes. They were in a cell to themselves, the cell 
right next to them I believe. They were in a cell to­
gether I think. I don’t know whether Mr. Todhunter



— 13—

knew whether we were coming down there that day or 
not. (Tr. 64) I don’t think Mr. Bryant and Mrs. Terry 
knew how many negroes they would expect to see when 
they went in there because they were not with us, we 
went inside and left them out in the car by themselves. 
If I remember right, all the negroes in there had on 
overalls.

VIRGTE TERRY, witness for the state, testified 
as follows: (Tr. 64)

I am 19 years old, was born in Tennessee. (Tr. 65) 
I was 17 months old when I came to Mississippi Coun­
ty. I now live at Friendship, Missouri. Have lived 
there two years. I lived in and around Blytheville from 
the time I moved to Mississippi County until two years 
ago, my father is a farmer. I worked at the Canning 
Factory in Blytheville last summer, it is on Ash Street. 
I live at Mr. Webster’s now. I was married in 1932. 
My husband’s name is Bob Terry, we are separated now, 
have been separated twenty months, we separated on 
July 17, 1933. Since then, I have been keeping com­
pany with other young men. (Tr. 67) I know Wiley 
Bryant. I was with him on the night of December 21, 
1934, parked out near Sawyer’s cemetery. He came for 
me before dark, about 6 o ’clock that night. He came 
to Mr. Webster’s home, to where I was staying. We 
parked out at the cemetery about 8:30. When we 
parked the car was facing north. While we were parked



■14—

there, some negroes passed our car, they were go­
ing south. (Tr. 68) Later, these two that passed going 
south came back. It was about 10 minutes after they 
passed. The first intimation I had they were again ap­
proaching the car was they flashed lights in our faces. 
There was two lights, one on each side. There were two 
men. Mr. Bryant was sitting under the wheel, I was 
sitting on the other side of him. We were talking. (Tr. 
69) The first thing they did was to tell us to stick them 
up, and we did, and he told us to get out and jerked 
the door open and fired the shot, but it hit the car, the 
fire and smoke of the gun blinded me a few minutes, 
then we got out, I got out first and he got out. When 
they shot, they hit him on the head with a flashlight or 
something and he fell over against me, I stepped back 
and they took him to the back of the car just a few steps 
from the front door and the large one held a gun on 
him while the other one searched. They forced him to 
set down in the ditch and the small one held a gun in his 
back and the large one throwed the gun on me and told 
me to get in the car. I see these two men I have been 
talking about in the court room. (Tr. 70) They are right 
over there, they are the ones over there with the white 
shirts on. The little one came up on my side, the big 
one is the one who came up on the man’s side of the car. 
The big one is the one who hit Bryant over the head. 
(Here the attorney for the state and the attorney for 
the defendants stipulated that the one referred to as



— 15-

tlie big one is Clayton and the one referred to as the 
little one is Jim X. Caruthers.) The little one took Mr. 
Bryant down in the ditch and the big one told me to get 
in the car. At that time the big one had his gnn in my 
face. (Tr. 71) I hesitated about getting in the car and 
asked him what he wanted me to get in the car for, and 
he told me if I did not get in the car he would kill me 
and I said “ If I get in the car will you kill me,”  then 
he said “ No, if you will get in the car.”  He turned 
the front seat down and told me to get in the back. The 
car door opens from the center and swung back toward 
the engine. The handle of the door was about the cen­
ter of the car. I got in the back seat, he followed me 
in and laid the gun down beside me in the seat and held 
his hand on the gun and forced me to lay down. (Tr. 72) 
He forced me to have intercouse with him. I had on a 
slip. This act was done forcibly and against my will, 
under no circumstances would I have considered it. 
While this was going on the one who was with Bryant 
kept on hurrying the one who was with me, when he fin­
ished he got out and the other one got in and forced me 
to stay in with his gun. He had intercourse with me, and 
this act was also forcibly and against my will, under no 
circumstances would I have agreed to it. There is no 
doubt in my mind that these are the two men. When 
this was over, we stayed there about 5 minutes, the big 
one, Clayton, when they put us in the car after they had 
finished, suggested killing us, but the little one would



— 16—

not agree to it. They stayed about 5 minutes before they 
left. (Tr. 74) They told us to wait there about 15 or 20 
minutes to give them time to get to the railroad, they 
said they were going to walk in to town and catch a 
freight train out that night, and if we passed them be­
fore they got to the railroad, they would kill us both. 
We waited about 5 minutes and they went down the 
road north a few steps and stopped and talked a few 
minutes and went a little further then turned left to­
wards a corn field and went towards town. Then we came 
to town and reported it to the officers. These men were 
masked when they came out there. When the act of 
intercourse was going on with the first negro, Clayton, 
a car passed. (Tr. 75) While this act was going on he 
was not masked, he had pushed his mask up on his fore­
head. In the full glare of that light I had opportunity 
to see and know him, and that is the man. When the 
act of intercourse was going on with the other man he 
pushed his mask up over his forehead. (Tr. 76) Some 
time later, I was with Mr. Lindsey, Mr. Wilson and Mr. 
Bryant and went to see suspects, we were taken to the 
penitentiary. Mr. Lindsey told us to go in and see if we 
could find them in there, to see if they were the ones, 
and we went in, turned to the left, and we saw those two 
men, negroes in there, two, but we went on down until 
I came to the cell they were in. These other two negroes 
were not in the same cell as these two. (Tr. 77) I looked



at them and walked on by, when I got to the cell these 
two negroes were in, there was no doubt in my mind 
that they were the ones, nor is there any doubt in my 
mind now.

ON CROSS EXAMINATION, witness Virgie Ter­
ry testified: (Tr. 77)

I am 19 years old, my name was Ennis. I was mar­
ried at Cooter, Missouri the 5th day of June. 1932. Bob 
Terry lived at Huffman, we lived at Cooter while we 
were married. (Tr. 78) I have not been living with him 
for some time, I am not divorced from him. I lived 
with my parents until the next year after I quit him, 
then came to Blytheville. My parents live at Friend­
ship, Missouri. I came from there to Blytheville. (Tr.
79) I had been in Blytheville about three months on the 
21st of December. I began to make dates with Wiley 
Bryant about a month after I came to Blytheville and 
I made dates with him frequently from then on up to 
this time, we went to shows and places. He had a car 
all that time. We would go out driving together. This 
was the second time we was ever on that road, it was 
about 8:30 that night when these men came along. (Tr.
80) We had been there 40 or 45 minutes. We had gone 
up the road and turned around and headed north. We 
stopped pretty near the ditch on the right side of the 
road. We turned off the lights of the automobile. It 
was somewhat cloudy that night. (Tr. 81) When these

— 17—



- 1 8 -

men came along- they walked on the opposite side of 
the road. I did not pay any particular attention to them, 
only I noticed they were negroes. They didn’t made 
me uneasy or frightened. We sat there 5 or 10 minutes 
longer before anything happened. (Tr. 82) They came 
up one on each side of the car and flashed lights in our 
faces. The one on the left told us to stick them up, 
that was on the side Mr. Bryant was on, this was before 
the car door was opened. I heard him plainly, there 
was no hesitation in his speech, then we stuck them up. 
Mr. Bryant had his arm laying around the back seat. 
(Tr. 83) He stuck his hands up. They opened the door, 
he shot about the time he jerked the door open. He 
opened the door and shot at the same time. The one 
on the left hit Mr. Bryant, I could not see what he hit 
him with at that time. (Tr. 84) I was blinded by the light 
and could not see either negro. The bullet hit the left 
side of the car just under the handle, I examined it af­
terward. Both of them opened the doors. (Tr. 85) The 
door on my side was opened with the flashlight still on 
me, 1 got out on the right side on my side, that is the 
side toward the ditch. Mr. Bryant got out following me. 
After we got out the little one held the gun on us while 
the other one came around the car, he came around the 
back. They forced Mr. Bryant to lay down in the ditch 
when a car passed. These masks I spoke of were white 
handkerchiefs one had a colored border. (Tr. 86) While



— 1 9 —

they had the flashlights on me, I could tell they were 
masked. As soon as they had Bryant lay down in the 
ditch, they ordered me back in the car, the big negro did 
that. There was nothing peculiar about his voice. The 
door on the right hand side of the car was closed. (Tr. 
87) He pushed the seat forward so I could get in the 
back seat, he told me to get in the back seat, he told me 
to lie down on the seat. I was not laying, I was kind of 
laying out, my head on the back of the seat like, he did 
not close the door as he got in, left the door toward the 
ditch open, the other door was closed. (Tr. 88) When 
both these cars passed, the little one was down in the 
ditch with Mr. Bryant, the first car came from the north 
and went south. I think it turned around and came 
back, this same car. (Tr. 89) I was still in the car when 
it came back, in the same position, with my head over 
in the southwest corner of the seat. It was not a dark 
night, it was cloudy and the moon shone. The car door 
on the road side was shut. It was just a few minutes 
from the time the car that came from the north came 
right back by, it went to the corner and turned around, 
I heard it turn and come back. I could tell by the lights 
it was turning. (Tr. 90) I don’t know what kind of car 
it was, I don’t know who was in it, it did not stop, just 
went right by. There was no light on in my car. All 
the cars that passed either way, passed while the larger 
man was in there with me. (Tr. 91) I could see these boys



-20—

so clearly that I could identify him, I am positive of 
this. These boys had on caps, the big boy did not take 
his cap off when he got in the car, he pushed the hand­
kerchief up over his forehead. (Tr. 92) I could see his 
face. I don’t remember ever seeing either one of these 
boys before, I never saw them afterwards except down at 
Tucker farm. I realize that upon my identification 
possibly depends the life of these boys, and I am will­
ing to stand on my identification made out there in that 
car that night. (Tr. 93) There was some conversation 
between the boys while the big boy was in the car, he 
would answer when the other boy talked to him. There 
was nothing unusual about his voice. When he got out 
of the car, before I could get out, the other boy got in, 
the other boy talked to me while he was in the car with 
me. He had his cap on. No car passed while he was in 
there. (Tr. 94) The moon came out at times, the moon 
came out while he was in there and shone in the car. 
I was not laying over as far when the smaller one was 
in there, he did not stay in the car as long as the first 
one. When they got out of the car, they told Mr. Bryant 
to get back in the car, they ordered me to get back in the 
front seat. (Tr. 95) They shut the door, the large one was 
the one who said they were going to take a freight train 
and get out of town that night, he did most of the talking. 
I could recognize his voice. I did not talk to these boys 
when I went down to Tucker farm. (Tr. 96) I heard 
them talking to the sheriff, he came in after me and Mr.



— 21-

Bryant, they talked with the negroes and the negroes 
answered them, and we turned and went back out. Mr. 
Lindsey and Mr. Wilson talked to the negroes. (Tr. 97)
I went back to Missouri on the 26th of December and 
have been there living with my folks, and I saw these 
boys at Tucker farm, they were in blue overalls trous­
ers and dark shirts. No one else was in the cell they 
were in.

ON RE-DIRECT EXAMINATION, witness Virgie 
Terry testified: (Tr. 98)

I went to the fourth grade, I have never been a wit­
ness before. These men kept us together about an hour, 
the big one was in the car with me about 25 or 30 min­
utes, he did not talk to me while the act of intercourse 
was going on, the small one was in the car with me about 
10 or 15 minutes. (Tr. 99) He talked to me.

QUESTION: “ What did he say; it may be em- 
barassing; I want you to tell the jury ? ’ ’

MR. ADAMS: “ I am objecting to that, I don’t think 
there is sufficient identification of either of these de­
fendants to make that admissible; it is hearsay.”

MR. DUDLEY: “ Let me ask her this qualifying 
question: You say you heard Mr. Wilson talk to these 
two defendants at Tucker, didn’t you?”

ANSWER: “ Yes sir.”



QUESTION: “ And you heard the two defendants 
talk?”

ANSWER: “ Yes sir.”

QUESTION: “ Did you hear anything unusual in 
their conversation while they were talking to them?”

ANSWER: “ No sir.”

QUESTION: “ You say you heard nothing unusual 
down there that night?”

ANSWER: “ No sir.”

QUESTION: “ You had opportunity to hear him 
talk, the small one, down there that night, did you?”

ANSWER: “ Yes sir.”

QUESTION: “ You had opportunity down there at 
the penitentiary?”

ANSWER: “ Yes sir.”

QUESTION: “ Now, just tell the jury what it was 
he said to you down there, while that act of intercourse 
was going on, just tell them what he said.”  (Tr. 100)

ANSWER: “ Well, he asked me which was the best, 
a white man or colored man. I didn’t answer. Then he 
asked me if I lived in the city or out in the country. I 
told him I lived in the city.”  “ That is all he said.”

I realize that my identification of these men is a 
serious proposition and realize the consequences of what

— 22—



- 2 3 -

might or could happen to these defendants. I say these 
are the two defendants.

