Herndon v. Georgia Record and Briefs

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IN THE

(E m u i n f tljp U n itrii S ta te s
OCTOBER TERM, 1934.

No. 665.

ANGELO HERNDON, 

vs.

THE STATE OF GEORGIA.

Appellant,

MOTION FOR LEAVE TO FILE BRIEF AS AMICI 
CURIAE IN SUPPORT OF MOTION FOR RE­
HEARING AND BRIEF IN SUPPORT THEREOF.

CHARLES H. HOUSTON,
Counsel for National Association for the Advance­

ment o f Colored People and National Bar As­
sociation, as amici curiae.

George W. L awrence,
T hurgood M arshall,
James M arshall, 

of Counsel.
ARTHUR GARFIELD HAYS,
MORRIS L. ERNST,

Counsel for the American Civil Liberties Union, 
Inc., as amicus curiae.

BETHUEL M. WEBSTER, Jr.,
Counsel for the Church League for Industrial De­

mocracy, The Methodist Federation for Social 
Service, The Justice Commission of the Central 
Conference of American Rabbis, Rev. W. Rus­
sell Bowie, Rev. Allan Knight Chalmers, Rev. 
Harry Emerson Fosdick, Rev. Hubert C. Her­
ring, Dr. Stephen S. Wise, as amici curiae.

GALLO & ACKERMAN, Inc., 142 Liberty Street, Telephones— REctor 2--53S6-7





SUBJECT INDEX.

PAGE

Motion for Leave to File Brief as Amici Curiae in Sup­
port of Motion for Rehearing_____ ____ ________  1

Brief of Amici Curiae____ ________ _________________ 4
Object -------------------------- -----------------------------------  4

Preliminary Statement __________________________ 4

Argument ..... 7
Under the circumstances in this case, appel­

lant was not, under Georgia law, entitled 
to challenge the construction of the stat­
ute by the trial court after the decision 
in Carr v. State, supra, and prior to the 
original decision of the Georgia Supreme 
Court, 178 Ga. 832 (R., 141-179) ........ ...................  7

In spite of its verbal denials, the Georgia 
Supreme Court did in fact consider and 
pass upon the federal question raised by 
appellant on his motion for rehearing__

Conclusion __________ ___ _______________ __
12

13



11

CITATIONS.

Cases.

Carr v. State ....................................
City of Atlanta v. Smith------ ------
Firemen’s Insurance Co. v. Oliver

PAGES
.6, 7,10,11 
____  9

8

Great Northern R. R. Company v. Sunburst Oil & 
Ref. Co................................. ..................... ..................

Hendricks v. Strahley ......................— -------------------
Herndon v. State, 178 Ga. 832 ------------- --- ---------- —
Herndon v. State, 179 Ga. 597 ......................................
Herndon v. State, 79 L. ed. [Adv. 871] -------- ----------
Howard v. State................................................... ...........
Johnson v. Narragansett Filling Station, Inc..............
Lawrence v. Boswell ........................................................

Madison v. H ood ........ ........................................ -......... ...
Matthews v. State.............................................................
Mayor, et, al., v. Munroe...... ........................................ ...
Partee v. State
Schenck v. U. S................... .............................................
Southern Bell Telephone. & Telegraph Company v. 

Glawson ......... .......................... ..... ............................

12
, 8,10

7
11,12 
6,11

8
10
10
10
8

10
8

7

8-9

U. S. v. N ickle............................... ....................................  10
Virginia Lumber Corp. v. Atlantic Coast Line R. Corp. 10
Ward v. Love County...................................................... 13
Western & A. R. v. Morgan.................... ..... .............. .....  10

Constitutional Provisions and Statutes.

United States Constitution, Amendment X I V ............. 6,14
Georgia Penal Code, Sec. 56 .............................. 6, 7,11,12,13



IN THE

£>uprpmp (Enurt nf tljp llnttph States
OCTOBER TERM, 1934.

No. 665.

A n g e l o  H e r n d o n ,
Appellant,

vs.

T h e  S t a t e  of  G e o rg ia .

MOTION FOR LEAVE TO FILE BRIEF AS AMICI 
CURIAE IN SUPPORT OF MOTION FOR RE­
HEARING.

May it Please the Court:

The undersigned, as counsel for the National Associa­
tion for the Advancement of Colored People, a corpora­
tion, and the National Bar Association, a corporation, the 
Church League for Industrial Democracy, an unincorpo-



2

rated association, the Methodist Federation for Social 
Service, an unincorporated association, the Justice Com­
mission of the Central Conference of American Rabbis, 
an unincorporated association, and the American Civil Lib­
erties Union, Inc., a corporation, Rev. W. Russell Bowie, 
Rev. Allan Knight Chalmers, Pastor of the Broadway Tab­
ernacle, Rev. Harry Emerson Fosdick, Pastor of the River­
side Church, Rev. Hubert C. Herring, Director of the Coun­
cil for Social Action of the Congregational and Christian 
Churches of the United States of America, Dr. Stephen S. 
Wise, Rabbi of the Free Synagogue, individuals, having 
secured the consent of counsel for the appellant, and, we 
believe, the tacit consent of the Attorney General of 
Georgia*, respectfully move this Honorable Court for leave 
to file the accompanying brief in this case as amici curiae 
in support of appellant’s motion for a rehearing hereto­
fore filed.

*The consent of the Attorney General of Georgia was received 
in the following letter:

“ Mr. Charles H. Houston 
Special Counsel 
69 Fifth Avenue 
New York City

“ Your letter of recent date stating that the National Association 
for the Advancement of Colored People desires to file a brief 
amicus curiae in support of the petition for rehearing filed by 
Herndon’s counsel received.

“ I beg to advise that the Attorney General is without au­
thority in this matter. The case is now pending in the Supreme 
Court and is one solely for its direction and determination. 
This case was handled by the Department of Law just as any 
other case.”



3

The special reasons for this motion are set out in the 
accompanying brief.

CHARLES H. HOUSTON,
Counsel for National Association for the 

Advancement of Colored People and Na­
tional Bar Association, as amici curiae.

G eorge  W. L a w r e n c e ,
T h u ro o o d  M a r s h a l l ,
J a m e s  M a r s h a l l , 

of Counsel.

ARTHUR GARFIELD HAYS,
MORRIS L. ERNST,

Counsel for the American Civil Liberties 
Union, Inc. as amicus curiae.

BETHUEL M. WEBSTER, Jr.,
Counsel for the Church League for In­

dustrial Democracy. The Methodist Fed­
eration for Social Service, The Justice 
Commission of the Central Conference 
of American Rabbis, Rev. W. Russell 
Bowie, Rev. Allan Knight Chalmers, 
Rev. Harry Emerson Fosdick, Rev. Hu­
bert C. Herring, Dr. Stephen S. Wise, 
as amici curiae.



4

IN THE SUPREME COURT OF THE 
UNITED STATES.

O ct o b e r  T e r m , 1934.

No. 665.

A n g e l o  H e r n d o n ,

vs.
Appellant,

T h e  S t a t e  of  G e o r g ia .

BRIEF OF AMICI CURIAE IN SUPPORT OF MOTION 
FOR REHEARING.

I.

Object.

The object of this brief is to support as amici curiae 
the petition of appellant, Angelo Herndon, for a rehearing 
in the above-entitled cause, dismissed for want of jurisdic­
tion on May 20, 1935.

II.

Preliminary Statement.

The National Association for the Advancement of 
Colored People, a body corporate with 325 branches in



5

various sections of the United States, and the National 
Bar Association, the corporate organization of Negro law­
yers in the United States and its territorial possessions, 
are gravely affected by the judgment of this Court dis­
missing Herndon’s appeal for want of jurisdiction. The 
issue of free speech as guaranteed by the Fourteenth 
Amendment of the United States Constitution which he 
attempted to raise affects all agitation for political, eco­
nomic and social reform. The sharp limitations laid down 
by this Court herein on the right to review state decisions 
adverse to claims of constitutional rights, privileges and 
immunities present a grave danger to the security of 
Negroes as a minority group.

The Church League for Industrial Democracy is an un­
incorporated association of 1800 members of the Protestant 
Episcopal Church including 27 Bishops thereof, whose pur­
pose is to bring together for study and action those who 
seek to apply the principles of Christ in industrial society. 
The Methodist Federation for Social Service is an unin­
corporated association concerned with interesting members 
of the Methodist Church in the application of Christian 
principles to the practical problems of life. Constitutional 
protection to an individual seeking more adequate relief 
for the oppressed is a matter with which these organiza­
tions are deeply concerned.

The Justice Commission of the Central Conference of 
American Rabbis is an unincorporated association. Its 
concern with this case arises from what it conceives to be 
the deprivation of the constitutional rights of Angelo 
Herndon, a Negro, and member of a minority group, which 
deprivation might adversely affect the interests of Jews, 
another minority group.

The American Civil Liberties Union, Inc., is a corpora­
tion, the purpose of which is to secure and maintain the 
constitutional guarantees of free speech, free press, and 
free assembly for individuals and groups having all shades 
of opinion. The constitutional question involved in the in­



6

stant case and the severe limitation placed by the decision 
of this Court on the right to a review of a decision of a 
state court adverse to the constitutional right claimed are 
matters of first importance to an organization the chief con­
cern of which is the preservation of constitutional rights 
and liberties.

The individuals mentioned above are all interested in 
justice for the oppressed.

While your amici curiae believe that Angelo Herndon is 
innocent of any attempt to incite insurrection against the 
lawful authority of the State of Georgia (Georgia Penal 
Code, sec. 56*), and believe that the statute as construed 
and applied by the Supreme Court of Georgia clearly vio­
lated his rights under the Fourteenth Amendment, they 
limit this brief to the preliminary question of his right to be 
heard in this Court.

In dismissing the appeal herein this Court ruled that 
no federal question had been properly presented to the 
Court below unless upon motion in the Georgia Supreme 
Court for a rehearing; that the specific claim in that motion 
that the construction placed on sec. 56, supra, by the 
Georgia Supreme Court was repugnant to the due process 
clause of the Fourteenth Amendment came too late, because 
appellant had been “ bound to anticipate”  from the con­
struction placed on sec. 56 by the Georgia Supreme Court 
in Carr v. State, 176 Ga. 747 (1933) “ the probability of a 
similar ruling in his own case” ; that the Georgia Supreme 
Court had declined to cure the delay by considering and 
passing upon the federal question on the motion for re­
hearing; that therefore this Court was without jurisdic­
tion, but that except for the decision in the Carr case, supra, 
appellant’s “ contention that the federal question was raised 
at the earliest opportunity well might be sustained” .

* “Any attempt, by persuasion or otherwise, to induce others to 
join in any combined resistance to the lawful authority of the State 
shall constitute an attempt to incite insurrection.”



7

Your amici curiae respectfully submit that the decision 
of this Court dismissing Herndon’s appeal was wrong, and 
was based upon an erroneous interpretation of Georgia 
law and practice and the decisions of the Court below. 
They maintain:

(1) That, under the circumstances in this case, appel­
lant was not, under Georgia law, entitled to challenge the 
construction of the statute by the trial Court after the de­
cision in Carr v. State, supra, and prior to the original 
decision of the Georgia Supreme Court, 178 Ga. 832 (R., 
141-179);

(2) That in spite of its verbal denials, the Georgia Su­
preme Court did, in fact, consider and pass upon the fed­
eral question raised by appellant on his motion for re­
hearing.

III.

Argument.

Under the circumstances in this case, appellant was not, 
under Georgia law, entitled to challenge the construction 
of the statute by the trial Court after the decision in Carr 
v. State, supra, and prior to the original decision of the 
Georgia Supreme Court, 178 Ga. 832 (R., 141-179).

The opinion of the majority of this Court tacitly admits 
there was no federal question on the construction of sec. 
56, supra, by the trial Court in its charge to the jury (R., 
126-137) January 18, 1933. The charge was in full accord 
with the decisions of this Court, notably Schenck v. United 
States, 249 U. S. 47 (1919), and even went a step beyond 
in adopting the essence of the prayer requested by appel­
lant (R., 138) that in order to convict “ it must appear 
clearly by the evidence that immediate serious violence 
against the State of Georgia was to be expected or ivas 
advocated”  (R., 133, the italicized portion is the exact lan­
guage of part of appellant’s prayer # 4 ; R., 138).



8

No exception was taken, none could have been taken, by- 
appellant to this portion of the charge (Howard v. State, 
115 Ga. 244, 252 [1902]; Partee v. State, 19 Ga. App. 752 
[1917])—and the construction of the statute so made was 
apparently acceptable to the State which, so far as appears, 
submitted no request to the trial Court to adopt a different 
construction in its charge. The charge of the trial Court 
thereupon became the “ law of the case” .

Until the Georgia Supreme Court decided to affirm the 
conviction of appellant, Georgia had carried the dqctrine 
of the ‘ ‘ law of the case ’ ’ to extreme lengths.

“ The judgment (of the trial court overruling a gen­
eral demurrer to the petition) not being excepted to, 
became the law of the case, binding alike on the trial 
court and on the reviewing court, at all subsequent 
stages of the same case.”  Hendricks v. Strahley, 40 
Ga. App. 119 (1929).

“ The correctness of that decision, right or wrong, 
can not be drawn into question in the present case, 
which is a continuation of the same litigation between 
the same parties.”  Firemen’s Insurance Company v. 
Oliver, 176 Ga. 80, 82 (1932).

“ This is the rule which has been applied to plead­
ings in civil cases, and the reason on which it rests 
is equally applicable in criminal procedure.”  Mat­
thews v. State, 125 Ga. 248, 249 (1906).

In two civil cases closely analogous in this aspect to the 
instant case, the Georgia Supreme Court insisted upon ad­
herence to the “ law of the case”  rule, and decided that no 
notice could be taken of an intervening inconsistent decision 
in another case between different parties. In Southern Bell 
Telephone <& Telegraph Company v. Glawson, 140 Ga. 507 
(1913), the Georgia Court of Appeals had reversed the de­
cision of the trial Court dismissing a petition on general 
demurrer for failure to state a cause of action. Subse­
quently in another case the Georgia Supreme Court made



9

a ruling, the effect of which was to show that the decision 
of the Court of Appeals reversing the trial Court in the 
principal case had been erroneous. Thereafter the prin­
cipal case came back before the Court of Appeals, and that 
Court certified to the Georgia Supreme Court the question 
whether on the second writ of error it was bound by its 
former decision or whether it should follow and apply the 
contrary decision of the Supreme Court. The Georgia 
Supreme Court answered the question as follows:

“ The former decision of the Court of Appeals has 
settled the law of the case to the extent to which the 
decision went; and it should be followed in this case, 
though in others the subsequent decision of the Su­
preme Court should be followed”  (pp. 510-511, italics 
ours).

In City of Atlanta v. Smith, 165 Ga. 146 (1927), the 
Supreme Court of Georgia refused to reconsider a ruling 
made by it on a previous writ of error in that case in 
order to conform to a subsequent ruling of the United 
States Supreme Court involving the same question of law 
but between different parties. The Court said:

“ The principle in the decision may be reviewed and 
overruled in another case between different parties, 
but as between the parties the decision stands as the 
law of the case”  (p. 146).

While it is true that in the Southern Bell Telephone <& 
Telegraph Company case and in the City of Atlanta case, 
the “ law of the case”  was established by the decision of 
an appellate court, and that the “ law of the case”  in the 
instant case on the construction of Section 56, supra, was 
established by the charge of the trial court, nevertheless 
the legal consequences are the same. A  ruling of the 
lower court not excepted to, becomes the “ law of the case”  
with an effect just as conclusive as if it had been made by 
the Supreme Court of the State.



1 0

Lawrence v. Boswell, 155 Ga. 690 (1923);
Mayor, et al., v. Monroe, 22 Ga. App. 190 (1918);
Hendricks v. Strahley, supra;
Western <& A. R. v. Morgan, 40 Ga. App. 611 

(1929);
Virginia Lumber Corp. v. Atlantic Coast Line R. 

Corp., 46 Ga. App. 534 (1933).

As to other jurisdictions, see

United States v. Nickle, 70 F. (2d) 873 (C. C. A. 
8th Circ., 1934);

Madison v. Hood, 207 Iowa 495 (1929);
Johnson v. Narragansett Filling Station, Inc., 148 

A. 901 (R. I., 1930).

In the face of the foregoing authorities the general state­
ment on which this Court based its decision that “ appel­
lant cannot plead ignorance of the ruling in the Carr case, 
and was therefore bound to anticipate the probability of a 
similar ruling in his own case, and preserve his right to a 
review here by appropriate action upon the original hear­
ing in the court below” , is contrary to the settled law and 
practice of the State. The statement quoted is not sup­
ported by the citation of any Georgia decision; and every 
Georgia precedent which your amici curiae have been able 
to find after diligent search recognizes the binding quality 
of the “ law of the case” . No decision in Georgia can be 
regarded as giving the appellant warning that in his case, 
despite Carr v. State, supra, the “ law of the case” , as estab­
lished by the charge of the trial court would be departed 
from. Tlius we see no basis under Georgia law for the 
requirement of this Court that appellant should have an­
ticipated a decision in his case which would follow the Carr 
case, and repudiate the construction of the statute which 
was the law of his case. As is forcefully stated in the dis­
senting opinion in the instant case: “ He might wait until



31

the law of the case had been rejected by the reviewing 
court before insisting that the effect would be an invasion 
of his constitutional immunities”  (79 L. ed. [Adv. 871, 
877]).

The opinion of the Georgia Supreme Court on appel­
lant’s motion for a rehearing does not suggest that the 
Federal questions could have been raised after the deci­
sion in the Carr case. In that opinion the Court below 
declared that it would not consider the constitutional ques­
tion raised by appellant’s motion for rehearing, not be­
cause the question had not been raised on the original hear­
ing before it, but because it had not been raised in the trial 
Court:

“ * * * it is a mere attempt to draw into question 
the constitutionality of the statute under which the 
defendant was convicted, where no such question was 
raised and passed upon in the trial court. * * * ‘ This 
court will never pass upon the constitutionality of an 
act of the General Assembly unless it clearly appears 
in the record that the point was directly and properly 
made in the court below and distinctly passed upon 
by the trial judge.’ ”  Herndon v. State, 179 Ga. 597, 
600-601 (R., 196).

In short, if appellant had attempted on the original hear­
ing of the case before the Georgia Supreme Court to chal­
lenge the construction of sec. 56, supra, adopted by the 
trial Court in his case, upon the basis of the construction 
adopted in the Carr case, decided two months after his 
trial in the Superior Court of Fulton County, the Georgia 
Supreme Court would not have listened to him (a) because 
the instructions of the trial Court had become the “ law of 
the case”  and binding on all parties thereto, and (b) be­
cause he had not made the point before the trial judge and 
specially assigned error on the trial judge’s ruling. This 
Court dismisses appellant’s appeal for want of jurisdic­



1 2

tion and condemns him to a living death of eighteen to 
twenty years on the Georgia chain gang, on a supposition 
as to his rights under Georgia law which appears to be 
contrary to all the established rules of law and practice in 
the State of Georgia.

It is respectfully submitted that appellant was not 
“ bound to anticipate the probability”  of a decision in his 
case, based upon a construction of the statute radically 
different than that adopted by the trial Court (and one 
which rendered it invalid); and that when the Georgia Su­
preme Court unexpectedly imported the new construction 
of sec. 56 into the case he was taken by surprise, and 
that his first opportunity to challenge the constitutionality 
of the new construction was on his motion for rehearing, 
supra. The case then properly falls within the doctrine 
repeatedly announced by this Court that the federal claim 
is timely where the ruling of the state court infringes fed­
eral rights for the first time and a petition or motion for 
rehearing presented the first opportunity for raising the 
federal claim.

Great Northern R. Co. v. Sunburst, Oil & Ref. Co., 
287 U. S. 358, 367 (1932).

IV.

In spite of its verbal denials, the Georgia Supreme Court 
did in fact consider and pass upon the Federal question 
raised by appellant on his motion for rehearing.

The Supreme Court of Georgia in its opinion on the 
motion for rehearing expressly disclaimed any intention 
to consider the federal question raised, and denied that 
it passed upon the same. 179 Ga., supra, at 600-601 (R., 
197). Yet it is impossible to read the opinion with an 
eye to substance and regard what actually happened, and 
avoid the conclusion that the Georgia Supreme Court con­
sidered and intended to deny Federal rights first infringed



13

by its construction of sec. 56, supra, in its original decision. 
Why did it feel called upon to explain its original decision, 
and to so limit its original opinion that the opinion looked 
and was entirely different after the exegesis! The consti­
tutional questions raised in the petition for rehearing are 
set forth at length in the opinion on rehearing; it decided 
explicitly that “ all contentions made in the motion for 
rehearing should necessarily fail, based, as they are, upon 
an erroneous construction of our decision. * * * There is 
no merit in the motion for rehearing.”  (R., 196, 198).

The United States Supreme Court is not bound by the 
verbal disclaimer of the Georgia Supreme Court on the 
motion for rehearing, but in recognition of appellant’s 
right to his day in court should look behind the words to 
the substance of the State Court’s action.

Ward v. Love County, 253 U. S. 17, 22 (1920).
The question whether appellant’s constitutional rights were 
infringed by his conviction and sentence to eighteen to 
twenty years on the chain gang should not be decided upon 
the empty pattern of mere words.

This Court recognized that it would be sufficient to confer 
jurisdiction, even though the federal question were first 
raised on motion for rehearing, if the State Court actually 
considered the motion and passed upon the claims therein 
made. It is respectfully submitted that looking at the 
real action of the State Court in the premises, the appel­
lant is entitled to be heard here on this additional ground.

CONCLUSION.

It is not the purpose of this brief to duplicate the con­
vincing arguments set forth in the learned brief of appel­
lant in support of his motion for rehearing. Your amici 
curiae adopt the same as their own, and urge them upon 
the Court.

For the reasons therein set forth and for the reasons 
presented in this brief, your amici curiae respectfully sub­



14

mit to this Court that petitioner has conclusively demon­
strated that he seasonably and properly presented and 
saved his federal question in the State Court, and that 
he is entitled to be heard on his claim that “ the statute 
as construed by the court below, and as applied to appel­
lant, violates the due process clause of the Fourteenth 
Amendment, and the questions presented are within the 
jurisdiction of this Court,”  and that his petition for re­
hearing should be granted.

Respectfully submitted,

CHARLES H. HOUSTON,
Counsel for National Association for the 

Advancement of Colored People and Na­
tional Bar Association, as amici curiae.

G eorge  W .  L a w r e n c e ,
T h u r g o o d  M a r s h a l l ,
J a m e s  M a r s h a l l , 

of Counsel.

ARTHUR GARFIELD HAYS,
MORRIS L. ERNST,

Counsel for the American Civil Liberties 
Union, Inc. as amicus curiae.

BETHUEL M . WEBSTER, J r.,
Counsel for the Church League for In­

dustrial Democracy, The Methodist Fed­
eration for Social Service, The Justice 
Commission of the Central Conference 
of American Rabbis, Rev. W. Russell 
Bowie, Rev. Allan Knight Chalmers, 
Rev. Harry Emerson Fosdick, Rev. Hu­
bert C. Herring, Dr. Stephen S. Wise, 
as amici curiae.



TRANSCRIPT OF RECORD.

SUPREME COURT OF THE UNITED STATES
CTOBER TERM, 1922.

N o .  1 9 9

FRANK MOORE, ED. HICKS, J. E. KNOX, ET AL., 
APPELLANTS,

VS.

E. H. DEMPSEY, KEEPER OF THE ARKANSAS STATE
PENITENTIARY.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR 
THE EASTERN DISTRICT OF ARKANSAS.

FILED OCTOBER 24, 1921.

( 2 8 ,5 5 0 )





E. H. DEMPSEY, KEEPER OF THE ARKANSAS STATE

APPEAL FBOM THE DISTRICT COURT OF THE UNITED STATES FOR

( 2 8 ,5 5 0 )
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1921.

N o .  5 9 5

FRANK MOORE, ED. HICKS, J. E. KNOX, ET AL„ 
APPELLANTS,

VS.

H. DEMPSEY, KEEPER OF THE ARKANSAS STA 
PENITENTIARY.

THE EASTERN DISTRICT OF ARKANSAS.

INDEX.
Page.

Petition for writ of habeas corpus---------------------------------------------------------- 3
Exhibit A—E. M. Allen’s statement to press---------------------------------  15

B—Affidavit of Walter Ward______________________________ 19
Affidavit of George Green____________________________  21

C—Affidavit of John Jefferson____________________________  23
D— Record to Supreme Court U. S. on petition for certiorari

In No. 955, of October term, 1919__________________
Caption _______________________________________________  25
Allowance of appeal___________________________________  27
Record from circuit court of Phillips County__________  27

Caption ___________________________________________ 27
Opening order of the court_______________________  27
Organization of the grand jury----------------------------  28
C. N. Biscoe, special baliff------------------------------------- 28
Organization of petit jury------------------------------------- 28
Order as to T. W. Keese_________________________  29
Order as to J. L. Turner----------------------------------------  29
Order of court____________________________________  29
Report of grand jury---------------------------------------------  29
Indictment ------------------------------------------------------------ 30



ii INDEX. Page.
Bill of exceptions filed____________________________  31
Bill of exceptions_________________________________ 32

Testimony of R. L. Brooks____________________ 32
Dr. O. Parker___________________ 34
Tom Faulkner__________________ 35
John Jefferson__________________ 36
Walter Ward___________________ 46
Dave Archer____________________ 53
J. Graham Burke______________  57

Oral instructions of the court________________  60
Verdict ______________________________________  64
Motion for new trial overruled_______________  65
Judge’s certificate____________________________  65

Order of court_____________________    65
Judgment ______________________ :__________________ 66
Order of court and sentence_______________________  67
Motion for new trial______________________________ 67
Affidavit of A lf Banks, Jr________________________ 71
Affidavit of William Wordlow_____________________  73
Order overruling motion for new trial_______ ____  74
Clerk’s certificate_______________________________   75

Order submitting case_________________________________  75
Judgment _____________________________________________ 76
Opinion _______________________________________________  76
Order of submission on petition for rehearing________  80
Petition for rehearing__________________________ ,______ 80
Order overruling petition for rehearing_______________  83
Motion to stay issuance of mandate___________________  83
Order overruling motion to stay mandate_____________  83
Certificate of clerk of supreme court___________________  83

Exhibit E—Letter of committee of seven to governor of Arkansas. 84
F—Opinion, Jackson, J_____________________________________ 84
G— Governor’s proclamation setting date of execution_____ 89
H—Resolution of R. L. Kitchen Post No. 41 of American

Legion ______________________________________________ 91
I—Resolution of Helena Rotary Club_____________________  92
J—Resolution of Lions Club of Helena____________________  93
K— Opinion, McCulloch, J_____________________   94

Affidavit of T. K. Jones______________________________ 103
Affidavit of H. F. Smeddy___________________________  108

Order granting writ of habeas corpus__________________________________  119
Demurrer to petition for writ of habeas corpus____________ ___________  120
Order dismissing writ of habeas corpus________________________________  121
Order allowing appeal----------------------------------------------------------------------------  121
Assignment of errors___________________________________________________  122
Petition for appeal---------------------------------------------------------------------------------  122
Bond on appeal---------------------------------------------------------------------------------------  123
Certificate of probable cause____________________________________________ 124
Citation and service____________________________________________________  125
Clerk’s certificate________________________________________________________ 125
Stipulation that cases be consolidated and heard on record in case No. 

595 ------- ------------ ------------------------------------- --------------------------------------- 126



FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC. 3

In the District Court of the United States for the Western 
Division of the Eastern District of Arkansas.

Be it remembered, That on the 21st day of September, 
A. D. 1921, came into the office of the Clerk of the District 
Court of the United States for the Western Division of the 
Eastern District of Arkansas, Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman and Paul Hall, by Murphy, McHaney & 
Dunaway, and Scipio A. Jones, Esqs., their attorneys, and 
filed therein their Petition for Writ of Habeas Corpus, against 
E. H. Dempsev, Keeper of the State Penitentiary of the State 
of Arkansas, which Petition for Writ of Habeas Corpus is as 
follows:

In the United States District Court for the Western Division 
of the Eastern District of Arkansas.

F r a n k  M o o re , E d . H ic k s , J . E . K n o x , E d. C o l e m a n  and P a u l
H a l l , Petitioners,

vs.

E. H. D e m p s e y , Keeper of the Arkansas Penitentiary, Defend­
ant.

Petition for a Writ of Habeas Corpus.

Your petitioners, Frank Moore, Ed. Hicks, J. E. Knox, 
Ed. Coleman and Paul Hall, state that they are citizens and 
residents of the State of Arkansas, and are now residing in 
Little Rock, confined in the Arkansas State Penitentiary, in 
the Western Division of the Eastern District of Arkansas, 
within the jurisdiction of this court; that the defendant is the 
keeper of the said Arkansas State Penitentiary, and as such 
is unlawfully restraining your petitioners of their liberty, and 
will, unless prevented from doing so by the issuance of the 
write herein prayed for, deprive them of their lives on the 
23rd day of Sept., 1921, in violation of the Constitution and 
laws of "the United States, and Constitution and laws of the 
State of Arkansas.

Petitioners further say that they are Negroes, of African 
descent, black in color, and that prior to the times hereinafter 
mentioned were citizens and residents of Phillips County, 
Arkansas, at Elaine; that on the —  day of October, 1919, they 
were arrested, placed in the Phillips County jail and there­



after until their trial were kept in close confinement upon an 
alleged charge of murder in the first degree for the killing of 
one Clinton Lee, a white man, said to have occurred on the 
1st day of October, 1919; that said Clinton Lee was killed, as 
they are informed, while a member of a posse of white men 
who were said to be attempting to quell a race riot, growing 
out of the killing of W. A. Adkins on the night of September 
30th, 1919, at Hoop Spur, in said County and State; that said 
Adkins was killed, as they are advised, under these circum­
stances and conditions; Petitioners and a large number of the 
members of their race were peaceably and lawfully assembled 
in tfieir church house at or near Hoop Spur, with no unlawful 
purpose in view, and with no desire or purpose to injure or do 
any wrong to any one; that while they were thus assembled, 
white persons began firing guns or pistols from the outside 
into and through said church house, through the windows and 
shooting the lights out therein, causing a great disturbance 
and stampede of those assembled therein; that the white per­
sons so firing on said church come there in automobiles, of 
which there were several, and come for the purpose of break­
ing up said meeting; that said Adkins was killed either by 
members of his own party or by some other person unknown 
to your petitioners; that the white men sent out the word to 
Helena, the County seat, that said Adkins had been killed by 
the Negroes, shot down in cold blood while on a peaceable mis­
sion, by an armed force of Negroes, assembled at said church, 
which caused great excitement all over the City of Helena and 
Phillips County; that the report of said killing spread like 
wild fire into other counties, all over the State of Arkansas, 
and into other States, notably the Slate of Mississippi; that 
early the next day a large number of white men of said county 
armed themselves and rushed to the scene of the trouble and 
to adjacent regions, the vicinity of Elaine being one of them, 
and began the indiscriminate hunting down, shooting and 
killing of negroes; that in a short time white men from adjoin­
ing counties and from the State of Mississippi likewise armed 
themselves, rushed to the scene of the trouble and began the 
indiscriminate shooting down of Negroes, both men and 
women, particularly the posse from the State of Mississippi, 
who shot down in cold blood innocent Negro men and women, 
many of whom were at the time in the fields picking cotton; 
that highly inflammatory articles were published in the press 
of Arkansas and especially of Helena and throughout the 
United States, in which the trouble was variously called a 
“ race riot,”  “ an^ uprising of the Negroes”  and “ A deliber­
ately planned insurrection among the Negroes against the

4 FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC.



whites”  of that part of Phillips County; that the officers of 
Phillips County, especially the Sheriff, called upon the Gov­
ernor of the State, and the Governor in turn called upon the 
Commanding Officer at Camp Pike for a large number of 
United States soldiers to assist the citizens in quelling the so 
called “ race riot,”  “ uprising”  or “ insurrection” ; that a 
company of soldiers was dispatched to the scene of the trouble 
who took charge of the situation and finally succeeded in 
stopping the slaughter.