ON RE-DIRECT EXAMINATION, witness Yirgie 
Terry testified: (Tr. 101)

When I testified that these defendants and each of 
them had intercourse with me, by that I meant “ sexual 
intercourse1. ’ ’

ON RE-CROSS EXAMINATION, witness Yirgie 
Terry testified: (Tr. 101)

Each of these boys had his gun with him in the car, 
they laid it down while they were having intercourse 
with me. I did not cry out when either of the cars passed, 
the boy had his hand on the gun.

ON RE-DIRECT EXAMINATION, witness Virgie 
Terry testified: (Tr. 102)

I did not cry out because I did not think it would 
do any good, I was frightened.

ON RE-CROSS EXAMINATION, witness Virgie 
Terry testified: (Tr. 102)

But I did answer one of the boys ’ questions.

One of the defendants, BUBBLES CLAYTON, a 
witness in his own behalf, testified as follows, on DI­
RECT EXAMINATION. (Tr. 103)

I am 21 years old. I stay here in town, I was born



■24—

and raised here. I have been farming* all my days, I 
have made crops for the past two or three years. I made 
some money. The last crop I made was about four miles 
from here, (Tr. 104) I had 10.79 acres. December last 
year, 1934, I was hauling cotton pickers. It is not true 
that I was one of the boys who attacked this girl on the 
night of December 21. On the night of December 21, 
I was down here at 100 Matthews Street. I went down 
there about 6 o ’clock, and me and my girl, Jim X. and 
his girl, Lucient and his girl and Tom Anderson and his 
girl, Willie Manuel and Jack Harris and Herbert Love, 
we played cards down there that night until about 10 
o ’clock and I left there and I goes on home and gets in 
bed. About the time I get in bed and before I went to 
sleep, Herbert Love and his girl and Tom Manuel and 
his girl came up there (Tr. 105) and told me to come and 
go to the state line and get some whiskey, and I puts 
on my clothes and we go and get the whiskey and we 
stayed up there at the state line and drank it, and I 
bought our whiskey and I bought some wine and I 
brought the wine back home with me. It was Friday 
night, December 21. I got back to Blytheville some time 
after midnight, there were eight of us in the car. Mr. 
Eddie D. went out looking for these people, he said Jack 
Harris was sick with pneumonia, Tom Anderson was 
in St. Louis, I don’t know where Herbert was, he is out 
of town, but Willie Manuel is here and Evelyn and Myr­
tle and Lucient. (Tr. 106). We were playing cards to­



25—

gether before we went up to state line, Evelyn was with 
me on that trip. That is Evelyn Bayon. Jim X. ’s part­
ner was Katie. I don’t know whether she is here or not. 
Lucient was with a girl from Tennessee, I don’t know 
her name. Myrtle went with Tom Anderson, that is Myr­
tle Dodson. (Tr. 107) That night I had on these trous­
ers and a checked shirt and a sweater. I won’t wear a 
pair of overalls in five years, and everybody that know 
me know I haven’t wore a pair in five years. I don’t 
have a cap, I had two hats. When I was arrested and 
taken to Tucker farm, they kept us in the death cell. At 
the biggest time there was three of us colored boys in 
there and about four whites, that is, only three of us col­
ored boys in the same cell. This is the first time I have 
ever seen the lady who testified, except when they had 
her down at the penitentiary. Mr. Wilson, and Mr. Arch 
Lindsey brought them there, and after they went out, 
one of them guards come and said: “ Them are some 
folks come from Blytheville to identify you.”  Mr. Arch 
Lindsey and Mr. Clarence Wilson, all of them come in 
together, they stayed up there talking. Mr. Arch Lind­
sey asked me, “ Bubbles, what is the matter with your 
hand?”  (Tr. 108) I said, “ There is where you fastened 
the handcuffs too tight,”  he was talking to me at the 
time the other people were there. I have never seen this 
man, Mr. Bryant before, I never paid any attention to 
them then as there is so many sightseers come in there 
1 thought they were sightseers. I didn’t know who they



— 26—

were nnt.il they went out. (Tr. 109) I never talked to Mr. 
Wilson, I talked to Mr. Lindsey. Jim X. talked to Mr. 
Wilson. The other boy that was in the cell with us, the 
captain took out and put in the cell with the white boy.

ON CROSS EXAMINATION, witness Bubbles 
Clayton testified: (Tr. 110)

Part of my occupation has not been stealing, I have 
farmed all my days.

QUESTION: “ Was it last term, or the term of 
court before last we convicted you of larceny?”

ANSWER: “ That was something I wasn’t guilty 
of. You just convicted me for something I was not 
guilty of. They picked up the right boy and fined him 
for the same thing. They fined him for the same thing 
and sent him to the county farm.”

QUESTION: “ They fined him for receiving stolen 
property, and the property you had stolen?”

ANSWER: “ No sir, they did not.”

MR. ADAMS: “ If the court please, I am objecting 
to this. He couldn’t know -what the record was.”

MR. SMITH: “ He can tell what happened, volun­
tarily. ’ ’

On the night of November 18th, I was out in the 
country, I don’t know what day of the month it was but 
I know all of November I was out in the country.



-27-

QUESTION : “ You hijacked Mr. Frank and Miss 
Hutchins on November 18th and shot her, didn’t you?”  
(Tr. I l l )

ANSWER: “ No sir, I did not.”  “ I don’t know 
Miss Hutchins.”

QUESTION: “ You shot her in the arm, didn’t 
you?”

ANSWER: “ No sir, I did not.”

QUESTION: “ Did you say you never steal?”

ANSWER: “ No sir, I haven’t stolen nothing in my 
life.”

QUESTION: “ They sent you to the penitentiary of 
Missouri for stealing?”

ANSWER: “ I never stole it myself.”

QUESTION: “ You are never guilty of anything 
they charge you with?”

ANSWER: “ But I was with the boy that got it; I 
didn’t take it myself.”

QUESTION: “ You served a time in the Missouri 
penitentiary for it anyhow?”

ANSWER: “ Yes sir.”

QUESTION: “ When was it you served that term?”

ANSWER: “ It was in ’31.”



■28—

QUESTION: “ After yon were arrested and in cus­
tody, did you not tell the officers on a number of oc­
casions where the stolen articles were which they could 
find, and which they recovered and sent back to the own­
ers ? ’ ’

(Tr. 112) THE COURT: Let me see you gentlemen 
a moment. (Here the court conferred with the counsel 
for the state and defendants.)

THE COURT: Objection sustained.

We went to Missouri the night of December 21st, in 
Jim X ’s car. I don’t know what night was January 12. 
On January 12, I left from down here at 100 Matthews 
Street about 8 o ’clock. I come up to a girl’s house on 
Broadway (Tr. 113) called Annie, and she was not at 
home, and I sat up there, I guess an hour and a half 
waiting on her to come back and she never did come, and 
I got up and walked on back, I don’t know exactly where 
I was at 8 or 8:30 that night of January 12, but I left 
from down there at 8 o ’clock, from Katie’s, coming on 
up to Annie’s house. On January 10th, I was in Ten­
nessee, on January 5, I was over in Tennessee, on Jan­
uary 13th, they had me, putting me up. I was not out 
by the golf course at 8:30 on January 12, I was in Ten­
nessee at that time. (Tr. 114) I was arrested January 
13th.

QUESTION: You heard about Mr. Wilson being



- 2 9 -

shot in the eye. You didn’t do it, of course, did you? 
Were you guilty of shooting Mr. Wilson?

ANSWEE: No sir, I is not guilty.

QUESTION: You were somewhere else at that 
time?

ANSWEE: Yes sir.

QUESTION: You are positively not guilty of that?

ANSWEE: I am not guilty of it.

QUESTION: You don’t know who did it?

ANSWEE: No sir, I don’t know who did it, but 
there isn’t but one thing I can say. I can say sometime 
that night, after I guess about 11, there is a boy come 
by the house, called “ Slick.”  He come by there. He was 
shot in the right shoulder. He come by there and he 
gave me his pistol. He told me that he got shot up in 
Old Town, in a crap game, and he had to go to the doc­
tor. ”  (Tr. 115) They brought me to the police station 
first, after they took Mr. Wilson to Memphis, they took 
me to the jail at Osceola for safekeeping. I don’t know 
why I was taken down to the death cell. (Tr. 116) Mr. 
Lindsey, Mr. Herman Spicer, and Mr. Hale Jackson took 
me out in the cornfield one night, they say to keep a 
bunch of white men from catching me. (Tr. 116) On Sun­
day night they drove me to Memphis, from there they 
drove fast to keep a car from catching us, they were



— 30-

hurrying me away from Mississippi County. Mr. Lind­
sey and Jim X. were riding in the back seat. Mr. Her­
man Spicer was driving and Mr. Hale Jackson sitting 
next to him. (Tr. 117) I begged them not to let those men 
following us hang me. The car got pretty close several 
times. I understood at the time those officers were mak­
ing the trip for my protection, while we was going down 
there they kept asking me what in the hell did I want 
to shoot at them, I told them “ I didn’t shoot at you,”  
and they told me, “ You are a liar.”  Had me handcuffed 
and whipped me. They say there was a mob come to 
the Osceola jail. (Tr. 118) They called Mr. Lindsey to 
come down, it was not on Sunday night they took us 
out, it was on Monday night, to get away from the jail 
and keep me from being hurt. Mr. Jackson kept us out 
in a field until Mr. Lindsey could get there, they put 
a hand on me that Sunday night for shooting Clarence 
Wilson, they kept telling me that they were going to 
bring a white woman to identify me. I said “ bring her 
on here, then. There isn’t any one can identify me, 1. 
have been with these white folks, and I was born there, 
raised here, and I know how to get along with them.”  
(Tr. 119) I know that we were taken from Osceola and 
taken to the death cell for our own protection.

QUESTION: I am asking you now, for the purpose 
of contradicting you, and for that purpose alone, while 
in that car, you didn’t turn around to Mr. Arch Lindsey



— 31—

and say that “ I did have something to do with that girl, 
but I didn’t complete the job.”

MR. ADAMS: That is objected to.

THE COURT: Sustained.

QUESTION: You know Mr. Lewis Wilson, don’t 
yon? (Tr. 120)

ANSWER: No sir.

QUESTION: I will ask you if yon did not stick him 
up, and then tell Mr. Lindsey where he could find his 
watch and other stuff?

ANSWER: I did not.

MR. ADAMS: I object.

ANSWER: I did not.

MR. ADAMS: I object to that. Mr. Dudley has 
announced he is trying to lay a basis for impeachment 
but it occurs to me instead that it is trying to get into 
the record an alleged confession of something, and prob­
ably something not connected with this lawsuit.

MR. SMITH': Whether or not he committed other 
offenses goes to his credibility.

THE COURT: He has denied it.

MR. ADAMS. Exceptions.

Mr. Wilson, Mr. Lindsey and the young man and 
woman all come to the cell together. I did not pay no



attention to them. I guess this hoy and girl stayed 
there about three minutes, and Mr. Arch Lindsey told 
them to go back out and Mr. Clarence Wilson stayed 
down in there, and after a bit of talking, they went out 
and come back a second time. (Tr. 121)

QUESTION: You are a negro man and in there 
charged with shooting the sheriff of this county, who 
had his deputy with him, Mr. Lindsey, you knew that, 
didn’t you, charged with shooting the law?

MR. ADAMS: That isn’t the charge in this lawsuit.

I don’t know no more than what they told me and 
started to whipping me and telling me you done so and 
so, and I did not do nothing and they whipped me and 
whipped and have done whipped me until I couldn’t 
stand up, and I was laying out there and somebody 
come there and poured some cold water on my head, 
and after I got up some guy tole me, said: ‘ ‘ Just tell 
them anything they ask you to keep them from killing 
you.”  I don’t know who it was. they were all white men, 
this guy told me to do so and so, they liked to have 
whipped me to death. (Tr. 122) They had already done 
near killed me before they took me to Memphis. One 
guy come down to Memphis after they got me down 
there and asked me questions. I don’t know who he 
was, he was a white man. I know Mr. Lindsey and Mr. 
Wilson. I know them all the time. I don’t know but 
one reason they was there, I thought they come down

- 3 2 -



— 33—

there and there was a woman come down there, for a 
hill of sale to try to get Jim X. to sign his car over to 
and this was the thing I figured they was down there 
for. (Tr. 123)

WILLIE MANUEL, a witness for the defendants 
testified as follows: (Tr. 123)

I live at Amorel. I don’t remember exactly where 
I was on Friday night before last Christmas, I don’t re­
member the 21st of December, it has been so long. (Tr. 
124) I was in town one night, I don’t know what night 
exactly.