Your petitioners further say that they, together with a 
large number of their race, both men and women, were taken 
to the Phillips County jail, at Helena, incarcerated therein, 
and charged with murder; that a committee of seven com­
posed of leading Helena business men and officials, to-wit: 
Sebastian Straub, Chairman, H. D. Moore, County Judge, F. F. 
Kitchens, Sheriff, J. G. Knight, Mayor, E. M. Allen, J. E. 
Horner and T. W. Keesee, was selected for the purpose of 
probing into the situation and picking out those to be con­
demned to death and those to be condemned and sentenced to 
the penitentiary; that said Committee assumed charge of the 
matter and proceeded to have brought before them a large 
number of those incarcerated in jail and examined them re­
garding their own connection and the connection of others 
charged with participation in said trouble; that if evidence 
unsatisfactory to said Committee was not given they would be 
sent out and certain of their keepers would take them to a 
room in the jail which was immediately adjoining, and a part 
of the Courthouse building where said Committee was sitting, 
and torture them by beating and whipping them with leather 
straps with metal in them, cutting the blood at every lick 
until the victim would agree to testify to anything their tor­
turers demanded of them; that there was also provided in 
said jail, to further frighten and torture them, an electric 
chair, in which they would be put naked and the current 
turned on to shock and frighten them into giving damaging 
statements against themselves and others; also strangling 
drugs were put up their noses for the same purpose and by 
these methods and means false evidence was extorted from 
Negroes to be used and was used against your petitioners.

Petitioners further say that on every day from October 
1st, until after their trial on November 3rd, 1919, the press of 
Helena and the State of Arkansas carried inflam-atory articles 
giving accounts of the trouble, which were calculated to 
arouse and did arouse bitter feeling against your petitioners 
and the other members of their race; that on October 7th, 
1919, the Helena World, a newspaper published and printed

FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC. 5



in the City of Helena, and having a wide and almost universal 
circulation throughout said County, published an article 
written and given out by Mr. E. M. Allen, a member of said 
Committee of Seven, for and on behalf of said Committee, 
purporting to give the facts concerning what he called “ not 
a race riot,”  but a “ deliberately planned insurrection of the 
Negroes against the Whites,”  in which it was stated that the 
Union of which petitioners were members, was “ established 
for the purpose of banding Negroes together for the killing of 
white people” ; that a copy of said said article is attached 
hereto, made a part hereof and marked Exhibit “ A ” ; that 
shortly1 after being placed in Jail, a mob was formed in the 
city of Helena, composed of hundreds of men, who marched to 
the County jail for the purpose and with the intent of lynch­
ing your petitioners and others, and would have done so but 
for the interference of United States soldiers and the promise 
of some of said Committee and other leading officials that if 
the mob would stay its hand they would execute those found 
guilty in the form of law.

Petitioners further state that prior to October 1, 1919, 
they were farmers, share croppers; that nearly all of the land 
in ,Phillips County is owned by white men; that same is 
rented out to share croppers to be tilled on shares, one half to 
the tenant and the other half to the owner; that for some 
years past there has grown up a system among the land 
owners of furnishing the Negro tenants supplies on which to 
make crops and which is calculated to deprive and does de­
prive the Negro tenants of all their interest in the crops 
produced by them; that in pursuance of this system, they re­
fused to give their share croppers any itemized statement of 
account of their indebtedness for supplies so furnished, re­
fused to let them move or sell any part of their crops, but 
themselves sell and dispose of the same at such prices as they 
please, and then give to the Negroes no account thereof, pay 
them only such amount as they wish and in this way kept 
them down, poverty stricken and effectually under their con­
trol ; that for the purpose of protecting themselves, if possible 
against the oppressive and ruinous effects of this system, the 
Negro farmers organized societies, with the view of uniting 
their financial resources in moral and legal measures to over­
come the same, which fact became quickly known to th planta­
tion owners; that such owners were bitterly opposed to such 
societies, sought to prevent their organization, ordered the 
members to discontinue their meetings and sought by every 
means they could employ to disrupt them; that on the 30th 
day of September, 1919, petitioners and other members of the

6  FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC.



Ratio Lodge, near Elaine, learned that some of the Negro 
farmers of a nearby plantation had employed LT. S. Bratton, 
an attorney of Little Rock, Arkansas, to represent them in 
effecting a settlement for them with their landlords, or if he 
could not so institute legal proceedings to protect their inter­
ests, and that either he, or his representaives, would be there 
on the following day to meet with all the parties concerned, 
perfect the arrangements, and learn all the facts as far as 
possible, and decided to hold a meeting with the view of see­
ing him while there, and engaging him as an attorney to pro­
tect their interest; that accordingly they met that night at 
Hoop Spur Church house, which resulted, as hereinbefore set 
out, in the killing of said Adkins and the breaking up of said 
meeting; that on the morning of October 1st, Mr. 0. S. Brat­
ton, son and agent of Attorney U. S. Bratton, arrived in 
Elaine for consultation with those who might desire to em­
ploy his father, was arrested, barely escaped being mobbed, 
notwithstanding it was well known he was there only for the 
purpose of advising with those Negroes as to their rights, 
and getting from them such facts as would enable his father 
intelligently to prepare for their legal rights; that he was 
carried thence to the County jail, thrown into it and kept 
closely confined on a charge of murder until the 31st day of 
the same month, when he was indicted on a charge of barratry, 
without any evidence to sustain the charge; that on that day, 
he was told by officials that he would be discharged, but not 
to go on the public streets anywhere, to keep the matter a 
secret, to leave secretly in a closed automobile and to go to 
West Helena, four miles away, and there take the train, so as 
to avoid being mobbed; that he was told that he would be 
mobbed, or would be in great danger of being mobbed if his 
release became known publicly before he was out of reach; 
that the Judge of the Circuit Court, the Judge of the same 
court before whom petitioners were tried, facilitated the secret 
departure and himself went to West Helena and there re­
mained until he had seen said Bratton safely on the train 
and the train departed.

Petitioners further say that the Circuit Court of Phillips 
County convened on October 27th, 1919; that a grand jury 
was organized composed wholly of white men, one of whom 
T. W. Keesee, was a member of the said Committee of Seven, 
and many of whom were in the posses organized to fight the 
Negroes; that during its session, petitioners and many others 
of the prisioners were frequently carried before it in an effort 
to extract from them false incriminating admissions and to 
testify against each other, and that both before and after,

FKANK MOOEE ET AL. VS. E. H , DEM PSEY, ETC. 7



they were frequently whipped, beaten and tortured; that those 
in charge of them had some Avay of learning when the evi­
dence was unsatisfactory to the grand jury, and this was 
always followed by beating and whipping; that by these 
methods, some of the Negro prisoners were forced to testify 
against others, two against your petitioners, though no one 
could truthfully testify against them; that on October 29th, 
1919, a joint indictment was returned against petitioners ac­
cusing them of the murder of said Clinton Lee, a man peti­
tioners did not know, and had never, to their knowledge even 
seen; that thereafter on the 3rd day of November, 1919, peti­
tioners were taken into the court room before the judge, told 
of the charge, and were informed that a certain lawyer was 
appointed to defend them; that they were given no opportun­
ity to employ an attorney of their own choice; that the ap­
pointed attorney did not consult with them, took no steps to 
prepare for their defense, asked nothing about their witnesses, 
though there were many who knew that petitioners had noth­
ing to do with the killing of said Lee; that they were imme­
diately placed on joint trial before an exclusively white jury 
and the trial closed so far as the evidence was concerned with 
the State’s witnesses alone; that after the court’s instructions, 
the jury retired just long enough to write a verdict of guilty 
of murder in the first degree, as charged, and returned with 
it into court—not being out exceeding two or three minutes, 
and they were promptly sentenced to death by electrocution 
for December 27th, 1919.

Petitioners further say that during the course of said 
trial, which lasted less than an hour, that only two witnesses 
testified to anything to connect them in any way with the killing 
of said Clinton Lee; that said witnesses were Walter Ward 
and John Jefferson, both of whom were Negroes and were 
under indictment at the same time for the killing of said Lee; 
that they were compelled to testify against them by the same 
methods and means hereinbefore described; that their testi­
mony was wholly false and that they gave such testimony 
through fear of torture and were further told that if they 
refused to testify that they would be killed, but that if they 
did testify, and would plead guilty their punishment would be 
light; that they thereafter plead guilty to murder in the 
second degree and were sentenced to terms of imprisonment; 
that they attach hereto the affidavits of each of said witnesses 
showing the falsity of their testimony and the means of its 
acquisition, make them a part hereof and mark them Exhibit 
“ B ”  and “ C ”  respectively; that they also attach hereto a

8  FR A N K  MOORE EX AL. VS. E. H . DEM PSEY, ETC.



certified transcript of the proceedings in the Phillips Circuit 
Court as Exhibit “ D .”

Petitioners further say that large crowds of white people 
bent on petitioners’ condemnation and death thronged the 
courthouse and grounds and streets of Helena all during the 
trial of petitioners and the other negro defendants; that on 
account of the great publicity given theirs and the other cases, 
on account of their being charged with connection with an 
insurrection against the white people, and that four or five 
white men were killed, on account of the fact that they are 
Negroes, and those who run the court, the Judge upon the 
bench, the Sheriff, the Clerk and all the jurors being white 
men, on account of the fact that it was stated and widely 
published that the purpose of the negroes was to kill the' 
whites and take their property, and on account of all the race 
prejudice which normally exists and which was enhanced a 
thousand fold at the time, by bitterness beyond expression, 
was impossible for them to get a fair and impartial trial in 
said court before a jury of white men; that the attorney ap­
pointed to defend them knew that the prejueice against them 
was such that they could not get a fair and impartial trial 
before a white jury of said county, yet he filed no petition for 
a change of venue, did not ask the court for time to prepare 
a defense, and did nothing to protect their interests; that the 
court did not ask them whether they had counsel, or desired 
to employ counsel, or were able to do so; but simply said a 
lawyer, whom he named, would defend them; that they have, 
therefore, not had a trial, have had no opportunity to make a 
defense, but that their case was closed against them as virtu­
ally and effectually as if on a plea of guilty; that if they had 
been given the opportunity they would have employed counsel 
of their own choice and have made a defense, their ability 
to do so having been demonstrated since their conviction; 
that the feeling against petitioners was such that it over­
awed the Judge on the bench, the jury, the attorney appointed 
to defend them and every one connected with said’ court; that 
all, Judge, jury and counsel were dominated by the mob spirit 
that was universally present in court and out, so that if any 
juror had had the courage to investigate said charge with any 
spirit of fairness, and vote for an acqu-ttal he, himself, would 
have been the victim of the mob; that such was the intensity 
of feeling against petitioners and the other defendant that 
had counsel for them objected to the testimony of the two wit­
nesses against them, said Ward and Jefferson, on the ground 
that it was extorted by beating and torture, as they are ad­
vised he should have done, he himself would have’ been the

FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC. 9



10 PRAN K MOORE ET AL. VS. E. H . DEM PSEY, ETC.

victim of the mob; that it is possible counsel did not know 
how the evidence against them was obtained, and they do not 
desire to appear to criticize him, yet he knew that if the evi­
dence against them was acquired as before stated, it was 
imcompetent and should have been excluded, a fact which 
petitioners did not know; that petitioners were ignorant of 
their rights, had never been in court before, and had counsel 
asked them about this testimony they would have told him 
how it was obtained; that through fear of the mob spirit no 
witness was called in their behalf and they themselves were 
advised not to take the stand on their own behalf; that as a 
result of the mob domination of court, counsel and jury, the 
court, although a court of original jurisdiction in felony cases, 
lost its jurisdiction by virtue of such mob domination and the 
result was but an empty ceremony, carried through in the 
apparent form of law, and that the verdict of the jury was 
really a mob verdict, dictated by the spirit of the mob and 
pronounced and returned because no other verdict would have 
been tolerated, and that the judgment against them is, there­
fore a nullity.

Petitioners further say that the entire trial, verdict and 
judgment against them was but an empty ceremony; that their 
real trial and condemnation had already taken place before 
said Committee of Seven; that said Committee, in advance of 
the sitting of the court, had sat in judgment upon them and 
all the other cases and had assumed and exercised the juris­
diction of the court by determining the guilt or innocence of 
those in jail, had acquired the evidence in the manner herein 
set out, and decided which of the defendants should be elec­
trocuted and which sent to prison and the terms to be given 
them, and which to discharge; that when court convened, the 
program laid out by said Committee was carried through and 
the verdict against petitioners were pronounced and returned, 
not as the independent verdict of an unbiased jury, but as a 
part of the prearranged scheme and judgment of said Com­
mittee; that in doing this the court did not exercise the juris­
diction given it by law and wholly lost its jurisdiction by sub­
stituting for its judgment the judgment of condemnation of 
said Committee; that there is atached hereto as Exhibit “ E ”  
a letter from said Committee to the then Governor of the 
State showing the truth of said charges.

Petitioners further say that, ever since the law of Ark­
ansas for the selection of jury commissioners, the grand and 
petit jurors, as it now stands, was enacted, all of the judges 
of the courts have been and are now white men, and that 
ever since then said judges have appointed, without exception,



white commissioners to select the jurors, both grand and petit, 
and that such commissioners have uniformally selected only 
white men on such juries, that all of this has been done in 
discrimination against the negro race, on account of their 
color; that such has been the unbroken practice in Phillips 
County for more than thirty years, notwithstanding the negro 
population in said county exceeds the white population by 
more than five to one and that a large proportion of them are 
electors and possess the1 legal, moral and intellectual qualifi­
cations required or necessary for such jurors; that the exclu­
sion of said negroes from the juries was, at all times, inten­
tional and because of their color, of their being negroes; that 
such was the case of the grand jury by which petitioners were 
indicted, and of the petit jury that pronounced them guilty; 
that under the law of Arkansas, as construed by the Supreme 
Court of the State, an objection to an indictment on the 
ground that it was found by a grand jury composed only of 
white men to the exclusion of negroes on account of their 
color, must be made at the impanneling of the grand jury 
and objection to the petit jury must be made before a plea is 
entered to the indictment; that at the time said indictment was 
found petitioners were confined in jail and did not know the 
grand jury had been organized, did not know it was in session, 
did not know they were to be indicted for the killing of said 
Lee or any other person and did not know they were charged 
therewith; that it was impossible for them to make any ob­
jection to the organization of said grand jury for the very 
simple reason that they were closely confined, had no attor­
ney, and no opportunity to employ an attorney; that at their 
trial counsel appointed to defend them made no objection to 
the petit jury or to any previous proceeding; that their fail­
ure to do so was through fear of the mob for petitioners and 
himself, as they believe.

Petitioners further say that after their conviction and 
sentence to death, their friends employed other counsel to 
represent them; that through such counsel they filed a motion 
for a new trial, copied in the record attached hereto as Ex­
hibit “ D ,”  which was promptly overruled and an appeal was 
taken to the Supreme Court of Arkansas, the highest court in 
said State, where, on the 29th day of March, 1920, the judg­
ment of the Phillips Circuit Court was affirmed, a copy of the 
opinion of said court being attached hereto as Exhibit “ F ”  
(Ed. Hicks vs. State, 143 Ark. 158): that thereafter they
applied to the Supreme Court of the United States for a Writ 
of Certiorari to the Supreme Court of Arkansas, praying that 
said court be required to send up the record and proceeding

ERANK MOORE ET AL. VS. E. H . DEM PSEY, ETC. U



in said cause for review by the Supreme Court of the United 
States, but that on the 11th day of October, 1920, the applica­
tion for said writ was denied; that the Governor of the State 
of Arkansas did on th e ------day of Aug. 1921, issue a procla­
mation carrying into effect the judgment and sentence of the 
Phillips Circuit Court against petitioners and in which he 
fixed Sept. 23, 1921, as the date of their execution, a copy of 
which proclamation is hereto attached as Exhibit “ G.”