MYRTLE DODSON, a witness for the defendants, 
testified as follows: (Tr. 124)

I live in Blytheville, have been living here 8 or 9 
years. Last fall I was living on Court Street. (Tr. 125) 
On an occasion in December before Christmas, I made 
a trip to state line with some folks, Jim X. Bubbles, 
Evelyn Lewis, Tommy Anderson, myself and Elma Dod­
son, were together, Elma was with Lucient, Katie was 
with Jim X. That is Jim X. sitting over there. Elma 
is in Tennessee. I don’t know where Katie is, she went 
up there with Bubbles. (Tr. 126) I mean this Bubbles 
here. I went with Tom Anderson, I don’t know where
he is now, we were all in one car, it was Jim X ’s car. It 
was before Christmas, about three or four days before



•— —34r—

Christmas. We left here around 11 o ’clock. (Tr. 127) 
Went to state line, we was gone about an hour and a half. 
I sax Jim X. and Bubbles that evening around Katie’s, 
1 saw them about 9 or 10 o ’clock that evening. We all 
come back together. (Tr. 128)

ON CROSS EXAMINATION, witness MYRTLE 
DODSON testified: (Tr. 128)

It was three or four days before Christmas, I don’t 
remember what night Christmas night was on, Tuesday, 
I don’t know what I done the Sunday night before that, 
I stayed home on Monday before Christmas, on Satur­
day before Christmas, seems like I did some washing. 
(Tr. 129) I don’t know what I did on Saturday night 
before Christmas, and on the night before that I don’t 
know what I did, I don’t know that it was Friday night 
this thing is supposed to have happened.

Evelyn Boyon, a witness for the defendants, testi­
fied as follows: (Tr. 129)

I live in Blytheville, lived here about 7 or 8 years. 
(Tr. 130) I remember making a trip to state line with 
some other folks in a car before Christmas. Jim X. and 
Bubbles were in the crowd that went, up there. I see 
Jim X. and Bubbles here, they are two of the negroes 
that went up there with us, the girl in there went too, 
she is Myrtle Dodson. The man over there is Willie. 
(Tr. 131) Lewis also went up there with us. Myrtle



— 35

went with a boy named Tommy, I was with Bubbles, it 
was before Christmas, I don’t know how long before 
Christmas. (Tr. 132) The whole crowd was together all 
the time that night, we come back to Blytheville about 
12 or 1 o ’clock.

ON CROSS EXAMINATION, witness EVELYN 
BOYON, testified: (Tr. 132)

I don’t know whether it was as much as a week be­
fore Christmas or not, I know it was before Christmas. 
I know Jim X. and Bubbles pretty well. I remember 
the night Mr. Wilson got shot. I saw Jim X. and Bub­
bles that night.

QUESTION: Tell the jury whether you had a con­
versation with Bubbles that night, in which he told you 
that he had shot a sheriff and had to leave town.

MR. ADAMS: That is objected to.

THE COURT: Sustained.

It was about 11 o ’clock that night, we went to state 
line. (Tr. 133) We left here from Blytheville. Jim X. 
has a car nearly ever since I have known him, he and 
Bubbles go around together a lot in the car, they are 
together practically every night.

LUCIEN TAYLOR, a witness for the defendants, 
testified: (Tr. 134)



— 36—

I live down on Franklin here in Blytheville, have 
been living here a pretty good while, I went up to state 
line, I don’t know when it was, it was one night, the 
night I went up there, I went with Myrtle, Jim X., Bub­
bles, and Katie. Jim X. and Bubbles are here now, 
there they are. There were eight of us went. (Tr. 135 ) 
Katie is not here now. I had a girl with me but she isn’t 
here. Jim X. was with Katie, Katie is not here that 
I know of. Bubbles was with Evelyn, I saw Jim X. and 
Bubbles that evening before we started up there, they 
were at home before they went up there, I don’t know 
what time of the evening it was, I first saw them. (Tr. 
136) Before we went up there that night, there was a 
crowd of us playing cards, Jim X. and Bubbles was play­
ing cards there, I don’t know how long we had been play­
ing cards before we went up there. I played cards for 
about an hour I guess.

On CROSS EXAMINATION, witness Lucien Tay­
lor testified: (Tr. 136)

We went up there about 11 o ’clock, we played cards 
about an hour before we went, (Tr. 137) I may have al­
ready been playing when they got there, they may not 
have gotten there before we started, I never paid no at­
tention. That is the first time I had been to state line 
with them. I don’t know about them working, they tell 
me Jim X. and Bubbles make a crop, I don’t know 
whether they had their guns with them the night they



— 37—

went to state line. (Tr. 138) I don’t know when it was 
we went up there. It was not as long as three weeks be­
fore Christmas, but I don’t know when it was.

ON RE DIRECT EXAMINATION, Witness Lueien 
Taylor, testified: (Tr. 138)

It was four or five days, I reckon, before Christmas, 
but I didn’t pay any attention.

JIM X. CARUTHERS, one of the defendants, testi­
fied in his own behalf, (Tr. 138)

I am 19 years old, have lived at Blytheville all my 
life, been living in Blytheville three or four years, lived 
out at Sandy Ridge in the country, have worked on a 
farm. The last man I worked for was Mr. Marvin Robin­
son, I picked cotton for him last year. (Tr. 140) I hauled 
cotton pickers last fall, I picked cotton. I have worked 
every crop year for the past several years. I don’t know 
when I first saw Miss Terry, there was one lady come, 
over to Tucker to the penitentiary where I was. I heard 
her testify. The night this happened, we was at home 
playing cards, I guess until about 10 o ’clock and a bunch 
of us got in the car and went by Bubbles ’ house and got 
him, and we went to the state line and got some whiskey 
and started drinking it. The Friday night that she men­
tioned the Friday night before Christmas, or any other 
night, I was not out there, with Bubbles or anybody else 
and held up anybody else. I never held up their car. (Tr.



■38—

141) I never did on that night or any other night at­
tack her and abuse her. On that Friday night I was play­
ing cards on 100 Matthews Street. Katie was living 
there, I don’t know whether Katie is in town or not. 
That night, me and the other fellows left with her and 
Myrtle and Bubbles, and three or four more boys, I can’t 
call their names, one boy is in there and the other boy out 
at Amorel, and a car load come in there and we gave them 
a party, I gave you the name of that boy as a witness. (Tr.
142) We started playing cards along about 6 o ’clock that 
night, and dancing and going on, and after the crowd 
left we got in the car and went to the state line and got 
some whiskey. That was my car we went in that night. 
I have had that car about a year, I got it in Missouri. It 
is all paid for, I bought the car second hand. (Tr. 143) 
(here defendant offered evidence of title as to ownership 
of the car, and evidence that he had purchased a license 
for the car, which was introduced without objection on 
the part of the state, and said papers are offered and in­
troduced are marked Exhibit 1 and Exhibit 1-A to the tes­
timony of Jim X. Caruthers, Tr. 143)

After I was arrested they had me down at Tucker 
farm, I was kept in the death cell down there, there was 
also another colored boy there called Green, he was in the 
same cell with me, there were three beds in the cell. In 
the next cell to us was white boys, and one cell Mr. 
Barnes and his boy and in another cell, a fellow called



- 3 9 -

Mark Shank. (Tr. 144) That was all that was in there, 
all of them were in there at the time Mr. Lindsey came 
down, except Green Phillips. The captain come and 
taken him out before they g*ot down there, leaving me and 
Bubbles in the cell. Mr. Lindsey and Mr. Wilson and 
another man and woman come down there, I couldn’t say 
whether the woman and man are the ones who testified 
here this morning. I didn’t talk to them at that time, 
they did not try to talk to me. (Tr. 145) Mr. Wilson 
talked to me, the man and woman were not there at that 
time. They pushed the man and woman out the door and 
told them to go on out and Mr. Wilson and Mr. Lindsey 
stayed. Mr. Wilson asked me about a bill of sale to my 
car, asked me to sign my name to it. I did not do it. (Tr. 
146) He said he wanted it signed over to him, wanted it 
to go on his doctor and hospital bills. I did not hold up 
the car the woman was in on the 21st of December, I 
didn’t then or at any other time attack or assault her. I 
did not hold up the hoy at any time.

ON CROSS EXAMINATION, Witness Jim X. 
Caruthers testified: (Tr. 146)

I have been in Blytheville three or four years. I am 
19 years old, now, I have been going to school until two 
or three years ago. (Tr. 147) The automobile cost, I 
think. $349.00 something like that, $300.00 and some odd 
dollars, I bought it in March. I bought it, I think it was 
in January, it was December. I think it was December



—40—

or January, or a little before Christmas. I believe it was 
in 1933, spring like, little before Christmas I think, I 
mean the fall of 1933. (Tr. 148) I don’t know how far it 
had been driven at the time I got it, I think 12,000 or 
13000, I don’t know what the mileage is now, if it regis­
ters 44000 miles now, I have driven it the difference. (Tr. 
149) I did not pay for it all at once, paid for it by 
monthly payments. I bought it in the fall of 1933, along 
in December. I did not say I paid for it by myself, I got 
money from my mama and sister to help pay for it. I 
bought all the gasoline and oil that was used. (Tr. 150) 
I made all the money picking and chopping cotton. It is 
a six cylinder Chevrolet automobile. I sometimes made 
$1.50 to $2.00 per day picking cotton. That is not my 
cap. I didn’t know that it was found in my car. (Tr. 151) 
I don’t know that the two handkerchiefs with eyes cut 
in them was found in my car. (Here witness puts on 
mask at the request of the prosecuting attorney). That 
does not fit me, it is not Bubbles that I know of. I know 
it was not in my car. I have not seen any guns that were 
found in my car, I don’t know how many were found in 
my car. That big 45 had been in there about one year. 
(Tr. 152) It stayed in the car, I guess it was mine.

QUESTION: I did not ask you that, I asked you who 
owned it.

MR. ADAMS: I don’t know how this line of examin­
ation bears on the thing that this boy is tried for. I ob­



— 41—

ject to it for that reason. I can’t see the purpose of it. I 
don’t think the cap part is admissible.

MR. DUDLEY: Test his credibility, see when if he 
did, really pick cotton.

THE COURT: Yes, he may ask that question.

MR. ADAMS: Exceptions.

That 45 had been there about a year, I got it from a 
white fellow, it wouldn’t shoot. I forgot to take it up to 
the shop and get it fixed up. I never thought about 
having it fixed. (Tr. 153) On the night we went to state 
line, Bubbles and me bought the whiskey, my money was 
picking money. I don’t know where Bubbles got his, he 
was farming. We bought a pint of whiskey and a quart 
of wine, I bought the gasoline for the car. (Tr. 154) I 
got acquainted with Bubbles a little before Christmas 
that fall. I knew him on the night of January 12th, this 
year. I guess my car was parked out there where Sheriff 
Wilson got shot, I don’t know. I went to the police 
station and claimed it and they grabbed me. I didn’t 
run off, I just kinda walked a little and sat down and 
crawled. I guess they did find my car out there with the 
45 stuck up under the back seat in the upholstery. (Tr. 
155) I don’t know about the handkerchiefs with eyes cut 
in them, I didn’t see them there. I don’t know about 
three or four flash lights, it wasn’t only one belonged to 
me, I don’t know who the other flash lights belonged to,



they were not in the car. I will tell you what my car was 
doing out there at that time of the night. I was on Ash 
Street about 7:30 or 8 o ’clock playing pool, (Tr. 156) 
another fellow called Charles called me and wanted me to 
take him to Amorel, and said if he was lucky we would 
get some whiskey and get drunk. I told him all right, 
come to the pool room and get me when you get ready. I 
went to the pool room and after I was there a while, he 
came and told me he was ready to go and I told him I was 
in a game and he told me to let him have my car and he 
would put two gallons of gasoline in it, and I told him all 
right, hurry back, and he got in the car and after a while 
I went out on the street looking for him, and could not 
find him and did not see the car, and got Henry Johnson 
and he told me to come on and we would look for the car, 
and Henry Johnson took me down by the oil mill where 
the fellow lived and we did not see the car down there and 
he took me on back home, I went by home thinking may­
be he missed me on Ash Street and I went down home 
looking for him and he wasn’t there. I went back to Ash 
street and he put me out there, then Henry told me that 
he had to go home, it was getting kinda. late, he went 
somewhere, him and his wife got in the car and he was 
fixing to go home and I told him to take me to state line 
and I would pay him for it. I went to the state line and 
did not see no one up there. It was getting 12 or 12:30 
and he brought me on home, (Tr. 157) and this fellow,



— 43—

Sam Wilson that had my car was sitting on the porch. 
He told me that he got into it and left my car, and I asked 
him where he left it and he said on the hard road, and 
I asked him who he left it with and he said “ Nobody, I 
got in a shooting scrape. ’ ’ He told me to go look for the 
car and I went up to look for the car and then is when I 
went to the police station and told them the car had been 
stolen. I know Mr. John Brewster, I don’t know the 
desk sergeant, Mr. Charley Short.