Petitioners further say that on the 19th day of October, 
1920, the Richard L. Kitchens Post of the American Legion of 
Helena, Arkansas, an organization composed of approximately 
three hundred white ex-service men living in. every part of 
Phillips County, passed a resolution calling on the Governor 
of the State of Arkansas, for the execution by death of peti­
tioners and the seven other Negroes condemned to death by 

• said Circuit Court at the same time and under the same cir­
cumstances as petitioners, and protesting against the commu­
tation of the death sentence of any of said Negroes, which 
said Resolution was presented to the Governor of Arkansas, 
and a copy of same is attached hereto as Exhibit “ H ;”  that 
at a meeting of the Rotarry Club of Helena, Arkansas, at­
tended by seventy-five members, representing as many lead­
ing industrial and commercial enterprises of said city, and of 
the Lions Club of said city, attended by sixty-five members, 
representing as many of the same kind of enterprises of said 
city, each adopted a resolution approving the action of the 
Richard L. Kitchens Post of the American Legion in the prem­
ises, which said resolutions were presented to the then Gover­
nor of the State of Arkansas and copies of each are hereto 
attached as Exhibits “ I ”  and “ J ”  respectively; that said res­
olutions further and conclusively show the existence of the 
mob spirit prevalent among all the white people of, Phillips 
County at the time petitioners and the other defendants were 
put through the form of trials and show that the only reason 
the mob stayed its hand, the only reason they were not lynched 
was that the leading citizens of the community made a solemn 
promise to the mob that they should be executed in the form 
of law.

Petitioners further say that to further show the over­
whelming existence of the mob spirit and mob domination of 
their and other trials of negro defendants at the October term, 
1919, of the Phillips Circuit Court, there were six defendants 
convicted of murder in the first degree, to wit: John Martin, 
Alf Banks, Will Wordlow, Albert Giles, Joe Fox and Ed Ware’ 
whose cases were also appealed to the Supreme Court of 
Arkansas, which were reversed on account of bad verdicts,

1 2  FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC.



due to the extreme haste in securing convictions and execu­
tions (Banks vs. State, 143 Ark. 154), and remanded for a new 
trial; that upon a re-trial of said cases, defendants were again 
convicted and appealed to the Supreme Court, and their cases 
were again reversed (Ware vs. State, Vol. 4 Sup. Court Rep. 
No. 11, page 674), and remanded for a new trial on December 
6th, 1920; that said cases were coming on for trial at the May 
term of the Phillips Circuit Court, which convened on May 
2nd, 1921, and it was represented to the Governor of the 
State of Arkansas, by the white citizens and officials of Phil­
lips County that, unless a date of execution was set for peti­
tioners there was grave danger of mob violence to the other 
six defendants whose cases would be called for trial at the 
May term of said Court and that in all probability they would 
be lynched; that in order to appease the mob spirit still preva­
lent in Phillips County and in a measure to secure the safety 
of the six negroes whose cases were to be called for trial 
and were called on May 9th, 1921, the Governor issued a proc­
lamation fixing a date of execution of Petitioners for June 
10th, 1921, which was stayed by Court proceedings; that these 
facts conclusively show that the mob spirit, mob domination, 
is still universally present in Phillips County.

Petitioners further say that on the 8th day of June, 1921, 
they filed a petition in the Pulaski Chancery Court for a 
Writ of Habeas Corpus setting out the matters and things 
as herein stated, and that on said date the Pulaski Chancery 
Court issued its writ of Habeas Corpus, directed to the de­
fendant, E. H. Dempsey, keeper of the Arkansas State Peni­
tentiary, commanding him to have the bodies of the petitioners 
in Court at 2 o ’clock P. M. on the 10th day of June, 1921, and 
then and there state in writing the terms and cause of their 
imprisonment; that on the 9th day of June, 1921, the Attor­
ney General for the State of Arkansas filed with the Supreme 
Court of Arkansas a Petition for Writ of Prohibition against 
J. E. Martineau, Chancellor of the Pulaski Chancery Court, 
and your petitioners, and that on the 20th day of June, 1921, 
the Supreme Court of the State of Arkansas issued its Writ 
of Prohibition against the Judge of the Pulaski Chancery 
Court, prohibiting him from hearing the Petitions for Habeas 
Corpus pending in his court and quashed the Writ of Habeas 
Corpus theretofore issued; that a copy of the Opinion of the 
Supreme Court in issuing said Writ of Prohibition is attached 
hereto, made a part hereof and marked “ Exhibit K ,)) that 
thereafter, to-wit: on the 4th day of August, 1921, your pe­
titioners made application to the Hon. Oliver Wendell Holmes, 
Associate Justice of the Supreme Court of the United States,

FRANK MOORE ET AL. VS. E. H . DEM PSEY, ETC. 13



14 FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC.

for a Writ of Error, to the Supreme Court of the State of 
Arkansas in the matter of said Writ of Prohibition, but same 
was denied.

Petitioners, therefore, say that by the proceedings afore­
said, they were deprived of their rights and are about to be 
deprived of their lives in violation of Section 1, of the 14th 
Amendment of the Constitution of the United States and the 
laws of the United States enacted in pursuance thereto, in that 
they have been denied the equal protection of the law, and 
have been convicted, condemned, and are about to be deprived 
of their lives without due process of law; that they are now 
in the custody of the defendant, E. H. Dempsey, Keeper of 
the) Arkansas State Penitentiary, to be electrocuted on the 
23rd day of September, 1921; that they are now detained and 
held in custody by said Keeper and will be electrocuted on 
said date unless prevented from so doing by the issuance of 
a writ of Habeas Corpus.

Petitioners therefore pray that a Writ of Habeas Corpus 
be issued to the end that they may be discharged from said 
unlawful imprisonment and unlawful judgment and sentence 
to death.

(Signed) PRANK MOORE,
his

l L

< 6

i t

Witness to mark 
(Signed) J.

ED x HICKS, 
mark

J. E. KNOX, 
his

ED x COLEMAN, 
mark 

his
PAUL x HALL, 

mark
Petitioners.

R. BOOKER,

(Signed) S. A. JONES,
MURPHY, McHANEY & DUNAWAY,

Attorneys for Petitioners.

Frank Moore, Ed Hicks, J. E. Knox, Ed Coleman and 
Paul Hall on their oaths say that the matters and things set 
out and contained in the foregoing petition for Writ of Habeas 
Corpus are true to the best of their knowledge and belief.



Subscribed and sworn to before me, this 21st day of 
September, 1921.

[ seal .] (Signed) J. R. BOOKER,
Notary Public.

My Commission expires Jan. 31, 1923.

Endorsed: Filed Sept. 21, 1921. Sid B. Redding, Clerk. 

E x h ib it  “ A . ”

Inward Facts About Negro Insurrection.

President E. M. Allen, of Business Men’s League, Issues
Statement to Press.

Hill’s Influence.

Winchester Negro Adroitly Misled Trustful Negroes and 
Robbed Them of Cash, Liberty Bonds, and Savings 
Stamps—His Activities.

The Committee of Seven.

The Committee of Seven, chosen to direct operations in 
putting down the insurrection and to conduct investigations 
with the view to discovering and punishing the guilty, is com­
posed of the following citizens:

Sebastian Etraub, Chairman.
H. D. Moore, County Judge.
F. F. Kitchens, Sheriff.
J. C. Knight, Mayor.
E. M. Allen.
E. C. Horner.
T. W. Keese.

All persons, white or black, in possession of information 
which might assist in discovering and running down those re­
sponsible for the insurrection are urgently requested to confer 
with the Committee as a whole or with some individual mem­
ber thereof, it being understood that such action will be for 
the public safety and that the informant’s identity will be 
carefully safeguarded.

It is the Duty of Every Citizen in Possession of Such In­
formation to Present it to the Committee.

FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC. 1 5



The following statement was given to the press here late 
yesterday afternoon by the President E. M. Allen of the Busi­
ness Men’s League and the Committee of Seven, but for some 
reason not explained editors of various papers to which the 
statement was sent saw fit to substitute a different “ lead,”  
in most cases failing completely to identify Mr. Allen.

Now the “ ignorance and superstitution of a race of child­
ren”  was played upon for momentary gain and for the band­
ing together of Negroes to slay whites, was authoritatively re­
vealed in a statement issued here yesterday by E. M. Allen, a 
member of the Committee of Seven, who has heard virtually 
all the prisoners’ confessions following last weeks’ uprising 
in this section of Arkansas.

The Committee of Seven is composed of leading Helena 
Business men. It has been authorized to carry on the investi­
gation both by the municipal and county authorities and by 
Governor Charles H. Brough of Arkansas. It is co-operating 
with the military authorities. Among its members is Sheriff 
F. F. Kitchens.

Mr. Allen is considered by leading officials and citizens 
of Helena as being most competent to speak on the subject 
because of his prominent part in the investigations which have 
taken place. He has been a resident of Helena for thirteen 
years and was one of the men who originally plotted and 
created Elaine, center of the recent disorders.

Aside from being locally prominent as president of the 
Helena Business Men’s League, and as the owner of consider­
able property, Mr. Allen is Presidnet of the National Associa­
tion of Insurance Agents, the headquarters of which are in 
New York City. His name was on the list of those the negroes 
plotted to kill yesterday as the signal for a general slaughter 
of the whites, according to papers confiscated and confessions 
of leaders captured.

Mr. Allen’s statement folknvs:

“ The present trouble with the negroes in Phillips County 
is not a race riot, it is a deliberately planned insurrection of 
the negroes against the white-, directed by an organization 
known as the “ Progressive Farmers’ and'Household Union 
of America,”  established for the purpose of banding negroes 
together for the killing of white people. This “ union”  was 
started by Robert L. Hill, a negro 26 years old, of Winchester, 
Arkansas, who saw in it an opportunity of making easy money. 
He had been a farmer all his life, but lately had been posing

16 FR A N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC.



FRAN K MOORE ET AL. VS. E. H . DEM PSEY, ETC. 1 7

as a “ private detective doing work in this and all foreign 
countries. ”

“ He started his first ‘ union’ work in April of this year. 
He organized the Ratio Lodge in May of this year. He chose 
Ratio because his mother happened to be living there. He 
told the darkies that he was an agent of the government and 
because the senators and representatives at Washington were 
white men and in sympathy with the white men of the south, 
it was impossible for the negroes to get the rights that had 
been promised them for service in the army, and so the gov­
ernment had called into existence this organization which 
would be supported by the government in defense of the ne­
groes against the white people. He told them it was ncessary 
for all members of the Union to arm themselves in prepara­
tion for the day when they should be called upon to attack 
their white oppressors.

“ The slogan of the organization is “ We battle for our 
rights.’ ’ The password of all the lodges was “ We have just 
began. ’ ’

“ He told them that those members who were unable to 
buy munitions would be supplied by the union from the gov­
ernment storehouse at Winchester.

‘ ‘ The purely mercenary side of all develops as follows: 
Negro men were charged $1.50 entrance fees and Negro 
women 50 cents. At the second and third meeting he would 
bring Dr. V. E. Powell of Winchester with him, who purported 
to be the examining physician for the government in its work 
of registering the negroes in defense of their rights. A certi­
ficate was filled out and signe----- Negro upon payment of
fifty cents. This certificate was supposed to be the registra­
tion document. Those negroes who were possessed of funds 
in amounts from $5.00 to $25.00 were enrolled in an advanced 
section of the union and upon payment of whatever sum he 
(Hill) could procure in excess of $5.00, a certificate was given, 
entitling the holder to attend the congresses of the ‘ union’ at 
Winchester and speak on the floor of the meeting, regarding 
any questions brought up, and to assist in keeping the Consti­
tution of the United States from being questioned.

“ Another form of extortion was to sell shares of $10.00 
each to the negroes in a proposed building to be erected by 
the ‘ union’ at Winchester. Hill would find out what negroes 
possessed thrift stamps and Liberty Bonds and would issue 
a certificate stating that so many shares had been purchased 
at $10.00 per share, and all negroes buying shares in the 
amount of fifty dollars or more were told that their names 
would be engraved in the building. In other words, he had so



1 8 PRAN K MOORE ET AL. VS. E. H . DEM PSEY, ETC.

planned his campaign that any negro possessing from fifty 
cents to fifty dollars was given an opportunity to invest in 
something connected with the ‘ union.’

“ He then advised the members that the general attorney 
of the ‘ union’ in Little Rock would for an additional consider­
ation represent all the negroes in their settlements with the 
landlords during the ginning season. He went to several of the 
meetings with typewritten powers of attorney which he had 
signed by the negroes, collecting amounts from twenty-five 
dollars to fifty dollars each with the crop as security. He was 
very adroit in making use of certain circulars issued by the 
government and in distorting the purpose of the Arkansas 
Warehouse and Ginners’ Law to convince the Negroes that 
the United States government was endeavoring to correct 
evils which he alleged existed among the farmers.

“ He further told the negroes that the plan for Secfrtary 
Lane to provide homesteads for the soldiers had been carried 
out where the white soldiers were concerned, but the negroes 
had been refused participation in it. We found where Negro 
soldiers at Elaine had sold their discharge papers for sums 
ranging from fifty to one hundred dollars on the theory that 
such discharges entitled the holder to forty acres of govern­
ment land. He produced maps of state lands in Elaine 
country (1,600) acres which he said could be bought for $200. 
This amount was raised at one meeting and paid to him in 
cash. The land was all described and certain negroes had 
designated which parts of the various farms (all in cultiva­
tion), they desired, to take over for themselves after the 
white people had been driven off.

“ He urged all lodges to decide upon a plan of campaign 
when the day came to strike and designate the part to be 
played by every man. He told them that the government was 
erecting at Winchester three huge storehouses where arms, 
ammunition and trained soldiers would be ready for instant 
use. On Wednesday morning after the first fight at Hoop 
Spur the negroes crossed the track, and lay in the weeds all day 
waiting for H ill’s army to materialize. They were within 
easy range of automobiles going to and from Hoop Spur all 
day and could easily have fired into them but they wished to 
wait for H ill’s army in order to clean up in one fell swoop.

“ The fight at Hoop Spur was unpremeditated as far as 
the negroes were concerned as they were organizing their 
forces Wednesday morning to attack and capture Elaine but 
when runners informed the leaders that white men were enter­
ing the woods at Hoop Spur they decided to go up and wipe 
out the little gang that was reported to be there, before enter­



ing upon the more serious task of capturing Elaine. They 
underestimated the size of the force from Helena and the 
battle resulted.

“ Every negro who joined these lodges was given to kill 
white people. Unquestionably the time for attack had been 
set but plans had not been entirely perfected and the shooting 
of the officers brought on the insurrection ahead of schedule.

“ Another scheme used by Hill to obtain money was to 
appoint was to appoint leading negroes, or several of them, in 
each lodge as private and foreign detectives’—furnishing them 
large niekelplated stars and a pair of nickel-plated handcuffs, 
for which they paid him $50.00 each.

“ His meeting at Winchester in August was attended and 
addressed by white men. He simply played upon the ignor­
ance and superstition of a race of children—most of whom 
neither read nor write.

I have cross-examined and talked to at least one hundred 
prisoners at Elaine. They belong to different lodges in that 
section. The stories they tell are almost identical as to the 
promises and representations made by Hill. He even told 
them probably some of the negroes would be called upon to 
die before ‘ Equal rights’ would be assured, but they must 
look upon themselves as crusaders and die if necessary to 
secure the freedom of the other members of their race.

“ A remarkable thing about the developments is that some 
of the ringleaders were found to be the oldest and most re­
liable of the negroes whom we have known for the past fifteen 
years. He had made them believe that he had been intrusted 
with a sacred mission which had to be carried out regardless 
of the consequences.

“ All lodge meetings were required to maintain an armed 
outer guard of six sentinels. H ill’s usual expression was, 
“ Get your racks filled for the day to come.”

“ As far as oppression is concerned, many of the negroes 
involved own mules, horses, cattle and automobiles and clear 
money every year on their crops, after expenses are paid.”

Endorsed: Filed Sept. 21, 1921. Sid. B. Redding, Clerk.

E xhibit “ B ” .

A ffidavit of Walter Ward.
State of A rkansas,

County of Lincoln:

Walter Ward being first duly sworn, deposes and says:

FRA N K  MOORE ET AL. VS. .E. H . DEM PSEY, ETC. 19



My name is Walter Ward. I am 36 years of age, am 
married and have a wife living at Elaine, Arkansas. Prior to 
this trouble at Elaine I lived on Dr. Cruse’s place. I am now 
confined in the State Penitentiary on the State Farm, at 
Cummins, Arkansas, on a plea of guilty for murder in the 
second degree for the killing of Clinton Lee, for which I was 
not guilty. I was arrested on Friday after the trouble 
started, kept at Elaine until Monday when I was taken to jail 
at Helena. A short time after I had been in jail they told me 
that I had to testify against Frank Moore, Frank Hicks and 
these other men. I told them I didn’t know anything against 
these other men. They told me that I did and that I had to tell it. 
I refused to tell a lie on these men and they sent me back to 
jail, later they took me out in another—where they stripped 
me and whipped me with a rubber strap that had lead or 
copper placed in it that cut me. Every lick he would hit me 
would cut the blood out. I do not know how many licks I 
was hit, but I do know that they nearly killed me. I was also 
put in an electric chair, stripped naked and the current turned 
on to shock and frighten me. They also put up my nose some 
kind of strangling drugs to further torture and frighten me. 
So the third time they took me out I agreed to testify to any­
thing they wanted me to say. They had it all written out 
what they said others had testified to and told me that I knew 
it and that I had to tell it. So in order to save further punish­
ment I agreed to testify and did testify as I was reported in 
the record in the case against Frank Moore and others. What 
I said in that case was absolutely untrue. I testified that they 
had guns at their meeting when I joined it, which was untrue. 
If anybody had guns I didn’t see them. I testified that Paul 
Hall came to my house and woke me up and that I was to go 
over to Frank Moore’s house, that I went by and got Ed. 
Hicks, that I got a gun after I got over there from Frank 
Moore, a 32 Smith & Wesson; that Frank Moore lined us up 
two deep and marched us away; that all of the negroes had 
guns; that we went on across the field and up to where there 
was some white folks at the house and some of us went across 
the railroad and that Frank Hicks made two shots in the dirt 
road, shot up toward Dr. Richardson’s house, the McCoy 
house, north, all of which was absolutely false.

I now state the truth to be that I was not at Frank 
Moore’s house and that we didn’t gang up there, a great 
crowd of us, and that we didn’t march away, and that we didn’t 
all have guns, and that Frank Hicks didn’t fire any shots 
up the road to my knowledge and that I know nothing about 
any of the mattters as to which I testified. I testified as I did

2 0  FRA N K  MOORE ET A_L. VS. E. H . DEM PSEY, ETC.



FRANK MOORE ET AL. VS. E. H . UEM PSEY, ETC. 2 1

only because I was beaten and tortured and compelled to do 
so. Nobody knows except the men who tortured me, and 
myself and the others there in jail with me how badly I was 
treated. A great many other- suffered a like fate. They 
would take the men out and whip them, we could hear the 
licks and when the men would come back they would be 
bleeding all over. I was also indicted for the killing of Clin­
ton Lee, and was told that if I did not plead guilty I would 
be sent to the electric chair, and in order to save myself fur­
ther torture, and to save my life I plead guilty to murder in 
the second degree, and was sentenced to 21 years in the peni­
tentiary. I was not guilty. I did not fire a single shot in all 
the trouble that occurred down there. All I knew was that 
the negroes were trynig to keep out of the way of the white 
people, as we had been told the white folks were going to kill 
all the negroes. I still have the scars on me now where they 
beat me to prove that I am telling the truth about being 
whipped.

(Signed) WALTER WARD.
Subscribed and sworn to before me this 18 day of May,

State of A rkansas,
County of Lincoln:

George Green being first duly sworn, deposes and says: 
My name is George Green. I am now 22 years of age, 

and am confined in the State Penitentiary on a convict farm 
at Cummins, Arkansas. I am the same George Green who 
testified for the State in the case of the State of Arkansas vs. 
Frank Hicks, who was tried on November 3, 1919, in the 
Phillips Circuit Court, on a charge of murder in the first 
degree for having killed Clinton Lee. On that trial I testified 
that Frank Hicks was at the lodge meeting on Thursday night 
before this trouble came up on the following Tuesday and had 
his gun there. I also testified that everybody I saw had guns 
there. I further more testified that on Wednesday I took my 
shot gun and went over to Frank Moore’s house a little before 
day light and that there were about thirty people there sitting

1921.
[ s e a l .]  (Signed) J.

My com. exp. April 25, 1925.

J. H. ALBRIGHT,
Notary Public.

Exhibit “ B ”  (2nd Page). 

Affidavit of George Green.



2 2 FRA N K  MOORE ET AL. VS. E. H . DEM PSEY, ETC.

around, all of them had guns, and that about 10 or 11 o ’clock 
there were about seventy-five there and we all left including 
the defendant, Frank Hicks, and marched away with Frank 
Moore in command to go over towards the place where we 
heard shooting; and that when we crossed the railroad and 
had gotten in the public road Frank Hicks fired two shots, 
and that when he went to shoot the second time I threw up 
my hands, and says, “ Boys don’t shoot;”  that he shot straight 
up the road towards McCoy’s house, which was north; that 
he shot in the direction of some automobiles, and that after 
that I went home.

I now state and swear positive, that the testimony was 
false from beginning to end, and that I testified as I did be­
cause I was compelled to do so. I furthermore state that I 
was not at Hoop Spur on the night the trouble started, and 
that the first I knew about it was the next day when I heard 
that the white folks were down in that country to kill out all 
us negroes, and that I did nothing except to keep out of the 
way. I was arrested on Saturday after the trouble started on 
Tuesday, was taken to Helena, placed in jail and kept in close 
confinement until court met. Shortly after I was taken to 
Helena I was taken out of jail and into a room where three 
men examined me. I do not know who these men were, but 
they told me I had to testify against Frank Hicks. They 
would ask me questions, and I told them I didn’t know any­
thing about the matter and they would curse me, abuse me, 
telling me I did know, that I had to tell it, and that if I 
didn’ they would kill me. I was not whipped, but a great 
many of the negroes there in jail with me were whipped. 
They would take a man out of the jail and into an adjoining 
room and we could hear the licks as they whipped him, and 
when they would bring the man back blood would be running 
from him. A great many men were taken out and whipped 
and would be brought back in such a condition that they were 
unable to walk. They would be dragged back to the cell door 
and dumped into the cell and left for the other prisoners to 
take care of them. Knowing how these negroes had been 
treated and knowing that if I did not do what they told me 
to do that I would be punished as they were, and in order to 
avoid such punishment I finally agreed to testify to anything 
that they wanted me to say. So they told me what I had to 
say just as I testified to it in the trial, and when I was called 
as a witness I did what they told me to do. At the same time 
I was indicted for the murder of Clinton Lee, and they told me 
that if I would testify against Frank Hicks and then plead 
guilty, that they would get the court to make it light on me.



FRAN K MOORE ET AL. VS. E. H . DEM PSEY, ETC. 2 3

I later plead guilty to murder in the second degree and was 
sentenced to six years in the penitentiary. What I testified to 
against Frank Hicks was untrue. He did not fire the shots 
that killed Clinton Lee or anybody else at any time that I 
was with him. I was not guilty of having anything to do with 
the killing of Clinton Lee or anybody else, and I only testified 
as I did because I was compelled to.

(Signed) GEORGE GREEN.
Subscribed and sworn to before me this 18 day of May, 

1921.
[ seal .] (Signed) J. H. ALBRIGHT,

Notary Public.

My Commission Expires April 25, 1925.

E ndorsedF iled  Sept. 21, 1921. Sid B. Redding, Clerk.

E xhibit “ C.”

Affidavit of John Jefferson.

State of A rkansas,
County of Lincoln:

John Jefferson being first duly sworn, deposes and says:
My name is John Jefferson. I am 30 years of age, and 

am now confined in the State Penitentiary, on the State Farm 
at Cummins, Arkansas, on a sentence to a plea of guilty for 
murder in the second degree for the killing of Clinton Lee. I 
first refused to plead guilty, because I was not guilty. I had 
nothing to do with the killing of Clinton Lee, and know 
nothing about who killed him. I was taken back to jail and 
told that if I didn’t plead guilty that I would be sent to the 
electric chair, so they took me back to court again and I 
plead guilty and they gave me five years. I plead guilty to 
save my own life. I had lived at Elaine three years prior to 
this trouble there. I joined the union on Friday night before 
the trouble on Tuesday night. This was the only meeting I 
ever attended. I saw no guns at that meeting and I had no 
gun myself. I was arrested on Friday following out in the 
field picking cotton. They took me to Elaine and kept me 
there until Monday when they took me to Helena and put me 
in jail with a large number of other negroes. While I was 
in jail they took a great many negroes out of the jail and 
whipped them. I could hear the licks and when they came



24 FRAN K MOORE ET AJL. VS. E. H . DEM PSEY, ETC.

back bleeding and unable to walk and all whipped to pieces, 
some of them were so badly beaten up that they had to crawl 
for several days, being unable to walk, and they would also 
punish them by putting strangling drugs to their noses to 
punish them. I heard they had an electric chair in jail but 
didn’t see it. They took me out of jail three times and talked 
to me about myr testimony, told me that I had to testify 
against Frank Hicks and Frank Moore and these other men. 
and that if I didn’t testify against them they would do me 
like they did the others, beat me up. On the other trial I 
testified against Frank Hicks, and also Frank Moore, Ed. 
Hicks, J. E. Knox, Ed. Coleman and Paul Hall. In those 
cases I testified that I saw Frank Hicks fire two shots up the 
road toward some white gentlemen, about a quarter of a mile 
away, and that Frank Hicks said that he would a got that 
guy if it hadn’t been for that horse. I didn’t see Frank 
Hicks fire any shots at all and I didn’t hear him make any 
such remarks. The only reason that I testified the way I did 
in those cases was that I was afraid that I would be beaten 
up if I did not do so. Before I agreed to testify as I did they 
took me out of jail and into a room and talked to me three 
times before my testimony. They told me that I had to say 
it, and that if I didn’t do it they would beat me up as they 
did the others and send me to the electric chair in my own 
case.

Subscribed and sworn to before me this — day of Mav, 
1921.

Notary Public.
My Commission Expires---------- , ------ .
(Copy.)
Endorsed: Filed Sept. 21, 1921. Sid. B. Bedding, Clerk.



TRANSCRIPT OF RECORD.

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1919.

N o .  9 5 5 .

FRANK MOORE, ED. HICKS, J. E. KNOX, ED. COLEMAN, 
AND PAUL HALL, PETITIONERS,

vs.

THE STATE OF ARKANSAS.

ON PETITION FOB A WRIT OF CERTIORARI TO THE SUPREME 
COURT OF THE STATE OF ARKANSAS.

FILED MAY 24, 1920.

( 2 7 , 7 1 0 )



I



SUPREME COURT OF THE UNITEO STATES

FRANK MOORE, ED. HICKS, J. E. KNOX, ED. COLEMAN, 
AND PAUL HALL, PETITIONERS,

( 2 7 , 7 1 0 )

SUPREME COURT OF THE UNITEO STATES
OCTOBER TERM, 1919.

N o .  9 5 5 .

JANK MOORE, ED. HICKS, J. E. KNOX, ED. COLEMA 
AND PAUL HALL, PETITIONERS,

vs.

THE STATE OF ARKANSAS.

ON PETITION FOE A WRIT OF CERTIORARI TO THE SUPREME 
COURT OF THE STATE OF ARKANSAS.

INDEX.

Original. Print.
Caption ---------------------      1 25
Allowance of appeal____________________________________________ 2 27
Record from circuit court of Phillips County___________________ 3 27

Caption -----------------------------------------------------------------------------  3 27
Opening order of the court________________________________ 4 27
Organization of the grand jury____________________________  4  28
C. N. Biscoe, special bailiff________________________________ 4  28
Organization of petit jury_________________________________  5 28
Order as to T. W. Keese___________________________________  6 29
Order as to J. L. Turner__________________________________  6 29
Order of court_____________________________________________ 7 29 •
Report of grand jury______________________________________  7 29
Indictment ________________________________________________  8 30
Bill of exceptions filed____________________________________  10 31
Bill of exceptions___________________________________________ 11 32



Original. Print.
Testimony of B. L. Brooks-----------------------------------------  12 32

Dr. O. Parker_________________________  15 34
Tom Faulkner__________________________  17 35
John Jefferson__________________________  20 36
Walter Ward-----------------------------------------  35 40
Dave Archer____________________________  45 53
J. Graham Burke_______________________  51 57

Oral Instructions of the court--------------------------------------  56 60
Verdict ________________________________________________ 64
Motion for new trial overruled------------------------------------  63 65
Judge’s certificate--------------------------------------------------------  64 65

Order of court_____________________________________________ 65 65
Judgment _________________________________________________  66
Order of court and sentence----------------------------------------------  66 67
Motion for new trial---------------------------------------------------------- 67 67
Affidavit of A lf Banks, Jr------------------------------------------------- 73 71
Affidavit of William Wordlow--------------------------------------------- 75 73
Order overruling motion for new trial-------------------------------- 77 74
Clerk’s certificate___________________________________________  78 75

Order submitting case----------------------------------------------------------------  79 75
Judgment _____________________________________________________  36 6̂
Opinion _______________________________________________________  31 6̂
Order of submission on petition for rehearing----------------------------  88 80
Petition for rehearing-----------------------------------------------------*--------- 39 80
Order overruling petition for rehearing-----------------------------------  93 83
Motion to stay issuance of mandate-----------------------------------------  94 83
Order overruling motion to stay mandate---------------------------------  94 83
Certificate of clerk of supreme court------- -------------------------------  95 83



FRA N K  MOORE ET AL VS. TH E STATE OF ARKANSAS.

1 F rank Moore, Ed. H icks, J. E. K nox, Ed. Coleman, and 
Paul H all, Petitioners,

v.

The State of A rkansas, Respondent.

Exhibit A.

2 Transcript examined and appeal granted Jan. 9th, 1920.

CARROLL D. WOOD,
Associate J. Sup. Ct.

3 Pleas Before the Hon. J. M. Jackson, Judge of the First
Judicial Circuit of the State of Arkansas, Phillips 
County, Arkansas, October Term, 1919, November 3rd,
1919.

4495.

State of A rkansas, 

against

Frank Moore, Ed. H icks, J. E. K nox, Ed. Coleman and Paul
H all.

Murder in the First Degree.

Appearances:

Jno. E. Miller, Prosecuting Attorney, 1st Dist.
John I. Moore and Greenfield Quarles, Attorneys for 

defendants.

4 State of Arkansas,
County of Phillips:

Be it remembered that the Circuit Court of Phillips 
County, Arkansas, met at the Court House in the City of 
Helena, Arkansas, October 27th, 1919, at 10 o ’clock A. M., it 
being the day fixed by law for holding said court. There was 
present and presiding the Hon. J. M. Jackson, Judge of said 
Court, A. G. Burke, Clerk and F. F. Kitchens, when after due



2 8 FRAN K MOORE ET AL VS. TH E  STATE OF ARKANSAS.

proclamation by the Sheriff, Court was opened when the fol­
lowing proceedings were had to-wit:

In the Matter of the Organization of the Grand Jury.