QUESTION: I will ask you for the purpose of con­
tradicting you, didn’t you go in the police station and tell 
Mr. Short your car had been stolen, and he asked you 
when it had been stolen and you told him that night, that 
when you and your girl were parked up there two negroes 
came along and ran you out and stole your car; didn’t 
you tell Mr. Charley that that night when you came over 
there claiming that car?

ANSWER: (Tr. 158) Yes sir, I told him some­
thing like that, I told him I was out on the oil mill road 
and I was robbed, that was not the truth. I didn’t know 
what happened that night. I didn’t knowMr. Wilson and 
Mr. Lindsey had been shot at. I knew who had taken my 
car. (Tr. 159) I told them that because I was scared to 
tell any more. They started beating me. I told them 
that when I first went in there. (Tr. 160) That is not 
my flash light, it was not in my car when I had it. I 
don’t have two short flash lights down at Katies’. I did 
not know they found two flash lights under a mattress at



44

Katie’s house. I did not tell them anything. I know Mr. 
Rainmiller, I talked to him at some length in Memphis. 
I did not tell him in Memphis that me and Bubbles had 
hid those flash lights in Katie’s mattress. (Tr. 161) I 
talked with him a long time, that was after they had done 
beat me up so that everything they asked me I said 
yes. I guess they searched down at Katies’ because I 
was staying down there, I never saw that flash light be­
fore. That looks like the one they found in my car. The 
pistol is broken, it won’t shoot, (Tr. 162) it belongs to 
Winston Sims. After I got the gun from him, he got 
killed. I didn’t tell Mr. Rainmiller where they would 
find Mr. Lewis Wilson’s watch that had been stolen, nor 
Mr. Atkins’ radio.

QUESTION: I am asking you, for the purpose of 
contradiction, if you did not tell Mr. Rainmiller about 16 
different robberies, and tell him in each particular case 
where they would find where you had either sold the stuff 
or had it hidden, and he called Mr. Arch Lindsey over 
the telephone and Mr. Lindsey would go find the stuff! 
(Tr. 163)

MR. ADAMS: I object to that line of examination.

THE COURT: I am holding he is the state’s wit­
ness, being collateral matters.

MR. ADAMS: I think the examination has gone as 
far as it might.



ON RE DIRECT EXAMINATION, Witness Jim X. 
Caruthers testified: (Tr. 164)

My sister lives in Blytheville, she lives in Robinson’s 
addition. My father lives in Missouri. My mother is 
staying down in Robinson’s addition. I never saw that 
flash light before.

ON RE CROSS EXAMINATION, Witness Jim X. 
Caruthers testified: (Tr. 165)

I was arrested, and just before I went in the police 
station and told Mr. Short that, I meant the girl was 
Katie. She was with me when I was arrested. I did not 
go by her house and make her come up there, she came up 
there in the car (Tr. 166), in DeWitt’s car, the same car 
I came in. (Here is was stipulated that on January 12, 
1935, the speedometer of the automobile of the defendant, 
Jim X. Caruthers, mileage showed approximately forty- 
four thousand miles.)

MR. EDDIE B. DAVID, a witness for the state, in 
rebuttal, testified: (Tr. 167)

I am a deputy sheriff of this county. I searched the 
car of the defendant, Jim X. Caruthers, after his arrest 
January 12, 1935. We found the car West of 61 on the 
gravel road about a quarter of a mile from the intersec­
tion of the gravel road and 61, behind the golf course. 
That is something like three or four hundred yards from 
where it is said Sheriff Clarence H. Wilson was shot on 
that night. In the car I found that cap, hood there, and



— 46—

another cap with a bill on it, dark grey cap, and that was 
up under the cowling, they had a heater on it, and up 
under the cowling and over the heater was where I found 
that, and in the pocket of the car was two handkerchiefs, 
white handkerchiefs, one had been twisted on each end, 
folded in a three cornered shape and twisted as if it had 
been tied. I did not find any weapon there at that time.

ON CROSS EXAMINATION, Mr. Eddie B. David 
testified: (Tr. 168)

The handkerchiefs and cap were carried to the police 
station. I don’t know where they are now.

CLARENCE H. WILSON, a witness for the state, 
in rebuttal, testified: (Tr. 169)

I am sheriff of Mississippi County. It is not true 
that when Miss Terry and Mr. Bryant were taken to the 
penitentiary for the pupose of identifying those alleged 
to have assaulted them; that they were taken and led 
directly by Mr. Lindsey and myself to these defendants. 
Mr. Lindsey and myself carried this boy and girl to 
Tucker Farm. They were carried down to the death 
house. This consists of four cells. They were carried in 
there and were told when they went in there to look at the 
occupants of those cells and not say anything there at all 
whether they could identify anybody or not. There was 
a lawyer there, Mark Shank (Tr. 170) in one cell, Mr. 
Barnes and his boys in one cell, Green Phillips and a fel­



- 4 7 -

low who was dark complected, or a negro in another 
cell, and Jim X. and Bubbles in another cell. The boy 
and girl went in there, they did not spend over 5 minutes 
in the place, and the girl whispered to me as she went out 
near the door that the ones in the far cell were the ones 
who attacked her. Neither Mr. Lindsey or I or any other 
officer either by word of mouth or indication pointed out 
to them, which cell the men we suspected were in, and we 
did not know which cell they were in ourselves, until we 
got down there. (Tr. 171) I was shot on the night of 
January 12th, was in the hospital nine days, but out of 
my office thirty-one days. It was some three or four 
weeks after that time, probably sixty days after January 
12th.

Witness JIM X. CABUTHEBS, BECALLED, tes­
tified in his own behalf: (Tr. 172)

I have never been arrested on any charge before
this.

This is all the testimony in this case.



---4:8-- -

BRIEF AND ARGUMENT OF APPELLEE

1.

THE COURT COMMITTED NO ERROR IN RE­
FUSING TO QUASH THE INDICTMENT 5588, STATE 
OF ARKANSAS vs. JIM X. CARUTHERS, AND IN­
DICTMENT 5591, STATE OF ARKANSAS vs. BUB­
BLES CLAYTON, UPON MOTION OF THE DEFEND­
ANTS,

Appellants urged four reasons why the indictments 
should have been quashed, which will be taken up and 
discussed in order. The following three reasons were 
urged prior to the trial and were included in appellant’s 
motion for new trial, which was properly overruled by 
the court, to-wit:

1. That the indictment was not signed either by the 
Prosecuting Attorney himself or any authorized person 
for him.

This contention is without merit since this court 
has consistently held in a long line of cases beginning 
with Anderson vs. State, 5 Ark. 444, that it is not nec­
essary that the indictment be signed by the Prosecuting 
Attorney, but is good and sufficient if it is found by the 
Grand Jury and endorsed by their foreman.

In the case of Indictment 5588, the following endorse­



— 49—

ment is found on the reverse side, Clerks Transcript 
Page 2:

H-170 
No. 12
State of Arkansas 

vs.
\ Jim X. Caruthers

A  TRUE BILL

C. S. Lemons 
Foreman

And on the reverse side of indictment 5591, shown 
at Clerk’s Transcript, Page 2; is the following endorse­
ment :

No. 13
State of Arkansas 

vs.
Bubbles Clayton

A True Bill 
C. S. Lemons 
Foreman

2. That the indictment does not show filing as re­
quired by law or statute, by the clerk.

We call attention to the Clerk’s transcript, page 2,



— 50 —

in cases Nos. 3944 and 3945, shows that the reverse side 
of both indictments bear the following endorsement:

“ Filed in open court in presence of all Grand
Jurors this 1st day of April, 1935.

Id. M. Craig, Clerk.
By A. F. Smith, D. 0 .”

It is apparent that this requirement of the statute 
has been complied with and that this assignment of er­
ror has no basis in fact.

3. We think that appellant’s contention that there 
was no order for the issuance of a bench warrant shown 
on the part of the court, and no basis for the issuance of 
bench warrant appears, is without merit and frivolous, 
since it is not material whether bench warrant was issued 
in this case or not, since at the time the indictments were 
returned, the appellants, Caruthers and Clayton, were be­
ing held by the officers on suspicion of having committed 
this and other crimes, and the indictment of these appel­
lants was duly served on them more than forty-eight 
hours before they were arraigned, (Tr. 3) and no objection 
has been entered here against the form or method of such 
service. The form and intent of the law was complied 
with in this respect, and it was not error for the court 
to refuse to quash the indictments for the above reasons.

4. The fourth reason urged by appellants for 
quashing the indictments is that appellants being negroes



— 51—

were denied the privileges and immunities guaranteed 
them under the Constitution of the United States, that 
is the right of a trial by jury of their peers, in that no 
negroes were on the Grand Jury which indicted them 
or the petit jury which tried them, and that this was a 
discrimination against them on account of their race 
and color, and a violation of the 14th Amendment to the 
Constitution of the United States and a denial of their 
rights under “ the due process cause”  thereof.

The record in these cases shows that the appellants 
were apprised of the indictments at least forty-eight 
hours prior to the time they were arraigned. The record 
fails to disclose any objection to the Grand Jury by ap­
pellants at the time the Grand Jury was impaneled, so 
we must assume that no objection was made by appel­
lants or their counsel. The appellants were represented 
by counsel at the time the case was tried, and no nota­
tion appears in the record that any objection was made 
to the panel because there were no negroes selected. 
Neither is there anything in appellants motion for new 
trial to indicate that their counsel felt that appellants 
were deprived of the right of a fair trial because no ne­
groes were on the Grand Jury which returned the in­
dictment or the petit jury which tried the case. An ex­
haustive search of the transcript fails to disclose any 
testimony upon which to base such an argument as is 
made in this case. The only thing that would even tend



— 52-

to suggest that there were no negroes on the Grand or 
Petit Jury appears not in the record, but in the brief 
filed by appellant’s counsel, in which the statement is 
made that there were no negroes on the Grand or Petit 
Jury.

This question is not without precedent in this state, 
for this court has passed on it more than once. The 
first time the question was raised was in Eastling vs. 
State, 69 Ark. 189, decided March 30, 1901. In that case, 
Ed Eastling, a negro, was convicted of murder in the 
first degree, and one ground urged as reversible error 
was that he was deprived of the right of a fair trial by 
his peers, as guaranteed by the 14th Amendment to the 
Constitution, in that there were no negroes on the Grand 
Jury, and that this discrimination denied him the equal 
protection of the laws. This court, through Chief Jus­
tice Bunn, said: (Page 191)

“ It is sufficient to say, in the outset of the dis­
cussion of this particular subject, that a mere ab­
sence of negroes from the Grand Jury can not of it­
self be considered as a sufficient showing to sustain 
the motion to quash on this ground. It must ap­
pear that the exclusion of the negroes from the 
Grand Jury was brought about for the purpose sole­
ly of denying the equal protection of the laws to the 
defendant, or his race, on account of race or color. ’ ’

This decision was quoted with approval by this court 
in Hannah vs. State, 183 Ark. 810 (Page 814).

There is nothing in the transcript to show whether



-53—

or not there were negroes on the Grand or Petit Juries. 
However, assuming that there were none, and passing 
for the moment, the question of timely objection by ap­
pellants, under the above decision, this would not con­
stitute error, since there is no showing on the part of 
appellants that there was any intention on the part of 
the Jury Commissioners to discriminate against the ap­
pellants or the members of their race, because of their 
race or color. Nor is there any showing on the part of 
appellants that there were in the Chickasawba District 
of Mississippi County, at the time of the selection of the 
Grand and Petit Juries, any negi'oes who were eligible 
to serve on those juries.

With regard to the necessity for objections on the 
part of appellants, let us consider the case of Tillman vs. 
State, 121 Ark. 322, decided December 13, 1915, in which 
the appellant, a negro, was indicted for the unlawful 
sale of liquor, and upon trial was convicted. Before 
trial, he presented a motion to quash the indictment on 
the ground that he was a negro, and that the Jury Com­
mission in selecting the jury had excluded negroes. 
Chief Justice McCulloch, speaking for this court, said: 
(Page 325)

“ It should always be borne in mind that the 
indictment by the Grand Jury is a mere accusation, 
and that no person accused of crime is entitled to 
have the accusation made by any particular Grand 
Jurors or class of Grand Jux*ors. When a negro is



•54-

accused of crime, if he has the right to object at all, 
that negroes are excluded from the G-rand Jury on 
account of their race, he should do so at the time 
of the formation of the Grand Jury, and not there­
after. * * # We are of the opinion, therefore, that 
appellant did not properly raise the question of his 
right to object the organization of the Grand Jury, 
which returned the indictment against him.”  See 
Ware vs. State, 146 Ark. 321 (Page 334).