Now on this day comes the Sheriff in open court and 
returns the venire heretofore issued by the Clerk of this 
Court for the Grand Jurors, which were selected by the Jury 
Commissioners at the April Term, 1919, of this Court, from 
which venire the following qualified electors of Phillips 
County, Arkansas, were duly examined, selected and sworn as 
follows, to-wit:—C. L. Moore, Jr., T. W. Keesee, C. L. Bernard, 
J. J. Pedro, J. W. Denison, James H. Pillow, C. A. Wooten, 
Joseph Truemper, H. E. McRae, S. A. Wooten, B. A. Dunlap, 
S. Straub, Abe Pupkin, E. P. Govan, Jr., and Jas. C. Rem- 
bert, and Si. Frank and who having been duly sworn, were 
empanneled to serve as Grand Jurors at the present term of 
this court.

Thereupon the Court charged said Grand Jury as to their 
duties and appointed H. E. McRae, one of their number as 
Foreman; They then retired to consider of their duties.

In the Matter of C. N. Biscoe Sworn in as Special Bailiff to
Grand Jury.

Now on this day comes the sheriff in open court and pre­
sents the name of C. N. Biscoe, a duly qualified elector of 

Phillips County, Arkansas, who having been found to 
5 possess the necessary qualifications, was duly sworn as 

the law directs as special bailiff to the Grand Jury. He 
then proceeded to the discharge of his duties.

In the Matter of the Organization of the Petit Jury.

Now on this day comes the sheriff in open court and re­
turns the venire heretofore issued by the Clerk of this Court 
for Petit Jurors who were selected at the April Term 1919 of 
this Court by the Jury Commissioners, from which venire 
the following qualified electors of Phillips County, Arkansas, 
were selected as sworn as follows, to -w it-J oh n  L. Turner,
D. J. Clatworthy, A. D. Adams, Andrew Friberg, E. M. Allen,
E. P. Moore, Harry Ball, E. R. Crum, J. Beilenson, John King, 
S. L. Mundt, and S. H. Swenson fo f the 1st panel, and Chas. 
Afflick, I. A. Metx, Tom Wallace, J. C. Brown, C. T. O ’Brien, 
John Shepard, A. P. Collidge, Polk Agee, R. G. Foster, M. 
Neely, W. H. Elsesser and E. P. Bloom for the 2nd panel, who



having been duly examined, were duly sworn and empaneled 
to serve as Petit Jurors at the present term of this Court.

The court then charged said Petit Jury as to their duties 
Circuit Court Record “ U ”  page 62, October 27th, 1919.

6 In the Matter of T. W. Keese Excuse- from Grand Jury.

Now on this day  ̂by leave of the court for good cause 
shown, T. W. Keese is excused from further service on the 
Grand Jury.

FBA N K  MOORE ET AL. VS. TH E STATE OF ARKANSAS. 2 9

In the Matter of John L. Turner Excused from Further 
Service on the Petit Jury.

Now on this day by leave of the Court for good cause 
shown John L. Turner, is excused from further services on 
the Petit Jury.

In the Matter of John L. Turner Empanneled as a Grand 
Juror.

Now on this day comes the sheriff in open court and pre • 
sents the name of John L. Turner, Esq., a duly qualified 
elector of Phillips County, Arkansas, who having been found 
to possess the necessary qualifications was duly examined 
sworn, and empaneled as Grand Juror at the present term of 
this Court.

Circuit Court Record “ U ” , pages 65 and 66, Oct. 28, 1919.

7 Court met pursuant to adjournment Wednesday
morning at nine o ’clock A. M. Oct. 29th, 1919. There 

was present and presiding the Hon. J. M. Jackson, Judge of 
said Court, A. G. Burke, Clerk and F. F. Kitchens, Sheriff, 
when after due proclamation by the Sheriff, Court was opened 
when the following proceedings were had to-wit—

In the Matter of the Report of the Grand Jury.

Now on this day comes the Grand Jury in open court in 
a body, all answering to their names as the same were called 
by the Clerk, through their foreman, presented twenty-three 
(23) bills of indictment, each endorsed a “ True Bill”  and 
signed by the Foreman; said indictments were each filed and 
numbered as follows to-wit:

(Among which were)



30 FRA N K  MOORE ET AL. VS. TH E STATE OF ARKANSAS.

No. 4495.

State of A rkansas,

vs.

Frank Moore, Ed. H icks, ,T. E. K nox, Ed. Coleman and Paul
H all.

Murder in the First Degree.

No Bail.

(And Others.)

There being no further business to report said Grand 
Jury retired to further consider of their duties.

Circuit Court record “ U,”  page 68, October 29, 1919.

8 Indictment.

Phillips Circuit Court.

State of A rkansas,

against

F rank Moore, Ed. H icks, J. E. K nox, Ed. Coleman and Paul
H all.

Indictment.

The Grand Jury of Phillips County in the name and by 
the authority of the State of Arkansas, accuse Frank Moore, 
Ed. Hicks, J. E. Knox, Ed. Coleman and Paul Hall, of the 
crime of murder in the first degree committed as follows, 
to-wit: The said Frank Moore, Ed. Hicks, J. E. Knox, Ed. 
Coleman and Paul Hall, in the county and State aforesaid, on 
the 1st day of October, A. D. 1919; unlawfully, wilfully, felon­
iously and with malice aforethought and after deliberation 
and premeditation did kill and murder one Clinton Lee, by 
shooting him, the said Clinton Lee, with a certain gun which 
they, the said Frank Moore, Ed. Hicks, J. E. Knox, Ed. Cole­
man and Paul Hall, then and there had and held in their 
hands, the said gun being then and there loaded with gun­



powder and leaden balls against the peace and dignity of the 
State of Arkansas.

FRANK MOORE ET AL. VS. TH E STATE OF ARKANSAS. 3 1

JNO. E. MILLER,
Prosecuting Attorney.

Endorsed: No. 4495. State of Arkansas vs. Frank Moore, 
Ed. Hicks, J. E. Knox, Ed. Coleman and Paul Hall. A true 
bill. H. E. McRae, Foreman. Indictment for murder in the 
first degree.

Filed in open court in the presence of the Grand Jurors; 
this 29th day of Oct. 1919.

A. G. BURKE,
Clerk,

Bv L. E. BERARD,
D. C.

9 Issued Bench Warrant and require Bail in the sum of
No Bail.

JAMISON M. JACKSON,
Judge.

Witnesses: John Thomas, Frank Hicks, Gillmore Jen­
kins, Ed. Mitchell, George Greer, Tom Kelley, Eddins Wooten, 
Carleton Meyers, Dr. 0. Parker, Walter Ward.

State of A rkansas,
County of Phillips:

I have duly served a copy of the within indictment to 
each of the within named defendants this Oct. 29th, 1919.

A. G. BURKE,
Circuit Clerk.

10 Original for Supreme Court.

State

vs.

Frank Moore, Ed. H icks, J. E. K nox, Paul H all, and Ed.
Coleman.

Bill of exceptions. Filed January 3rd, 1920. A. G. Burke, 
Ct. Clk.



32 FRANK. MOORE ET AJL. VS. THE STATE OF ARKANSAS.

11 In the Phillips Circuit Court, November Term, 1919.

State of A rkansas, Plaintiff,

vs.

Frank Moore, Ed. H icks, J. E. K nox, Paul 
Coleman, Defendants.

Bill of Exceptions.

H all, and E d.

m

Be it remembered, that on this 4th day of November, 
1919, the above and foregoing cause coming on to be heard 
before Hon. J. M. Jackson, Judge of the 1st Judicial Circuit 
of Arkansas, and a jury duly empaneled to hear the same at 
the regular November Term, 1919, of the Phillips Circuit 
Court, and the defendants, Frank Moore, Ed. Hicks, J. E. 
Knox, Paul Hall and Ed. Coleman appearing in person and 
by attorneys, J. I. Moore and Greenfield Quarles, and the State 
being represented by Hon. J. E. Miller, Prosecuting Attor­
ney; and both parties announcing ready for trial, thereupon, 
said cause proceeded to trial, and the following evidence was 
introduced, heard and submitted; objections and exceptions to 
testimony; instructions asked, given, modified and given and 
refused, and other things had and done in said cause as fol­
lows, to-wit:

12 State’s Testimony.

R. L. Brooks, having first been duly sworn, was called as 
a witness by the State and testified as follows:

Q. Your name is R. L. Brooks?
A. Yes, sir.
Q. Did you know Clinton Lee?
A. Yes sir.
Q. Were you with him along about the 1st of October 

of this year?
A. Yes sir.
Q. Were you with him at the time he received an injury 

down here at Elaine?
A. Yes, sir.
Q. Where was he at that time?
A. He was sitting in the extreme end, left side of the 

car, Mr. Meyers’ car.
Q. In what County and State was that?



FRA N K  MOORE ET AL. VS. TH E STATE OF ARKANSAS. 3 3

A. Phillips County, Arkansas.
Q. Was he injured there?
A. Yes sir.
Q. How?
A. By a bullet from a rifle.
Q. Where did the bullet? hit him?
A. Right under his left arm.
Q. Did you see his body?

A. Yes sir; I helped to take him in the house.
13 Q. What became of Lee then?

A. Well, we took him in the house and he died in 
about two or three minutes after we placed him in the bed.

Q. How long was it after the bullet? struck him before 
he died?

A. Couldn’t have been over 5 minutes.
Q. Did you examine his body?
A. No sir.
Q. Did you see where the bullet? went in?
A. Yes sir, I saw where it went in his clothes.
Q. And struck him under the left arm, did it?
A. Yes sir, somewhere in here (shows).
Q. Now did you hear any shots over there?
A. I don’t, I can’t say I heard the report of the rifle, I 

heard the hiss of the bullet?s, heard one of the bullets when it 
struck a little piece of iron.

Q. How many bullets did you hear?
A. Two.
Q. How long was it between the bullets?
A. Well, I imagine just the length of time it would take 

a man to unload and reload the gun.
Q. Pretty quick?
A. Yes sir.
Q. At that particular time what was this car that Mr. 

Lee was in which way was it headed?
A. It was facing towards Helena; it was not exactly 

straight up and down the road, it was in the process of turn­
ing around, it was almost North and South.

Q. Mr. Lee was sitting on the right hand side of the car? 
A. On the left hand side of the car.

14 Q. In the seat?
A. Yes sir.

Q. Then Mr. Lee was facing northwest was he?
A. Yes sir.
Q. And the bullet struck him back here?
A. Yes sir.



3 4 FRA N K  MOORE ET AE. VS. TH E STATE.OF ARKAN SAS.

Q. That would have made the bullet come from what di­
rection ?

A. From the South.
Q. And he died in a few minutes?
A. Yes sir.

Cross-examination:

Q. Who fired that shot?
A. I haven’t the least idea.
Q. You neither heard the report of the gun nor saw the 

man that fired it ?
A. No sir.
(Witness excused).

15 Dr. 0. P a r k e r ,  having first been duly sworn, was
called as a witness by the State and testified as fol­
lows :

Q. Your name is Dr. 0. Parker?
A. Yes sir.
Q. Where do you live?
A. Elaine.
Q. What is your profession?
A. Physician.
Q. Did you know Clinton Lee?
A. I did not.
Q. You remember seeing him?
A. Yes sir.
Q. When did you see him!
A. Saw him when he was dying.
Q. When did he die? Where did he die?
A. In Mr. McCoy’s house.
Q. Is t h a t  t h e  house near A v lie r e  h e  was shot?
A. Yes sir; right in front.
Q. From what did Mr. Lee die?
A. They brought the man in dying, he was dying when 

they brought him in. Mr. Tappin was on the bed there and I 
was giving him first aid; I made no examination of his body. 

Q. Did you see his body after he died?
A. Yes sir.
Q. And he died there just in a short time?
A. Yes sir, in the course of 4 minutes.

Q. Did you see the bullet hole or not?
16 A. No sir, I was busy with Mr. Tappan, and he was 

dead before I got away, before T got to him, before I 
got through with Mr. Tappan why Mr. Lee was dead.



FRAN K M OORE.ET AL. VS. TH E STATE OF ARKANSAS. .35

(No cross-examination.)

17 Tom Faulkner, having first been duly sworn, was 
called as a witness by the State and testified as follows:

Q. Your name is Tom Faulkner!
A. Yes sir.
Q. Where do you live!
A. I live in Helena, Arkansas.
Q. Do you know Clinton Lee!
A. Yes sir.
Q. Were you with him at the time he was killed!
A. I was probably 50 or 100 feet from him at the time 

he was killed.
Q. Did you hear the shots that killed him!
A. Yes sir.
Q. Where was Mr. Lee at the time he was shot!
A. Well, all the cars—he was there in one of the cars, 

the cars were right in front of this McCoy house, and the 
shots came from the South.

Q. Now did you see anybody except Mr. Leo about the 
time the shots were fired!

A. Yes sir, I saw three Negroes.
Q. Where were they!
A. They were probably 3 or 4 hundred yards South of 

this house.
Q. Where were they with reference to the road!
A. They were just off the road; a ditch runs alongside 

of it and they were just on top of this ditching.
Q. Did you see any of the negroes fire the shots?
A. Yes sir.

Q. How many shots did he fire?
18 A. Two.

Q. Which way was he pointing the gun ?
A. Towards the car.
Q. In which direction was the man standing that shot? 
A. He was facing this direction, shooting this way.
Q. He was South and shooting North then?
A. Yes sir, shooting in the direction of the car.
Q. How does the public road run there with reference 

to the railroad?
A. It runs right alongside of the railroad.
Q. On the East side?
A. Yes sir.
Q. And the men that you saw doing the shooting were



36 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

3 or 4 hundred yards South, down the road from the McCoy 
house?

A. Yes sir.
Q. Did you see any Negro or Negroes, at the time, or 

shortly before that, crossing the railroad?
A. I didn’t see any of them crossing the railroad.
Q. Did you see any of them on the East side?
A. Yes sir.
Q. How many did you see over there?
A. Well, as I can remember there was 3, there might 

have been more.
Q. Do you know what kind of gun it was that you hear- 

fire- there?
A. It was a rifle.

Cross-examination:

Q. Did you know these three Negroes you say you saw? 
A. No sir, I know they were Negroes.

19 Q. Which, if any, of these five defendants, did you 
see there?

A. I couldn’t identify any of them.

(Witness excused.)

20 John Jefferson, having first been duly sworn, was 
called as a witness by the State and testified as follows:

Q. Your name is John Jefferson?
A. Yes sir.
Q. Prior to October 1st where did you live?
A. Down at Elaine at Mr. M. P. Alderman’s plantation. 
Q. Do you know Frank Moore?
A. Yes sir.
Q. You know Ed. Hicks?
A. Yes sir.
Q. You know J. E. Knox?
A. Yes sir.
Q. And Sweat Coleman?
A. Yes sir.
Q. You know Paul Hall?
A. Yes sir?
Q. Did you belong to the union there, Farmer’s House­

hold and Progressive Union?
A. Yes sir.
Q. What lodge do you belong to?
A. To the Elaine Lodge.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 3 7

Q. Who was President of the Elaine Lodge?
A. Ed. Hicks.
Q. This man over there?
A. Yes sir.
Q. Who was the secretary?
A. The secretary, I never did for certain see the secre­

tary, the night I joined there was a call meeting, the secretary 
was not there but I was told Ed. Baker was.

21 Q. Do you know who was President of it?
A. Yes sir, I have learned.

Q. Who was it?
A. Joe Knox.
Q. One of these men over here?
A. Yes sir.
Q. Do you know who the Board members of the lodge 

were?
A. You mean the whole record of the members?
Q. No, the Board members of the lodge?
A. I don’t know none of them, no more than you called 

the leaders, the President, the Vice President and the Secre­
tary.