Of course, it has been held by this court and also by 
the Supreme Court of the United States that a motion 
to quash an indictment for the reason that negroes were 
excluded from the jury, after the indictment has been re­
turned and the case is ready for trial, are timely in cer­
tain instances. However, both courts limit this right to 
situations where the Grand Jury has been impaneled 
prior to the time of the arrest of the accused. Such a 
rule would not be applicable here, since appellants were 
arrested some months prior to the time their cases were 
considered by the Grand Jury. Certainly if the motion 
to quash in the Tillman case which was made subsequent 
to indictment and prior to trial, was not timely, then by 
no stretch of imagination could this objection by appel­
lants be considered timely, when it is advanced for the 
first time in their brief in this court, especially since this 
court, in the case of ITicks vs. State, 143 Ark. 158, decided 
March 29, 1930, held, quoting Section 1 of the syllabus:

“ CRIMINAL LAW — OBJECTION RAISED 
ON MOTION FOR NEW TRIAL—The contention 
that defendants, who were negroes, were discrimin­



— Se­

ated against in that no members of their race sat or 
were summoned to serve on either the Grand or 
Petit Juries, was raised too late when first presented 
in their motion for a new trial. ”

Counsel for appellants now claim that these matters 
were not raised in the court of first instance because it 
would have been dangerous for counsel who appeared for 
them to properly raise this question. Of course, there is 
no merit for such a plea, for in the first instance there is 
nothing in the record to indicate that appellant received 
anything other than a fair and impartial trial, and that 
it was held without any undue influence being- exerted 
on the jury or court officials, either by mobs or other 
methods. The record fails to disclose any demonstration 
or undue excitement in the court room during the prog­
ress of the trial, nor does it reflect that any unusually 
large crowd attended the trial. It is inconceivable to us 
that an attorney would accept a fee for defending a per­
son under indictment, then fail to do so, and claim he was 
afraid to make a proper defense. Such a person should 
not be permitted to- practice law in this or any other state. 
However, we are acquainted with the learned counsel who 
represented these appellants in the trial court, both per­
sonally and by his reputation as a lawyer, and know from 
such acquaintance that such facts as alleged by appel­
lants in their brief to have surrounded the trial of this 
cause, were not present. Aside from that, this court well 
knows that if there were any ground for fear an intimi-



— 5 6 —

dation on the part of the attorney for appellants in the 
trial court, then this fact would have been included in ap­
pellants motion for a new trial.

Counsel for appellants cited the case of Patterson vs. 
State of Alabama, 227 Ala. 261, however, the facts in the 
two cases are not similar, since in the Patterson case, 
counsel made a record in the lower court which was not 
done in the instant case. The case of Lee vs. State, 161 
Atlantic (Maryland) 282, and Davis vs. State, 12 Pac. 
(2nd) (Oklahoma Criminal Appeal) are cited also. The 
first of these two cases says the negroes must be inten­
tionally excluded, and there is nothing in the instant case 
to show any intentional exclusion of negroes by the Jury 
Commission. In the Davis case, the court said that the 
burden of proving prejudice is on the negro (appellant), 
and they introduced no testimony to show any prejudice, 
and the court was therefore of the opinion that all of 
these contentions were without merit.

2 .

THE COURT DID NOT ERR IN REFUSING TO 
GRANT DEFENDANTS’ MOTION FOR CHANGE OF 
VENUE.

Our statute specifically prescribes the method of ap­
plying for a change of venue and is as follows:

“ Crawford & Moses Digest, Section 3088:

“ APPLICATION—HOW MADE—Such order



-57—

of removal shall be made on the application of the 
defendant by petition setting forth the facts veri­
fied by affidavit, if reasonable notice of the applica­
tion be given to the attorney for the State, and the 
truth of the allegations in such petitions be sup­
ported by the affidavits of two credible persons who 
are qualified electors, actual residents of the county 
and not related to the defendant in any way. ’ ’

In the instant case, the statute has been fully com­
plied with except with regard to the affidavits of two 
credible persons. The Clerk’s Transcript at page 7, 
shows the motion for change of venue is supported by the 
affidavit of J. E. Godwin only. Counsel for appellants 
in the trial court, who was not a legal resident of Missis­
sippi County, made a statement to support the motion. 
(Tr. 3 and 4)

Counsel for appellants in the trial stated (Tr. 5) in 
response to the court’s question (Tr. 4) that the affiant 
was not acquainted with any portion of the county, ex­
cept Blytheville and its vicinity.

This court has always required strict compliance 
with this statute. Paragraph 3 of the syllabus, in the 
case of Davis vs. State, 170 Ark. 602, is as follows:

“ VENUE—PETITION FOE CHANGE—SUP- 
POETING AFFIDAVITS. A motion for change of 
venue in a criminal case was properly overruled, 
though in proper form, where it contained the sup­
porting affidavit of only one person.”



The only remaining question is whether there was 
any absence of discretion on the part of the trial court 
in denying the change of venue, despite the fact that two 
affidavits were not filed in compliance with the statute. 
We think not, since the testimony clearly shows that af­
fiant is not a credible person within the meaning of the 
statute, since he was acquainted only with the feeling 
existing in and around the city of Blytheville.

The court, in Speer vs. State, 130 Ark. 457, in re­
ferring to this statute, said:

“ The statute contemplates that subscribing 
witnesses shall have fairly accurate information con­
cerning the state of mind of the inhabitants of the 
entire county toward the defendant.

This case followed the rule laid down in the case of 
White vs. State, 83 Ark. 36, which is as follows:

“ It is not an abuse of discretion to refuse pe­
tition for change of venue supported by the affida­
vits of four affiants where, on examination of such 
affiants in court, it appeared that three of them 
based their opinion on statements of people living 
in one or two localities in the county and that their 
information was not sufficient to form an opinion, 
and that they were not credible.”

This court has uniformly held that unless the trial 
court has abused its discretion in overruling a change 
of venue, the order is conclusive on appeal. Bryant vs. 
State, 95 Ark. 239—Ford vs. State, 98 Ark. 139—McElroy 
vs. State, 100 Ark. 301—Hedden vs. State, 179 Ark. 1080

— 5 8 —



— 59—

-—Avery vs. State, 149 Ark. 646—Padgett vs. State, 171 
Ark. 558—Williams vs. State, 162 Ark. 285.

Since there was only one supporting affidavit filed 
with the motion for change of venue, and since affiant 
had no knowledge of the state of mind of the inhabitants 
of the entire county toward appellants, we feel that no 
error was committed by trial court in overruling the 
motion.

3.

THERE WAS SUFFICIENT EVIDENCE TO 
PROVE DEFENDANTS GUILT.

The counsel for appellants urged that there was not 
sufficient evidence to identify appellants as the persons 
guilty of the crime for which they were tried and con­
victed. The counsel calls attention to the testimony of 
the prosecuting witness, Virgie Terry, also of Wylie Bry­
ant. In this respect, Virgie Terry testifies positively as 
to defendants’ identity. (Tr. 70, 75, 77, 91 and 92 and 
100.)

Wylie Bryant, witness for the state, identifies de­
fendants positively as the ones who held him at bay with 
guns, and who ravished Miss Terry. (Tr. 12, 14, 17 and 
51.)

Appellants deny their identity as the ones who com­
mitted the crimes. This made an issue of fact for the 
jury and it found this fact against the appellants. We



— 60

respectfully call the attention of the court to Houston 
vs. State, 190 Ark. 1177-79 SW (2nd) 999, in which the 
facts were almost identical with those in the instant case 
and this court held there was sufficient evidence to war­
rant the jury in convicting the defendant of rape.

Furthermore, there are certain circumstances of iden­
tification which we submit should be considered in con­
nection with the testimony of the prosecuting witness 
and Wylie Bryant on the matter of identification, and 
which were no doubt considered by the jury in the trial 
court. In this respect, these circumstances are as fol­
lows:

Witness Bryant testified, (Tr. 9) that the negroes 
had two flashlights, that they had something over their 
faces, (Tr. 35), that they wore handkerchiefs over their 
faces, (Tr. 43) that they left with their masks on, (Tr. 
49).

Prosecuting- witness, Virgie Terry testified, (Tr. 69, 
70) that the negroes had two flashlights, that they wore 
masks, (Tr. 74), that the masks they wore were white 
handkerchiefs and one had a colored border, (Tr. 85).

Appellant, (defendant below) Jim X. Caruthers, 
identified his automobile, (Tr. 143) he did not know 
the mileage, but if it was 44,000 miles, he had driven the 
car the difference between 12,000 or 13,000 miles, and 
44,000 miles, (Tr. 148). Admitted that it was a six cyl­



— € 1-

inder Chevrolet automobile, denied that it was his cap 
found in the automobile, (T'r. 150), denied that he knew 
the two handkerchiefs with eyes cut in them were found 
in his car—admitted that the pistol found in his car had 
been there for a year, (Tr. 151) admitted that it was his 
gun, (Tr. 152)—said that he guessed that his car was 
parked out where Mr. Wilson was shot, that he went to 
the police station and claimed the car as his own, that 
he guessed they found his car with the 45 caliber pistol 
stuck up under the upholstering of the back seat, (Tr. 
154)—denied the ownership of the handkerchiefs and 
the flash lights, except one flash light, (Tr. 155). At­
tempted to explain that he loaned his car to another 
negro on the night of January 12, who left it where it 
was found by the officers, (Tr. 156-157), but admitted 
that he told the officers that he and his girl friend were 
in the car where it was found that night, and were held 
up by some parties, robbed and forced to abandon the 
car, (Tr. 157-158).

Witness Eddie B. David testified, (Tr. 167) that he 
searched the car which Jim X. Caruthers identifies as 
his, after his arrest on January 12, 1935, and found two 
caps up under the cowling in the car, and over a heater, 
and found two handkerchiefs in the pocket of the car, 
one of which had been folded in a three cornered shape 
and twisted on each end as if it had been tied.

These facts developed in the testimony and whicn



we submit corroborates the identification of defendants 
by Miss Terry and Wylie Bryant as the ones who, on the 
night of December 21, 1934, committed the crimes for 
which they were tried and convicted.

For that matter, we feel that the identification by 
Miss Terry and Wylie Bryant alone was sufficient to 
identify these appellants as the persons who ravished 
Miss Terry on the night of December 21, 1934. The 
identification through the sense of sight and hearing, is, 
in our opinion, the best means of identification, and there 
is no question but that Miss Terry and Wylie Bryant 
had the opportunity to see and know Clayton and Ca- 
ruthers. In addition to this, taking into consideration 
the circumstances such as the finding of the handker­
chiefs which could have been used, and no doubt, were 
used as masks, the finding of the caps, flash lights and 
the pistol in the automobile of one of the defendants, 
Caruthers, makes the identification of Clayton and Oa- 
ruthers positive, in our opinion, and no doubt the jury 
found that these appellants were the ones who commit­
ted the crimes for which they were tried and convicted.

As to the allegation of appellant that there was not 
sufficient evidence to sustain the verdict of the jury, this 
court has held that it is sufficient that there is not a total 
want of evidence to support the verdict. Maims vs. 
State, 13 Ark. 285—State vs. Grider, 18 Ark. 297. How­

— 62—



— 63—

ever, in the instant case, there was substantial evidence 
to show defendants’ guilt and to support the verdict of 
the jury, and this court has uniformly held that where 
there is any evidence to support the finding of facts, it 
will not be disturbed. Wiley vs. State, 92 Ark. 586, (and 
cases there cited), Alexander vs. State, 128 Ark. 35, Mc­
Carty vs. State, 175 Ark. 1170, Patterson vs. State, 179 
Ark. 309.

The Supreme Court cannot pass upon the weight of 
the evidence nor the credibility of witnesses. This is the 
province of the jury, and if there is any substantial evi­
dence to support the verdict, it cannot be set aside on the 
ground that it is insufficient to support the verdict. 
Floyd vs. State, 181 Ark. 185. The Supreme Court will 
not disturb the verdict of a jury if support of any legal 
evidence of a substantial character, though contrary to 
the decided preponderance of the evidence. Railey vs. 
State, 174 Ark. 742.

The verdict of the jury, based on substantial evi­
dence will not be disturbed by the Supreme Court, al­
though the court might think it was against the weight 
of the evidence. Southwestern Bell Telephone Co. vs. 
McAdoo, 178 Ark. I l l—Arkansas Power & Light Co. 
vs. Orr, 178 Ark. 329—Missouri Pacific Railroad Co. vs. 
Juneau, 178 Ark. 417—Missouri Pacific Railroad Co. vs. 
Edwards, 178 Ark. 732—Western Union Telegraph Co.



64

vs. Downs, 178 Ark. 933—Hyatt vs. Wiggins, 178 Ark. 
1085, and Davidson vs. State, 180 Ark. 970.

On appeal from conviction, where only sufficiency 
of evidence to support the verdict is attacked, appellate 
court need consider only whether State’s evidence if be­
lieved by the jury warrants verdict of guilty. MeOon- 
nell vs. State, 176 Ark. 1205, 2 SW (2d) 694.

We respectfully submit that there was substantial 
evidence to show the guilt of defendants and to support 
the verdict of the jury.

4.

NO ERROR WAS COMMITTED IN PERMITTING 
EVIDENCE OF OTHER CRIMES COMMITTED BY 
DEFENDANTS AND ADMISSION AND STATE­
MENTS BY DEFENDANTS WITH REFERENCE TO 
SAID CRIMES.

Appellants say that the prosecuting attorney, on 
cross examination of the defendants, questioned them 
with regard to other crimes than that for which they 
were being tried, and that such evidence was developed 
for the purpose of creating such a sentiment and such 
an unwholesome atmosphere in and about the court room 
and with the jury so that it would be impossible for de­
fendants to obtain a fair trial, that the state of public 
mind at the time of the trial was such that evidence of 
defendants ’ guilt of other crimes had a tendency to create



— 65—

a situation almost uncontrollable by the officers and the 
court.

We respectfully submit that this statement is pure 
imagination and not supported in any respect by the 
record and should be disregarded by this court.

It is true, as shown by the record, that the prosecut­
ing attorney, in cross examination of defendants, who 
had testified in their own behalf, questioned them with 
reference to the commission of other acts and crimes 
involving moral turpitude, but, we say as is reflected 
by the record, that this was done for the purpose of dis­
crediting the testimony of the defendants as witnesses.

In McAlister vs. State, 99 Ark. 604, this court said 
that:

“ Any question may be asked a witness on cross 
examination tending to prove that he is guilty of 
specific acts involving moral turpitude, for all such 
acts would tend to affect his credibility as a wit­
ness. ’ ’

To use the language of the learned Justice in the Mc­
Alister opinion, we say the answers to the questions, if 
in the affirmative, would have tended to prove that de­
fendants were so utterly depraved as to render them un­
worthy of belief.

It is true, as has been held by this court, that evi­
dence of specific acts of immorality cannot be used to



66—

impeach a witness, but such, evidence-is,proper for the 
purpose of discrediting his testimony.

A witness may be cross examined as to his particu­
lar acts or conduct that are relevant to the impeach­
ment of his character for truth although they were 
wholely disconnected with the case on trial. (Black face 
ours.)

McAlester vs. State, 99 Ark. 604, citing The Ency­
clopedia of Evidence, 176 . and Little Rock Vehicle and 
Implement Company vs. Robinson, 75 Ark. 548.

The acts of which defendants were questioned were 
acts involving moral turpitude as defined by this court in 
Fort vs. Brinkley, 87 Ark. 400 and State Medical Board 
vs. Rodgers, 190 Ark. 266. The questions complained of, 
were asked on cross examination, and as stated by the 
prosecuting attorney, for the purpose of testing the credi­
bility of defendants at witnesses. The questions asked in 
this respect in the instant case are similar to those asked 
by the prosecutor in the case of Whittaker vs. State, 171 
Ark. 762, and which were approved by this court in that 
case (citing in the opinion, numerous similar decisions of 
this court.)

We respectfully submit that no prejudice resulted 
and the trial court committed no error in permitting this 
testimony to be elicited.



5.

THE COURT DID NOT ERR IN REFUSING TO 
PERMIT THE JURY TO RETIRE FOR THE NIGHT 
OF APRIL 9, 1935.

Counsel for appellants have cited several cases in an 
attempt to sustain their contention that the court erred 
in refusing to permit the jury to retire for the night of 
April 9, 1935, when they reported, after having been to­
gether for two days, that they hopelessly divided as to 
the punishment and requested that they he permitted to 
retire for the night and return for further deliberation 
the following day. The first of these cases is Potter vs. 
State, 42 Ark. 29. We have read the opinion in the Pot­
ter case, and the court discussed in it: 1. Former
jeopardy; 2. Change of venue; 3. Dividing of counties 
into districts, and ex post facto laws; and 4. The bills of 
exceptions must contain all the evidence.

The cases of State vs. Ward, 42 Ark. and Whitmore 
vs. State, 42 Ark. 271, are also cited, but neither of these 
cases appear in volume 42 of the Arkansas reports. 
Counsel probably intended to cite State vs. Ward. 48 Ark. 
36, which covers the same point as is covered by Potter 
vs. State, which is former jeopardy, etc. If this is the 
case they intended to cite, we fail to see how it is in point 
in the instant case. Counsel also probably intended to 
cite Whitmore vs. State, 43 Ark. 271, instead of Whit­
more vs. State, 42 Ark. 271, however, this case involves

— 67—



— 68—

the question of when a prisoner has been placed in 
jeopardy which question is not raised by the records or 
alleged as error in the instant case.

Vaughn vs. State, 57 Ark. 1, cited by appellants at 
page 52 of their brief is also not in point in the instant 
case, since in that case undue influence was exerted on 
the jury by a crowd—this influence continued for hours. 
There is nothing in the record in the instant case on 
which to base a contention that any influence was exerted 
on the jury during the trial.

Johnson vs. State, 68 Ark. 401, cited by appellants, 
page 52 of their brief involves a separation on the part of 
the jury. No such question arose in the instant case since 
the jury did not separate.

In McFall vs. State, 66 Ark. 16, cited by appellants 
at page 52 of their brief, the following situation arose:

The officer in charge of the jury asked a juror 
how they were running, and the juror replied: 
“ Pretty well; I think we will get through in two or 
three hours.”  The officer replied: “ If you do, I 
will get the j udge to come over-and then we may get 
some rest tonight. ’ ’

The court held that this did not show that the juror 
was subjected to undue influence.

Article 2, Section 8 of the Constitution is as fol­
lows :

“ If, in any criminal prosecution, the jury he



— 69—

divided in opinion, the court before which the trial 
shall be had may, in its descretion, discharge the 
jury and commit or bail the accused for trial at the 
same or the next term of said court.”

and this section governs the case in this particular phase. 
That is to say, it gives the court the right to exercise its 
descretion.

The facts disclosed by the record in this particular 
are as follows:

The jury had been deliberating for three hours, (Tr.
178) when they returned and announced that they were 
hung and could not agree on the punishment, and asked 
to be excused for the night. The court did not see fit to 
agree to this request, and feeling that there was a reason­
able chance that an agreement could be reached in a short 
time, the court gave appropriate instructions, (Tr. 176-
179) and sent them back for further consideration of the 
case. As it later developed, the court was correct in its 
assumption, and the county was as a result, saved the ex­
pense of having the jury return the following day. Such 
a matter is certainly one over which the court exercises 
its descretion, and unless some abuse of this descretion 
is shown, there is no reversible error. The statement of 
the juror (Tr. 176) was not responsive to the questions 
asked by the court, but despite that fact, is not such as 
in our opinion amounts to error. We fail to see anything 
in the record which would justify the statement that the



- 7 0 -

trial judge, by his actions and instructions, (Tr. 176-179) 
forced the jury to render this verdict.

We respectfully submit that the judgment of the Cir­
cuit Court of Mississippi County for the Chickasawba 
District should be in all things affirmed.

CAEL E. BAILEY,
Attorney General.

J. HUGH WHAETON,

OEMAND B. SHAW,
Assistant Attorneys General.
Attorneys for Appellee.







IN  T H E

SUPREME COURT OF ARKANSAS
BUBBLES CLAYTON and 

JIM X. CARUTHERS,
APPELLANTS,

VS.

STATE OF ARKANSAS,
APPELLEE.

► Nos. 3944 
3945

APPEAL FROM THE CIRCUIT COURT OF 
MISSISSIPPI COUNTY, CHICKASAWBA 

DISTRICT.

HON. NEILL KILLOUGH, JUDGE.

PETITION FOR REHEARING AND APPELLANTS' 
BRIEF THEREON.

Lewis Rhoton,
Jno. A. Hibbler,

Attorneys for Appellants.
Charles H. Houston,
Carol K ing,

of Counsel.

Montgomery ft Son, Law Brief Printers, Poplar Bluff, Missouri



1



IN  TH E

SUPREME COURT OF ARKANSAS
BUBBLES CLAYTON and 

JIM X. CARUTHERS,
APPELLANTS,

YS.

STATE OF ARKANSAS,
APPELLEE.

►Nos. 3944 
3945

APPEAL FROM THE CIRCUIT COURT OF 
MISSISSIPPI COUNTY, CHICKASAWBA 

DISTRICT.

HON. NEILL KILLOUGH, JUDGE.

PETITION FOR REHEARING AND APPELLANTS’ 
BRIEF THEREON.

PETITION FOR REHEARING.
Come the appellants and file their petition for 

rehearing and for cause state:



2

I.

That the court erred in holding that the trial 
court did not err in refusing to quash the indict 
ments.

II.

The court erred in holding that the trial court 
did not commit error in refusing appellants’ petition 
for change of venue.

III.

The court erred in holding there was any sub­
stantial evidence to support the verdict.

IV.

The court erred in holding that the prosecuting 
attorney did not commit a reversible error in his 
cross examination of defendants, Clayton and 
Caruthers.

V.

The court erred in affirming a death sentence 
based upon the following verdict :

“ We, the jury, find the defendant, Jim X. 
Caruthers, guilty as charged in the indictment at 
death by electrocution. Ike Miller, Foreman.”

Tr. 3944, State of Arkansas, Plaintiff; Jim X. 
Caruthers, Defendant P. A. A verdict in identical 
words was rendered in 3495, Clayton case, Tr. p. 8.

Wherefore, the appellants, Jim X. Caruthers and 
Pubbles Clayton, ask that the judgment of this court



8

affirming the judgment against them in the Chicka- 
sawba District of Mississippi County be set aside 
and that they be granted a new trial. They ask that 
they be granted two weeks from December 5, 1935, 
to file a supporting argument and brief.

LEWIS EHOTON,
JNO. A. HIBBLER,

Attorneys for Appellants.
CHARLES H. HOUSTON,
CAROL KING,

of Counsel.

In the Supreme Court of Arkansas. 
Nos. 3944 and 3945.

Bubbles Clayton and Jim X. Caruthers,
Appellants,

vs.
State of Arkansas,

Appellee.

BRIEF ON PETITION FOR REHEARING.

The foregoing petition for rehearing has been 
filed in accordance with the provisions of Rule 3 of 
this court. The opinion of the court on which the 
rehearing is asked was handed down November 18,
1935, and will be found in Law Reporter, Vol.........,
No......., at page........



4

I.
We wish to address ourselves, first, to the third 

assignment of errors in the petition for rehearing*, 
which reads as follows:

THE COURT ERRED IN HOLDING THERE 
WAS ANY SUBSTANTIAL EVIDENCE TO SUP­
PORT THE VERDICT.

We call the court’s attention to the case of 
Waters Pierce Oil Co. v. Knisel, 79 Ark. at p. 621, 
the Court:

“ Where there was a direct conflict in the 
testimony of two witnesses, the court says: ‘But 
in determining the question, we must look to the 
physical facts described by the record about 
which there is no dispute and if, upon a full and 
fair consideration of these facts, to sustain the 
verdict would require the court to believe that 
which in tbe very nature of things could not be 
true, to believe that which is contrary to human 
experience and common observation, then it be 
the duty of the court to reverse the case upon the 
ground that the evidence is not sufficient to 
sustain the verdict.’ The ease was reversed.”

The italics are ours. The phrase in italics cer­
tainly has a meaning. It is not used as a synonym 
of the preceding phrase.

So, if to deny this petition, requires the court 
to believe testimony, which is “ contrary to human 
experience and common observation,”  then it should 
be granted.

As to whether the prosecuting witness was raped, 
she stands alone, solely alone in her testimony. As 
we shall show later by the records the court, in its



5

opinion, after referring to Mrs. Terry’s testimony 
that she was raped says: This evidence was corrob­
orated in every particular by Wiley Bryant is clearly 
and wholly in error. There is not even one word 
in Bryant’s testimony that even tends to corroborate 
her testimony that she was raped. His only testi­
mony on this point is as follows:

“ Q. Did you hear them say anything about 
this young lady there at all!

“ A. No, sir; I did not.
“ Q. And you saw yourself nothing that 

occurred to her?
“ A. No, sir.
“ Q. If anything did occur to her?
“ A. (No answer.) (Tr., p. 16.)

Bryant does not testify that when he got back in 
the car with Mrs. Terry there was anything in man­
ner, appearance or words that even caused him to 
suspect anything transpired, or had happened to 
her, or to even cause him to inquire of her as to what 
occurred during their alleged forced separation.

There is nothing in the record to show that she 
at that time, or at any other time, even told Wiley 
Bryant that she had been in any manner harmed by 
these appellants or by anyone else.