Q. Was there any of these men there, Frank Moore, Ed. 
Coleman, Paul Hall,—were they leaders in the lodge or not?

A. Frank Moore, I know he was there, but I don’t know 
whether he was a leader, neither these other two you called.

Q. When you went to the lodge there what did the 
parties take with them?

A. Take round to the lodge?
Q. Yes, did they take guns?
A. When I went to the lodge they had guns.
Q. What was the purpose of taking the guns?
A. Said they was looking for them to come down there 

and pick them up.
Q. Looking for who?
A. Looking for the White folks to come down there and 

break the meeting up.
Q. Well, what did they have their guns Xor?
A. They had their guns for protection, to fight with. The 

first night I went there I didn’t have no gun, and they asked 
me what did I bring to fight with and I told them I

22 didn’t — nothing, and this fellow says a couple of fel­
lows come here and broke us up.

Q. How many meetings of the lodge did you attend when 
these fellows were there?

A. I met only one meeting after I joined.
Q. Do you remember the night that meeting was on?



3 8 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

A. Yes sir.
Q. What night was it?
A. The meeting I j-ined, I j-ined Friday night before this 

racket come up there.

We object to any testimony two or three nights before 
this transaction.

Court: That will be admissible for the purpose of show­
ing a conspiracy.

Mr. Miller: That is the purpose of it, your honor.
Court: If they do not show that it is admissible, that is 

if they do not connect it with this affair, the jury will be 
instructed to disregard it.

Mr. Moore: Please note our exceptions.

Q. You met Thursday night before this killing?
A. Yes sir.
Q. Were these parties there that Thursday night?
A. I know7 Ed. Hicks was there and Frank Moore and 

this old gentleman, Sweat Coleman. Knox and Hall I didn’t 
see them there.

Q. You didn’t see those two there that night?
A. No sir.
Q. Did these fellow's have guns there that night?

A. Yes sir.
23 Q. Were you up at Hoop Spur on Tuesday night?

A. No sir.
Q. Now' where did you go Wednesday morning, October

1st?
A. There w'as two fellows, Tom Sane and Dave Bishop 

come to my house, I guess as near as I could come to it, about 
4 o ’clock in the morning.

Q. Where did you go?
A. I w'ent on out to Frank Moore’s.
Q. You went on out to Frank Moore’s?
A. Yes sir, Frank Moore’s.
Q. Did you know7 where Frank lived?
A. Yes sir.
Q. Now w'ho lived there with Frank Moore?
A. Sw'eat, he lived right across the road from his house, 

and the next house was Frank Hall.
Q. Now7 Frank Hall, is that Paul Hall’s brother?
A. Yes sir, Frank Hall’s house was closer to the other 

two houses than Paul’s house was.
Q. What time did you get there in the morning?



FRANK MOORE ET AL. VS. THE STATE OF .ARKANSAS. 3 9

A. I don’t know the exact time, but it was before day 
light.

Q. Did you see anybody thei’ef
A. Yes sir.
Q. How many were there?
A. I guess there was 45 or 50 they was scattered around 

there in the dark.
Q. What were they doing there?
A. Sitting down talking.
Q. What did they have?
A. Guns.
Q. What kind of guns?

A. Shot guns, Winchesters and this other gun 
24 45-70’s and some had pistols.

Q. Now did you see these five fellows there?
A. I seen Moore; this other gentleman, Sweat Coleman, 

and Paul, but this here Knox and Hicks I didn’t see them 
there before daylight.

Q. Now Frank Moore, Sweat Coleman and Paul Hall 
was there before daylight?

A. Yes sir.
Q. What were they doing?
A. They were all sitting down there talking.
Q. What was Frank Moore doing?
A. Frank Moore, he was there, he was in the house, pass­

ing first out doors and inside and talking.
Q. What was he saying?
A. O, I heard him come out of the house, he spoke this 

word, about they had been into it at Hoop Spur and they had 
killed a man.

Q. What else did he say?
A. He said he taken a 45 automatic and a pair of hand­

cuffs.
Q. What did he say about you boys gathering in there?
A. He didn’t say nothing then, until after daylight.
Q. Now after daylight did you see Hicks and Knox?
A. Yes sir, I seen them later up in the day.
Q. Then you saw all five of them there did you?
A. Yes sir.
Q. What were they doing there?
A. They were all there, some was over to his house and 

some was over to Sweat’s house and some was over to Paul’s 
house and some was around there in the bushes.

Q- Now what did you hear Frank Moore saying 
there during that morning?

A. I heard him say later up in the day, I guess it was



4 0 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

about 12 or 1 o ’clock; that was on the bridge in the road, he 
hollored for all of us to come on up there; he says don’t you 
hear that shooting, he says come on and let’s go up there 
and help them people out, and everybody come on up there, 
and he paired us all up.

Q. What do you mean by pairing you up?
A. Two and two.
Q. Who did that?
A. Frank Moore.
Q. Who was helping Frank Moore?
A. It was Frank Moore, Hicks and Knox.
Q. These three men over here?
A. Yes sir.
Q. They were lining you all up, two and two?
A. Yes sir.
Q. What were they telling you to do?
A. Told us all—Moore he got in front and says come 

on and let’s go and help them people out at the shooting.
Q. What did these fellows tell you?
A. Just go up there and help them out; and he started 

on out through the field, through the woods towards Hoop 
Spur.

Q. Now who was in front you say?
A. Moore.
Q. Frank Moore?
A. Yes sir.
Q. Where was Hicks and Knox?

A. Hicks was along in the middle.
26 Q. What was he doing?

A. He was walking along with the gang.
Q. And what was Know doing?
A. He was at the rear end.
Q. What was his business back there?
A. He was back there—he says if arry one breaks ranks 

he was going to shoot him down.
Q. Now that was Joe Knox?
A. Yes sir.
Q. Now where was Paul Hall at that time?
A. Paul Hall was in the gang Jut I don’t know where he

was.
Q. Was there any of the boys gathered in there at Paul 

Hall’s house?
A. Yes sir, some come in there, but they didn’t go to his 

house until after day light.
Q. What was Sweat Coleman doing?
A. He was there in the gang too. He wasn’t doing no



PRANK MOORE EX AL. VS. THE STATE OF ARKANSAS. 41

more than the rest of them, around there with his gun.
Q. What kind of a gun did he have?
A. A 45-70.
Q. What was he doing with it?
A. Well, I ain’t heard him say nothing.
Q. You never heard Sweat say anything?
A. No sir—I was not close to him.
Q. Which one of the men were you close to?
A. When, we was marching on up I was near to the rear 

end, I was not far from Ed. Hicks.
Q. Frank Moore, and Ed. Hicks and Knox, they had yon 

in charge there?
A. Yes sir.

27 Q. And Coleman and Paul Hall was along?
A. Yes sir, they was along with us.

Q. Now, did all these parties have guns?
A. All of them had guns.
Q. Now where did you go from there?
A. We went on and marched out through the woods, on 

up to the open field.
Q. Who had you in charge all that time?
A. The same fellows. And we come out through the 

field, we come out I guess about a quarter of a mile from the 
house, and we seed this crowd of men and this fellow Moore 
he stopped and we stopped and he says; Hicks says let’s go 
across this way and cut them off.

Q. Cut who off?
A. These white gentlemen at this house.
Q. What crowd of men was that?
A. I don’t know.
Q. What kind of fellows were they?
A. White fellows.
Q. Then you started across, north------
A. About a quarter of a mile from the house where they 

was, we turned and went across the railroad.
Q. Who decided to turn back here to the railroad?
A. After we got to the field?
Q. Yes.
A. Ed. Hicks and Frank Moore.
Q. Why were you doing that?

A. They was coming out there to go across there
28 and cut the white men off.

Q. Did you turn and go across there?
A. Yes sir.
Q. What did you do then?



4 2 FRANK MOORE ET AL. VS. THE STATE OF * ARKANSAS.

A. We all went across there—some went across the rail­
road and some stopped on the other side.

Q. As you were crossing the railroad there, where does 
the public road run there?

A. The railroad and the public road, right side by side. 
Q. Parallel, side by side?
A. Yes sir.
Q. On which side of the railroad did you come up from? 
A. We come up from over on the West side.
Q. You were coming from the West going East?
A. Yes sir.
Q. Which side of the railroad is the public road on?
A. It is on the East side of it.
Q. Do you know where the McCoy house is there?
A. Yes sir.
Q. Did you cross the railroad there?
A. Where, we struck it, yes sir.
Q. How far from the McCoy house was it to where you 

struck the railroad there?
A. It is about a quarter of a mile.
Q. Which way is the McCoy house from the railroad? I 

mean from where you boys crossed the railroad?
A. It was north-west.
Q. As you crossed the railroad there did anything hap­

pen?
A. Yes sir, that is where this fellow made the two 

29 shots.
Q. Which fellow?

A. Frank Hicks.
Q. Was he in the bunch there?
A. Yes, sir.
Q. Frank Hicks made the shots?
A. Yes sir.
Q. Did you see Frank Hicks when he made the shots?
A. Yes sir, 1 did.
Q. Where was he?
A. He was in the public road.
Q. How did he shoot?
A. Well, he just squatted that away and took aim and 

made two shots.
Q. What kind of a gun did he have?
A. He had one of them 45-70’s too.
Q. Did he say anything?
A. Yes sir.
Q. What did he say?



4 3FRANK MOORE ET AL. VS. THE STATE OF, ARKANSAS.

We object, Frank Hicks is not on trial.
Court: I understand, but he was present with the de­

fendants.
Mr. Moore: It is not shown he could have heard what

was going on.

Q. Where was Moore then?
A. Moore, he was out there in the road too, he wasn’t so 

far from Hicks.
Q. What was he saying?
A. I ain’t heard him say nothing.

Q. But he was right there?
30 A. Yes sir.

Q. That was the man that lead you up there?
A. Yes sir.
Q. Where was Ed. Hicks?
A. He was across the road, he was over in the field.
Q. How far was he from you?
A. From the fellow that shot— I guess may be he was 25 

or 30 yards.
Q. Where was Sweat Coleman?
A. I don’t know where he was, but he was in the gang 

there somewhere.
Q. You know how close he was to Frank Hicks?
A. Sweat Coleman?
Q. Yes.
A. No sir.
Q. Where was Joe Knox?
A. Joe Knox, I seen him he was on the side of the rail­

road.
Q. How close to Hicks?
A. He was about 15 or 20 yards from Hicks.
Q. Do you know where Paul Hall was?
A. No sir, I don’t know where he was.
Q. Now at that time what did you say Frank Hicks said ?
A. At the time he shot?
O sir.
A. He made the first shot, he taken his gun down and 

re-loaded it, and somebody was in the gang and told him 
don’t shoot, but I could not testify who it was, he says yes, 
I am going to shoot, and he threw up and made the second 

shot, and and when he made the second shot he said, 
31 I would have got that guy if it hadn’t been for

the horse; there was a horse between him and this 
S’entlemen where he shot.

Q. After that where did you go?



44 FRANK MOORE EX AX. VS. THE STATE OF ARKANSAS.

A. After that we went on across, part of the gang, you 
see it was split all up after these two shots was made; after 
that all of us went down the West side of the track, and the 
other gang went on the other bank; we split up there after he 
made the shots, some went on the West side of the railroad 
and some went on the East side.

Cross-examination:

Q. Now you say you were all called together, and when 
you heard these shots, you went up the road to help the folks 
out?

A. Yes sir.
Q. How far was it up there to that place?
A. Oh, I don’t know, I guess it was something like a 

mile.
Q. That was where you gathered together to help out 

somebody wasn’t it?
A. That was where we was gathered at, that was before 

we left to go.
Q. How far was it from where this shooting was done by 

Hicks up to where the shooting you had heard, how far was it 
from there?

A. From Moore’s house?
Q. Yes.
A. I guess nigh a mile, or a mile or two.
Q. Where did you go after the shooting?
A. After the shooting, went over on Yellow Banks, on 

the West side of the road.
32 Q. When were you arrested, captured?

A. I was out there on Mr. Alderman’s place.
Q. They went down there and got you?
A. Hes sir, the agent sent for us to come up here; eight 

or nine of us to come to his house.
Q. Who was the agent?
A. Mr. Curry.
Q. You have been indicted for murder too, here, haven’t 

you?
A. I got one of them bills like all the rest of us got.
Q. What else did you get?
A TVmt’<? nil
Q. You got that bill all right?
A. Yes sir.
Q. What does it say?
A. The bill says murder in the first degree.
Q. Who have you talked to about this case?
A. I don’t know how you mean?



FBANK MOOBE ET AL. VS. THE STATE OF ABKANSAS. 45

Q. Did you tell somebody this story before you went on 
the witness stand?

A. Yes sir.
Q. Who did you tell it to?
A. I talked it around here, they questioned me down 

there, I don’t know who it was, it was some of the gentlemen 
1 talked to one or two before I talked to these other.

Q. Who was it said don’t shoot down there when Hicks 
was shooting at that man?

A. I don’t know somebody in the crowd, sa?/d don’t 
shoot, but I couldn’t testify who it was.

Q. Were you before the Grand Jury?
A. No sir, I ain’t never been before the grand jury.

33 Q. You say you were not before the Grand Jury and 
gave your testimony?

A. I give my testimony, I don’t know if it was for the 
Grand Jury or not. I give my testimony down here.

Q. How many men were there in the room when you 
were in there?

A. I don’t know sir, looked like to me it was 6 or 7.
Q. What did you go into that thing for; who did you ex­

pect to kill when you went into that lodge?
A. I didn’t expect to kill no one.
Q. You didn’t join it for the purpose of killing anybody 

then?
A. No sir.
Q. When did you make up your mind to kill somebody?
A. I ain’t never made up my mind to kill anybody.
Q. When did these fellows make up their minds to kill 

somebody ?
A. I don’t know when they made up their minds to kill 

somebody.
Q. Whose gun did Ed. Hicks use in shooting at Mr. Lee?
A. I seen him with it when I first seen him, I ain’t seen 

him get it from nobody else.
Q. You didn’t see him get it from anyone else?
A. No sir, he had it when I seed him.
Q. Did Sweat Coleman have a gun at that time?
A. Yes sir, he had a 45-72.
Q. He didn’t give that to Hicks to do the shooting with?
A. No sir, I ain’t seen him give it to him, Hicks had one.
Q. How long have you lived down there in that country?
A. Down there at Elaine?
A. Yes?

A. I have been down at Elaine, soon be 5 years.
34 Q. Where did you come from when you went there?

A. I left from Helms, Miss.



46 FRAN K MOORE ET AL. VS. THE STATE OF ARKANSAS.

Q. What County is that in?
A. Washington County.
Q. What did you do over there that you had to come 

over here?
A. I didn’t do anything. I left there in 1914; the panic 

was on and I was hunting for somewhere to make a living.
Q. You think it was profitable to come over here and 

organize a lodge for killing people?
A. No sir, I didn’t come for that.
Q. When did you find out that somebody was to be killed 

after you joined that lodge?
A. I didn’t find out that nobody was to be killed, but I 

heard this Hill mention it in the lodge that it was going to be 
trouble, but just for to say kill somebody I never heard 
nothing about it?

Q. Where is Hill?
A. I don’t know, that is the first time I ever seen him 

and the last time.
Q. Have you been looking for him since?
A. No sir.
Q. Now Hill was the man that said there was going to 

be trouble was he?
A. Yes sir.
Q. Did anybody else say there was going to be trouble?
A. I haven’t heard anybody else.
Q. None of these fellows said that did they?
A. No sir.
Q. Did you hear any talk about killing anybody that 

morning when you met there before daylight?
A. No sir, 1 didn’t hear no one say they were going to 

kill somebody elce.

Witness excused.