According to the record, the first ones who ever 
heard Mrs. Terry say she had been raped were those 
in the court room when she testified in this case 
April 10, 1935. She testified that, in rapid rotation, 
the two defendants raped her on the night of Decem­
ber 21, 1934. The first information that appellants 
were even accused of the crime charged in the indict-



6

ments was when the indictments were filed April 1, 
1935. (Tr., p. 2.) It will be assumed her testimony
before the grand jury was at least substantially the 
same as in the trial.

Now, is it not incredible, is it not unbelievable, 
and in the language of this court, in the Waters 
Pierce Oil Company case, supra, “ contrary to human 
experience and. common observation,”  that if the 
gruesome thing’s happened to her on December 21, 
1934, that she did not mention it to Wiley Bryant 
that night! That she did not make it known to any 
one, so far as the record shows, until she appeared 
before the grand jury April 1, 1935. Things do not 
thus occur according “ to human experience and com­
mon observation.”  “ There is a law, which controls 
the destiny, emotions, and acts of womanhood,, as 
inevitable as the inexorable law of g-ravitv,”  that 
would have forced Mrs. Terry to have pursued an 
entirely different course. The record shows the 
prosecuting witness was with Wiley Bryant at the 
time of the alleged rape; there is nothing in the 
record to show why she should not have told him 
about the rape, if, indeed, there had. been a rape. 
We give Virgie Terry credit with being one who 
valued her virtue, first, of all things, and doing this, 
is it not as incredible, as impossible, as unbelievable, 
as was the testimony of Arthur Harris, porter, who 
made gasoline penetrate a stone wall.

The court in its opinion, after stating that Virgin 
Terry had testified that both defendants had had 
complete intercourse with her. says:

“ This evidence was corroborated in every 
particular by Wiley Bryant.”



7

Now with due reference to the court, and to the 
Justice rendering the opinion, we say that a careful 
scrutiny of the picture made by the record in this 
case fails to disclose a single one of the characteristic 
features of rape, except the belated, totally uncorrob­
orated and incredible testimony of Mrs. Terry. The 
record does not disclose that she at any time, or to 
any- one, ever reported a rape, that she testifies 
occurred, December 21, 1934, until she appeared 
before the grand jury April 1, 1935, and then gave 
her testimony at the trial April 10th.

Now, is it not true, that no more credit should 
be given to her testimony than was by this court 
given to the testimony of Harris, the porter, in the 
Waters Pierce Oil Company case, supra. In that 
case this court said the testimony of Harris did not 
make substantial evidence, and reversed the case. 
There only dollars were involved. Here two deaths 
are imminent. Because* Mrs. Terry testifies posi­
tively that both appellants had sexual intercourse 
with her in such a manner as to constitute rape, as 
incredible as her testimony is considered as a whole 
and the other testimony in the case does not make 
substantial evidence.

But let it be remembered that as to whether she 
was raped, she and she stands alone. As to this vital 
fact, fatal to the lives of two human beings, she is 
not sustained or corroborated by the testimony of 
any witness, or by any circumstance. On the con­
trary, there are many things in the records that 
challenge the weight of her testimony to that degree 
that this court should say the* jury was not author­



8

ized or justified in finding appellants guilty.
Now let us revert to that which this court said 

in the Waters Pierce Oil Company case, supra:

“ If * * * to believe that which is contrary to 
human experience and common observation, then 
it would be the duty of the court to reverse the 
case upon the ground that the evidence is not 
sufficient to sustain the verdict.”

The case was reversed. It involved only dollars. 
The instant case involves deaths.

Now, did the testimony in this case give any 
stronger warrant to the jury to render two death 
verdicts, than did the testimony in the Waters Pierce 
Oil Company case, supra, warrant the jury in render­
ing a money verdict! Her testimony, coming as it 
didin such a “ questionable form,”  wholly uncorrob­
orated as to the rape charge, does not make a peg 
of sufficient strength to sustain or support the 
weight of a verdict carrying a death penalty. The 
testimony of Bryant did not corroborate the testi­
mony of Mrs. Terry as to anything except as to an 
attempted robbery, and as to the identification of 
appellants as the ones who committed the attempted 
robbery. The testimony of Wiley Bryant does not 
at all sustain this statement in the opinion of the 
court as to the corroboration. (Tr., p. 16.) This is 
so important we again call the court’s attention, 
especially to questions propounded to Wiley Bryant.

“ Q. Did you hear them say anything about 
the young lady there at all!

“ A. No, sir; I did not.
“ Q. And you saw yourself nothing that 

occurred to her!
“ A. No, sir.



9

“ Q. If anything did. occur!
“ A. No answer.”  (Tr., p. 16.)

Search the record, this is all that will be found 
as to any corroboration Wiley Bryant by his testi­
mony gave as to a rape. It is true that, as to an 
alleged identification at the death cell, he claims to 
have identified the defendants as the ones who held 
up him and Mrs. Terry and. searched them for valu­
ables. Let the transcript speak (Tr., p. 35).

If the court was influenced in making its decision 
to affirm, by the belief that Mrs. Terry’s testimony 
as to being raped had been corroborated to the slight­
est extent by any witnesses, Wiley Bryant included, 
then this error alone not only justifies but demands 
a granting of this petition for rehearing.

A careful reading of the record in this case, 
including the Bill of Exceptions, the Transcripts, 
the Abstracts and Briefs of appellants and of the 
appellee, is far more convincing that if the appellants 
are guilty of any crime, it is that of an attempted 
highway robbery and not the crime of rape.

II.
We now address ourselves to the 4th assignment 

in the petition, which is as follows:
“ The court erred in holding the prosecuting 

attorney did not commit a reversible error in 
his cross examination of the defendants, Clay­
ton and Caruthers.”

The rule is well settled that althoug’h evidence of 
prior convictions is not admissible to prove that the 
defendant did the act in question (Williams v. State,



10

183 Ark. 870; Wilson v. State, 184 Ark. 121) it is 
admissible to impeach the defendant as a witness. 
(Kennedy v. Quinn, 166 Ark. 509; Neely v. State 
Law Reporter, Sept. 2, 1930.)

This distinction is to be explained thusly: Evi­
dence of prior convictions to prove the offense 
charged is excluded because the court feels that its 
admission would unduly prejudice the defendant. 
(Williams v. State, supra.) The end of impeaching 
the defendant is of sufficient importance for the 
court to risk this danger of prejudice to the defend­
ant, however, even when offered for the legitimate 
purpose of impeachment, only certain kinds of evi­
dence are admissible. (Carr v. State, 43 Ark. 99; 
Bates v. State, 60 Ark. 450; Kennedy v. Quinn, supra; 
and Neely v. State, Supra.) Here, apparently before 
the court will risk undue prejudice to the defendant, 
it requires evidence which has very great probative 
force on the question of credibility. It is submitted 
that if the rule is affirmed permitting questions of 
the sort asked in this case, the court is sanctioning 
a dangerous and unjustifiable extension of the rule 
of the Kennedy case, that is, a wealth of evidence of 
lower probative force than a conviction will be admis­
sible and be operative to the prejudice of the defend­
ant. That is, the scope of the prosecution is unlimited 
as to the question it can fabricate if it wishes of the 
type asked in this case. It is dubious if a denial by 
the defendant of such questions can obliterate the 
innuendo of guilt of those offenses conveyed to the 
jury by the constant questioning along those lines by 
the presecutor.



11

In State v. Lamont, 23 S. Dak. 174, 120 N. W. 
1104, the Court was presented with the question of 
the admissibility of questions similar to those in the 
instant case, the prosecutor on cross examination of 
the accused, asked: “Did you not * * * have inter­
course with a daughter of yours?”  Also, “Did not 
your son * * * catch you with your hand under your 
daughter’s dress * * *”

Under the rule enunciated by this Court on Nov. 
18, 1935, in passing on the convictions of the lower 
court (Clayton and Caruthers v. State). These ques­
tions are clearly questions “ relating to actual guilt 
or guilty knowledge.”  However, the Court, in the 
Lamont case, said such questions

“ would certainly have a great tendency to pre­
judice the jury against such a defendant. Any 
juror might conclude that there must be some­
thing in these questions, or they could not have 
been asked by the prosecutor, even if the defend­
ant did deny them. The jury would conclude, 
naturally, under such circumstances, that defend­
ant would deny the matters referred to in said 
questions, even if they were true, and thus 
the jury would naturally consider matter wholly 
foreign to the issue of the ease—matters that 
had not been proven either one way or the other 
in the case, but which had been injected into 
the case by way of insinuation on improper cross 
examination, and which, as a matter of fact, 
might be wholly without foundation, and which 
would naturally have a very damaging effect by 
creating a prejudice against the defendant that 
should not exist * * *.”  p. 23 S. Dakota, 174,178. 

p. 23 S. Dakota, 174, 178.



12

Indeed, in the instant case, the rule of the Ken­
nedy case, however stated, has been violated. Thus 
the defendants were asked questions of this kind:

“ You know that, didn’t you, charged with 
shooting the law?”

It is possible that even in a case where the evi­
dence has been found sufficient to support a verdict 
for the jury in arriving at its decision to have given 
undue weight to evidence of the type under discus­
sion. To that extent it constitutes prejudicial error 
to erroneously admit testimony relating to accusa­
tions of guilt, etc. The defendant has been prejudiced 
wherever evidence has been admitted which is likely 
to induce the jury to give undue weight to the other 
evidence in the case. Thus, where, as here, such 
evidence is erroneously admitted, a jury is more 
likely to over-estimate the probative force of the 
other evidence in the case in its zeal to find that 
the defendant who has thus purportedly have been 
shown to be a “bad man,”  has committed the crime 
with which he is then charged. This is obviously 
prejudicial In a case where the evidence is sufficient 
to sustain a verdict of guilty if rationally weighed.

So, for the sake of argument, even if the evi­
dence in the instant case were found to be sufficient 
to sustain the verdict, it was prejudicial error to per­
mit the prosecuting attorney to question the defend­
ants on other unrelated crimes, and in permitting evi­
dence to be introduced regarding such crimes.



13

III.
We now address ourselves to assignment number 

five in the petition, which is as follows:
Fifth: The court erred in affirming a death

sentence based upon the following verdicts:

“We, the jury, find the defendant, Jim X. 
Caruthers, guilty as charged in the indictment, 
and fix his punishment at death by electrocu­
tion. Ike Miller, Foreman.”  (Tr., p. 8, 3944.)

A verdict in identical words was rendered in 
3945, Clayton case (Tr., p. 8.)

An indictment for rape, includes a charge of 
carnal abuse, a charge of incest, and a charge of 
assault with intent to rape. In the case of Henson 
vs. State, 76 Ark. 267, it was held that one charged 
with rape was legally convicted of being guilty of 
carnal abuse.

Justice Battle, in rendering the opinion begin­
ning at page 268, says:

“ Could appellant be lawfully convicted of 
carnal abuse of a female under sixteen years of 
age under this indictment?”

Continuing, the learned Justice says:
“ Section 2005 of Kirby’s Digest, defines 

rape as follows: ‘Rape is the carnal knowledge 
of a female forcibly and against her will.' ”

Then he quotes Section 2008, Kirby’s Digest, 
fixing the punishment for one found guilty of carnal 
knowledge.



14

Continuing the Justice quotes Section 2413 of 
the Digest, which is as follows:

“Upon an indictment for an offense consist­
ing of different degree, the defendant may be 
found guilty of any degree not higher than that 
charged in the indictment, and may be found 
guilty of any offense included in that charged 
in the indictment.”

In the case of Green vs. State, 91 Ark. at page 
565, this Court says:

“An assault with intent to rape is included 
in the charge of rape, and a conviction may he 
had of the former under an indictment for the 
latter.”

The verdict in the instant case does not show 
with what crime the jury found the defendants 
guilty, although they were charged with two crimes.

In the case of Banks et al. vs. State, 143 Ark. 
154, 219 S. W. 1015, it was held, that where the 
defendants were charged with the crime of murder 
in the first degree, a verdict reading: “ We, the jury, 
find the defendants, John Martin and Alf Banks, Jr., 
guilty as charged in the indictment,”  was fatally 
defective, saying the verdict is “ so fatally defective 
that no judgment can he rendered upon it.”

In speaking of the case of Hembree vs. State, 
58 S. W. 350, the late C. J. Hart, speaking for the 
Court, said:

“ This case is referred to in 68 Ark. 621, as 
reversed and remanded, in the list of opinions 
not reported. The fact that the case was not



15

officially reported, and that the court reversed 
the judgment upon its own motion without the 
question, having been raised by the defendant, 
shows how thoroughly the question has been con­
sidered settled by this court.”

This case is authority for the Court to reverse 
the instant case, although the defendants have not 
raised the question of defective verdicts.

Here the defendants were charged with rape. 
This Court, in Green vs. State, 91 Ark. at page 565, 
says they were by the indictment, charged with 
assault with intent to commit rape. Now, where two 
crimes were charged in the indictment, how could a 
court render a valid judgment upon a verdict read­
ing: “We, the jury, find the defendant, Bubbles 
Clayton, guilty as charged in the indictment, and 
fix his punishment at death by electrocution. Ike 
Miller, Foreman.”

A verdict in the same words was rendered as to 
the defendant, Caruthers.

Now, by the decision of this Court in Green vs. 
State, 91 Ark. at page 565, each appellant was 
charged in separate indictments with two crimes, 
rape, and assault with intent to rape. A conviction 
as to one meant death, as to the other, a sentence to 
serve in the penitentiary for a period not to exceed 
21 years. Now, there being two crimes, rape and 
assault with intent to rape, how could any court 
render a valid judgment upon a verdict reading: 
“We, the jury, find the defendant, Bubbles Clayton, 
guilty as charged in the indictment, and fix his 
punishment at death by electrocution. Ike Miller, 
Foreman. ’ ’



16

The same applies to the defendant, Caruthers.
How could the court legally know, or legally 

infer, that the jury by its verdict meant to find the 
defendants guilty of rape. It is no answer to say the 
court instructed only as to rape. In the Banks case, 
supra, the court instructed only as to murder in the 
first degree.

We are not unmindful of the fact that in the 
Banks case, the court discussed certain statutes, 
which doubtless lent their influence to the decision, 
but the principle in this case is identical with the 
principle in the Banks case. It is our contention 
that where a statute and a principle are in harmony, 
indeed where it is plain that it was the principle that 
breathed the life into the statute, the court should 
value the principle as highly as it values the statute.

There is another matter to which we are con­
strained to call to the attention of the Court. It is 
the fact the record conclusively showTs that the ver­
dicts were by someone juggled. We have quoted the 
verdicts as recorded at page eight of the Transcripts, 
yet in the judgment the verdicts are made to read as 
follows:

“ We, the jury, find the defendant guilty  ̂ of rape 
and fix his punishment at death by electrocution. 
Ike Miller, Foreman.’ ’ A substitution of the words 
“ of rape’ ’ for the words “ as charged in the indict­
ment.’ ’ This falsifying the verdicts could not have 
happened by accident or my misprison. It is the 
child of design. Someone was trying to breathe life 
into a lifeless verdict by pumping a falsehood into 
the judgments.



17

It certainly is a challenge to the intelligence 
and integrity of any court to ask it to permit an 
electrocution upon a tainted, a false judgment.

It ought not be held too late to raise this ques­
tion anytime before “the carter carries the victim to 
the guillotine. ’ ’ v

We submit that the petition should be granted.
Lewis Rhoton,
Jno. A. Hibbleb,

Attorneys for Appellants.
Chables II. Houston,
Carol K ing,

of Counsel.









United States Circuit Court of Appeals

EIGHTH CIRCUIT

IN  T H E

Jim X. Cark others & Bubbles Clayton.. ..Appellants,

v. No. 11210—C iv^

Al Reed, K eeper of Arkansas S tate 
Penitentiary............... ..................

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..Appellee. N v

PETITION FOR REHEARING

---------------- j

J no. A. Hibbler,
J. R. Booker,
Scipio A. J ONES,

Attorneys for Appellants.

OEMOCRAT R. & L. CO., LITTLE ROM



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Page

1. ASSIGNMENT OF ERRORS ................................................................ 1

2. ARGUMENT .............................................................................................  2

AUTHORITIES AND CASES CITED

Carter v. Texas, 177 U. S. 442.......................................................................  2

Flynn v. State, 43 Ark. 290.......................................................... ...................  4

Gibson v. Mississippi, 162 U. S. 565.......................................... ..................... 2

Lytle v. Crawford, 69 App. N. Y. 273.......................................................... 4

Martin v. Texas, 200 U. S. 316....................................... ............ ...................  2

Neal v. Delaware, 103 U. S. 370.................................. - ................................. 2

Rogers v. Alabama, 192 U. S. 226.................................................................  2

Strauder v. West Virginia, 100 U. S. 303............................................... ......  2

Wilson v. State, 16 Ark. 601..................................... - .................................... 4

I N D E X

\





IN  TH E

United States Circuit Court of Appeals
EIGHTH CIRCUIT

J i m  X .  C a r r u t h e b s  &  B u b b l e s  C l a y t o n ......................... Appellants

v. No. 11210—Civil

A l  R e e d , K e e p e r  o p  A r k a n s a s  S t a t e

P e n i t e n t i a r y ......................................................................................... Appellee.

PETITION FOR REHEARING

Come the Appellants and file this their petition for re­
hearing, and for cause state:

I.
THAT THE COURT ERRED IN ITS FINDING OF LAW 

AND FACT THAT THE TRIAL IN THE MISSIS­
SIPPI COUNTY CIRCUIT COURT WAS NOT DOMI­
NATED BY MOB VIOLENCE AT THE TIME OF 
THE TRIAL OF APPELLANTS.

II.
THE COURT ERRED IN ITS FINDING OF LAW AND 

FACT THAT C O U N S E L  FOR APPELLANTS 
WAIVED THE RIGHT OF THE APPELLANTS TO 
FILE A MOTION IN THE MISSISSIPPI COUNTY 
CIRCUIT COURT TO QUASH THE PANEL OF THE 
GRAND AND PETIT JURY BECAUSE OF THE 
SYSTEMATIC AND ARBITRARY EXCLUSION OF 
NEGROES THEREFROM.

in.
THE COURT ERRED IN ITS FINDING OF LAW AND 

FACT THAT AN INSUFFICIENT SHOWING WAS



2 J i m  X. C a r b u t h e r s  &  B u b b l e s  C l a y t o n  v. A l  R e e d

MADE BY APPELLANTS TO JUSTIFY THE HOLD­
ING THAT APPELLANTS WERE PREVENTED BY 
ANY MOB SPIRIT BY EXERCISING THEIR 
RIGHTS TO FILE THE RIGHT REQUISITE OF AF­
FIDAVIT FOR CHANGE OF VENUE.
The foregoing petition for rehearing has been filed in ac­

cordance with provision of rule No. 18 of this Court. The 
opinion of the Court on which a rehearing is asked was handed 
down February 25, 1939, of the November term of 1938. We 
wish to address ourselves first to the second assignment of 
error in the petition for rehearing which reads :

“ THE COURT ERRED IN ITS FINDING OF LAW 
AND FACT THAT COUNSEL FOR APPELLANTS 
WAIVED THE RIGHT OF THE APPELLANTS TO 
FILE A MOTION IN THE MISSISSIPPI COUNTY 
CIRCUIT COURT TO QUASH THE PANEL OF THE 
GRAND AND PETIT JURY BECAUSE OF THE 
SYSTEMATIC AND ARBITRARY EXCLUSION OF 
NEGROES THEREFROM.”
Learned Judge, in his opinion as stated above, found for 

appellants on point two which will be our second assignment 
of error to this petition for rehearing in that ‘ ‘ There is sub­
stantial evidence that Negroes had been systematically and 
intentionally excluded from the panel, both petit jurors and 
grand jurors in Mississippi County over a period of years, 
although there were among the population many persons of 
the Race qualified for such service under the Arkansas stat­
utes.”

We quote further that “ it is also shown that there were 
no Negroes on the grand .jury which returned the indictment 
against these appellants, nor upon the petit jury which re­
turned the verdict against them.”  It is settled by the Su­
preme Court that whenever, by any action of a state, 
whether through its legislature, through its Courts, or 
through its executive or administrative officers, all persons of 
African race are excluded solely because of their race or color 
from serving as grand jurors in the criminal prosecution of 
a person of the African race, the equal protection of the laws 
is denied him, contrary to the 14th Amendment of the Con­
stitution of the United States. Carter v. Texas, 177 U. S. 
442, 447; Strauder v. West Virginia, 100 U. S. 303; Neal v. 
Delaware, 103 U. S. 370, 397; Gibson v. Mississippi, 162 U. S. 
565; Rogers v. Alabama, 192 U. S. 226-231; Martin v. Texas, 
200 U. S. 316, but held that Mr. Adams, the attorney who 
conducted the defense for the appellants, was fully advised



and gave careful consideration to tlie fact that Negroes had 
been excluded from the jury panel. That after he, Mr. Adams, 
had carefully considered the matter he decided not to raise 
the point and for this reason the Court held that the rights 
of appellants had been waived by their counsel.

We wish to call the Court’s attention, first—to Mr. 
Adams ’ testimony on this point, when asked if he was famil­
iar with the Scottsboro decision and the rights of Negroes to 
serve on juries, he answered “ Yes, I was familiar with that 
at the time and I say that this whole thing is focused on a 
critical attitude on that motion not being made: Now I
didn’t overlook it. I was familiar with it. In fact, whether 
my duty required it or not I don’t know, but I did say private­
ly to Judge Killough in the trial that I was not going to make 
that motion in the case. ’ ’

Mr. Adams then went on to justify himself by stating what 
he thought of the jury and his acquaintance with some of the 
members because of having formerly lived in Blytheville, but 
he never stated one time that he discussed whether or not he 
should waive the motion with appellants or whether or not it 
was made known to them their rights under the Constitution 
to have the petit and grand juries quashed, because of mem­
bers of their race having been systematically and arbitrarily 
excluded therefrom, and now as to a further question, “ Did 
you not further think, Mr. Adams, that had you done so that 
the boys would have been lynched?”  He replied, “ Well, now 
I hardly would want to go that far, I will just say this, that 
all the time we w7ere going through the routine of the trial I 
realized there were many factors in the case I had known 
nothing about when I accepted the appointment and I did feel 
it would at least arouse the prejudice in the minds of the peo­
ple generally if I made the motion.”

“ Q. And the reason might have been that the mob would 
have taken charge of the boys?

“ A. Well, that would be possible.
“ Q. Well, weren’t you governed somewhat by that?
“ A. Well, I will just say I thought it would be a very 

unwise thing to do this as a practical matter in handling that 
defense, I just thought it would be very unwise.”

The Court’s attention is respectfully called to two phases 
of Mr. Adams’ course of conduct—first, that he wholly ignored 
the appellants in his conclusion to waive their constitutional 
rights in deciding not to file the motion as hereinbefore set out,

J i m  X. C a r k u t h e r s  &  B u b b l e s  C l a y t o n  v . A l  R e e d  3



and, second, that he was laboring under duress of some kind, 
whether it was fear for his own safety or that of the appel­
lants it amounts to the same thing when he was prevented 
from acting freely and of his own will. The reason which he 
gave, first and last, for not filing the motion, was that it 
would create prejudice in the minds of the people generally, 
and as a result thereof the appellants might be lynched.

We come to this last proposition: could counsel waive a 
constitutional right for appellants without their knowledge 
and consent when he had an opportunity to consult them 
thereon?

Counsel for appellants take the position that a funda­
mental right vested in a defendant in any criminal case by 
the Constitution of either the state or the United States can­
not be waived by the attorney appearing for the defendant. 
Especially would this be true when defendant has not had the 
privilege of selection of said attorney.

The relation between an attorney and client is based upon 
the law of agency and “ while attorneys engaged in the actual 
management of a cause may bind their clients, by some admis­
sions, yet they have no authority to enter into agreements 
surrendering whatever rights the client may possess.”  (Lytle 
v. Crawford, 69, Appellant Div. N. Y., 273.)

In criminal cases, counsel cannot bind the defendant by 
admissions nor can he weaken, nor impair, the all embracing 
force of the plea of not guilty. He cannot waive any of de­
fendant’s rights. ('Wilson v. State, 16 Ark. 601)-.

A prisoner is not bound by the waiver or admission of 
his attorney at the trial unless it be distinct and formal and 
made for the purpose of binding the prisoner. (Flynn v. State, 
43 Ark. 290).

In the case at bar the record fails to show a formal waiver 
by the attorney for appellants of their constitutional rights 
to quash by motion the panel of the grand and petit juries of 
the Chickasawba District of the Mississippi County Circuit 
Court on the grounds that members of their race had arbi­
trarily and systematically been excluded from jury service 
for a number of years.

We respectfully submit that in view of the finding of this 
Court on our assignment of error number two, that there is 
substantial evidence to show that Negroes had been arbitrarily 
and systematically excluded from both the grand and petit 
juries'of the Chickasawba District of Mississippi County;for

4  J i m  X .  C a r r u t h e b s  &  B u b b l e s  C l a y t o n  v . A l  R e e d



J i m  X. C a r r u t h e b s  &  B u b b l e s  C l a y t o n  v . A l  R e e d  5

a number of years but that the constitutional rights of the ap­
pellants had been waived by attorney Adams in the instant 
case, the Court should grant appellants a new hearing as 
herein set out.

J no. A. H ibbler,
J. R. B ooker,

Scipio A. J ones,

Attorneys for Appellants.



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