35 W alter W ard, having first been duly sworn, was 
called as a witness by the State and testified as follows:

Q. What is your name?
A. Walter Ward.
Q. Where did you live prior to October 1st?
A. At Dr. Cruise’s.
Q. Near Elaine?
A. Yes sir.
Q. Did you know Paul Hall?
A. Yes sir.
Q. You know Prank Moore?



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 4 7

A. Yes sir.
Q. Ed. Hicks?
A. Yes sir.
Q. Do you know Sweat Coleman?
A. Yes sir.
Q. Do you know J. E. Knox?
A. Yes sir.
Q. You belong to the Union?
A. Yes sir.
Q. The Farmer’s Progressive Household Union of 

America ?
A. Yes sir, I belong to the Union.
Q. What union did you belong to?
A. The same one they belonged to.
Q. The same one who belonged to?
A. Hicks and them.
Q. You mean these fellows over here?
A. Yes sir.
Q. They belonged to your Union?
A. No sir, I belonged to dey union.

Q. 1 thought you said their union?
36 A. That is who 1 jined under.

Q. Who had charge of the union that you joined?
A. Hills and Ed. Hicks, is all I know.
Q. You saw these other fellows in the Union there?
A. Yes sir.
Q. Did they take anything with them when they went 

to the Union?
A. No sir, I didn’t—they taken guns is all I saw.
Q. You know why they taken them?
A. They said they was looking for trouble.
Q. Who said that now?
A. That is what the head leaders said.
Q. Who were the head leaders?
A. Ed. Hicks is one of them and Hill was one.
Q. This man here?
A. Yes sir.
Q. What about Frank Moore?
A. Frank Moore was one of them too.
Q. One of the leaders?
A. Yes sir.
Q. What about Knox?
A. They tell me he is Vice President.
Q. You need not tell anything unless you know it, don’t 

tell anything anybody said or told you.



4 8 FBANK MOOBE ET AL. VS. THE STATE OF ARKANSAS.

Judge Moore: We object to the leading questions he has 
been asking.

Objection sustained.

Q. Where were you on Wednesday morning?
A. I was at home until about half past four.
Q. Where did you go then?
A. Paul Hall woke me and told me to go to Ed. Hicks’ 

house.
37 Q. This man over here?

A. Yes sir.
Q. He came to your house?
A. Yes sir, him and two more men, I didn’t know the 

other two.
Q. Wednesday morning?
A. Yes sir.
Q. What did he tell you to do?
A. He told me to get up and I told him I was sick, and 

he told me to get up and come to the door and I did so, and 
he told me that Frank Moore sent him after me, and for me 
to go and wake up the President; and I told him I was sick 
he says well you got to go, you will have to crawl, he says 
get your gun, I says it is over to old man Keys, and he says 
come if you ain’t got no gun.

Q. What did he say he wanted you to do ?
A. I didn’t know what he wanted me to do until I got 

over there.
Q. Paul Hall sent you to Ed. Hicks, the President?
A. Yes sir.
Q. And told you to go back where?
A. Told me to come on back over to Frank Moore’s 

house, at the bridge at Frank Moore’s house.
Q. Did you go?
A. Yes sir.
Q. Did you take your gun?
A. I didn’t have narry one until I got there.
Q. Who did you get one from?
A. Frank Moore.
Q. How come you to get one from him?
A. He gave me a 32 Smith & Wesson.
Q. Who did, Frank Moore?

A. Yes sir.
38 Q. Did he tell you what he wanted you to do with 

the gun?
A. He didn’t tell me until the shooting at Hoop Spur 

then he hollered come on, and all of us was over at Frank 
Hall’s house and he hollered come on.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 49

Q. Who hollowed that?
A. Frank Moore. He lines us up two deep, and he got 

in the lead and had Hicks near the middle and Sweat was 
behind.

Q. Where was Knox?
A. Knox was in the line somewhere but I couldn’t tell 

you where.
Q. Where was Paul Hall?
A. He was in line but I couldn’t tell you where.
Q. During the morning there, how long did you boys 

stay there?
A. We stayed there until 11 or 12 o ’clock.
Q. Now during the morning did you have any conversa­

tion with Paul Hall, or hear Paul making any talks there?
A. No sir.
Q. Did you hear Frank Moore say anything?
A. Yes sir.
Q. What was Frank saying?
A. He was telling Ed. Hicks that they had been to Hoop 

Spur and they had killed a White man at Hoop Spur and a 
colored one, and they took a 45 automatic off of them.

Q. What else did he say?
A. He said he wanted us to go up there.
Q. For what purpose?
A. He didn’t say for what purpose, but he says let’s go, 

he says if a man breaks ranks he was going to turn loose on 
him; and if they find a man picking cotton in the 

39 field, that is where they were going to kill him at,
right there.

Q. Did you see Sweat Coleman there?
A. Yes sir.
Q. Did you hear him talking that morning?
A. Yes sir. That was at Frank Moore’s house, he had 

a 45-70 Sweat did.
Q. What was Sweat doing?
A. Nothing but moving this 45-70 around.
Q. What was he saying?
A. All he was saying, I got a 45-70 Sweat
Q. What did he say he was going to do with it?
A. He didn’t near say; if he did I didn’t near hear him.
Q. He called it a 45-70 Sweat?
A. Yes sir.
Q. Now where did you Negroes go from there?
A. We went on across that field there. I don’t know 

whose field it is, Mr. Archdale’s I reckon, and went up to 
where that gang of TYhite folks was at the house and we split



5 0 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

there; I went on across the field, some of us went across the 
railroad, and some stayed on this side, and Frank Moore and 
Frank Hicks set down in the road.

Q. Where was Paul Hall at that time?
A. Paul Hall was over in the field on the other side of 

the railroad.
Q. Where was Coleman?
A. Old man Coleman was over on the other side of the 

road—I don’t know which side.
Q. Where was Knox?

A. Up on the railroad.
40 Q. What happened there?

A. Frank Hicks made two shots.
Q. How close were you to him?
A. I was over inside of the field, about 10 yards from

him.
Q. Who was the closest man to Frank Hicks?
A. Frank Moore was sitting down close to him as from 

here to that gentleman.
Q. Where did he shoot?
A. He shot up the road, up there, at Dr. Richardson’s 

house down in the field, right up the road.
Q. Right up the road at the McCoy house?
A. Yes sir.
Q. Did he shoot north or south?
A. Shot north.

Cross-examination:

Q. You say you didn’t have any gun?
A. No sir, I didn’t have any gun.
Q. Now when you got out of bed and started to go to 

that house—whose house did you say you were told to go to? 
A. Ed. Hick’s house.
Q. You were told to go and wake him up?
A. Yes sir. Wake up all on that road.
Q. Did you go?
A. Yes sir.
Q. Who went with you?
A. Nobody didn’t go with me, but some come behind me. 
Q. Why didn’t you stay out of that thing if there wasn’t 

anybody there to make you go?
41 A. I was scared. I was scared to go to the White 

folks.
Q. If you were scared that was a mighty good time to 

make your get-away, if there wasn’t anybody with you?



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 5 1

A. I couldn’t get away from the gang when the gang 
come right back by my house.

Q. But you went up to his house alone?
A. All the gang was behind me.
Q. All the gang? Have you been indicted with this 

bunch ?
A. Yes sir.
Q. What did they indict you for?
A. For some kind of murder, I don’t know.
Q. Who are you accused of killing?
A. Clinton Lee.
Q. Did you shoot at Clinton Lee?
A. No sir.
Q. Did you tell anybody else to shoot at him?
A. No sir.
Q. Did you have any agreement with anybody that he 

or anybody else should be killed?
A. No sir.
Q. Did anyone in this affair have any agreement there 

with anybody else that any one would be or should be killed?
A. That was Hill’s speech that night.
Q. But there was no trouble on hand then?
A. No sir, wasn’t no trouble on hand then.
Q. Who after that night ever intimated that anybody 

was to be killed? Any one ever intimate after that night that 
Hill had the lodge meeting, two weeks before, that anybody 
was to be killed?

A. I hadn’t been in there two weeks.
42 Q. Did you ever, after you joined, did ever any of 

the members, either these defendants or anybody else, 
tell you that anybody was to be killed?

A. No sir.
Q. Then the only fellow whom you ever heard discuss 

that was this fellow Hill who is gone?
A. That’s the only man I ever heard.
Q. Did anybody tell Frank Hicks to shoot that gun?
A. No sir, George Green told him to don’t shoot; he was 

on the railroad.
Q. What did you do after the shooting ?
A. I run. Started to run and they said God damn you 

stop, where in the hell you niggers going.
Q. Did you stop?
A. Yes sir, we stopped.
Q. Then what did you do?
A. Some of us laid down in the woods and some of us 

got behind stumps and laid there until Frank Moore says let’s



5 2 FRANK MOORE ET AX.. VS. THE STATE OF ARKANSAS.

go, and we went on back down in the corn field, and when the 
train passed up Frank and them went on to Henry Thomas’ 
house.

Q. Where did you go from there?
A. Went across Yellow Banks.
Q. How long did you stay down there?
A. Stayed down there until dark.
Q. Then where did you go?
A. I went on across Mr. Craig’s and Mr. Crow’s field

and went back on the place, and Mr. Lingard got------
Q. Who was with you?

43 A. Knox was over there.
Q. Were you and Knox hunting for trouble then?

A. No sir, we was getting out of trouble.
Q. Did you say you staid there until Friday—what be­

came of you then?
A. I come on up to Elaine and give up to Mr. Cazort 

and they told us niggers to come out of the bushes and stop 
cutting the fool.

Q. What had you been doing?
A. I hadn’t been doing nothing but I was scared to go 

where the white folks was at.
Q. And here you are up here under indictment and you 

haven’t done a thing.
A. No sir.
Q. What have these other fellows done to anybody?
A. I don’t know as they made a shot.
Q. So far as you know they haven’t done anything to 

anybody ?
A. No sir.
Q. You woke up the President?
A. Yes sir.
Q. Was he sick too?
A. No sir, he didn’t say he was.
Q. What did you tell him to do after you woke him up? 
A. I told him Frank Moore sent for us to meet over at 

Frank Moore’s house.
Q. Did you meet over there?
A. Yes sir.

Redirect examination:

Q. Who was it told you to stop?
44 A. I don’t know, it was some of them hollored to 

us to stop.
Q. You stopped?



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 5 3

A. Yes sir, he says God damn you stop.
Q. Then they were ready to shoot somebody else other 

than white folks—you thought they were going to shoot you? 
A. I know they would if I had kept going.

(Witness excused.)

45 Dave A rcher, having first been duly sworn, was 
called as a witness by the State and testified as fol­
lows:

Q. Your name is Dave Archer?
A. Yes sir.
Q. Did you belong to the Union?
A. No sir.
Q. Do you know Paul Hall?
A. Yes sir.
Q. And Frank Moore?
A. Yes sir.
Q. And Ed. Hicks?
A. Yes sir.
Q. And Sweat Coleman?
A. Yes sir.
Q. And J. E. Knox?
A. Yes sir.
Q. You remember the trouble that came up down in 

that country?
A. Yes sir.
Q. Where were you Wednesday morning?
A. When the first trouble happened?
Q. The Wednesday morning after the Tuesday night? 
A. I was in the alfalfa patch right there behind my 

house.
Q. Did you go any place that morning?
A. Yes sir.
Q. What time?
A. About 10 o ’clock.

46 Q. Where did you go?
A. Ed. Hicks sent out some men after the fellows 

that didn’t belong to the Union to capture them and put 
them------

Q. Did they capture you?
A. Yes sir.
Q. You mean these negroes?
A. Yes sir.
Q. What did they do with you?



5 4 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

A. They carried me over and put me in Ed. Hicks’
squad.

Q- Where was Ed. Hicks’ squad?
A. Over at Paul Hall’s house.
Q. How long did you stay there?
A. Just about an hour before I got away.
Q- How did you get away?
A. Hicks was pointing the way for us men to go to

watch for the white people------
Q- What were they going to do?
A. He said they was going to kill the white people when

they come down there.
Q. Who said that?
A. That is what Hicks told the men.
Q. Told you negroes to do that?
A. Yes sir.
Q. What did you do then?
A. I went down in the slough with them, and when we

got down in the slough why I laid my weapon down and I 
says I will be back directly, 1 says you watch until I come 
back, and I went on down in the slough and got in the field, 
the way they carried me; and I went on down to Elaine, and 
before I got to Elaine good the white people was coming up

there and so Mr. Stokes------
47 Q. You live on Mr. Stokes’ place!

A. Yes sir.
Q. You got away and went where?
A. To Elaine.
Q. To whose house?
A. 1 went on down to Elaine and told them about they 

Pad me and T got away; I got Mr. Stavton to bring me back 
to his house.

Q. You have been indicted and charged with any—you 
have been arrested have you?

A. No sir.
Q. Now you say Ed. Hicks took charge of you when vou 

got there—did you see Frank Moore there?
A. Frank was at his house, they first carried me to 

Frank’s house.
Q. Did you hear Frank Make a speech?
A. Yes sir.
Q. What did he say?
A. He said he was going to do the same thing he was 

telling his men.
Q. To do what?



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 5 5

A. Ho was going to kill all the white people that come 
down there that evening.

Q. Did you see Joe Knox?
A. Preacher Knox, no sir.
Q. Sweat Coleman, did you see him?
A. He was at his house, they carried me right through 

his yard.
Q. Did you hear him say anything?

A. No sir, they didn’t let me stop there.
48 Q. Did you see him with a gun?

A. He was setting on the gallery, he hollored, he 
says hello, they have got you.

Q. Did you see Paul there?
A. Paul was at his house.
Q. And then they carried you over to Paul’s house?
A. They carried me over to Frank’s and they cele­

brated me over to Paul’s house.
Q. They escorted you from one house to the other?
A. Yes sir.
Q. Had the boys left there before you did?
A. No sir, I left when that fellow Hicks over there told 

them all to get in the slough.
Q. Did you see Paul Hall with anything that morning? 
A. He had a Winchester.
Q. Did he say anything?
A. No sir, he was watching for the white folks, he said. 
Q. He said he was watching for them?
A. Yes sir.
Q. You say Ed. Hicks and Frank Moore did most of 

the talking to you there, in your presence?
A. Yes sir.
Q. Did you hear Sweat say anything?
A. No sir, they didn’t let me say anything to Sweat.
Q. Did you hear Knox say anything?
A. No sir, I didn’t hear nothing of him.

Cross examination.

Q. What you say your name is?
49 A. Dave Archer.

Q. Where are you from?
A. Elaine.
Q. How long have you lived at Elaine?
A. Well, I have been with Mr. Stokes three years.
Q. Where did you come from when you went there? 
A. I came from Modoc.



Q. How long—you live at Modoc?
A. I lived there about thirteen or fourteen years.
Q. Who do you live with!
A. I used to stay with Mr. Jim Harden.
Q. How long since Jim Harden lived at Modoc?
A. I don’t know exactly, when I come from Mississippi 

over here to Modoc he was there, and I don t know how long 
that has been.

Q. Don’t you know that Mr. Jim Harden hasn’t lived at 
Modoc for 15 years?

A. Well, I lived on his place.
Q. Who is your father-in-law?
A. Alex Brown.
Q. When did you tell Mr. Stokes about what was go­

ing on over there?
A. Well, I told them just as soon as I got away from 

them.
Q. That same day?
A. Yes sir.
Q. Did you tell him who it was?
A. Yes sir, I told him who carried me over there, the 

3 men, one was named Smith, but the other two boys, Dr. 
Cruise told me they was name- Foster, but they was 

strangers to me. The army man carried me.
50 Q. What did you have?

A. They made me get my gun too.
Q. What kind of a gun?
A. Shot gun.
Q. Double barrel shot gun?
A. Yes sir.
Q. Did you have it loaded?
A. No sir, I had my loads in my pocket.
Q. You have told about what other people said over 

there, what did you say?
A. I didn’t say anything.
Q. Did you tell them that they ought not to do that?
A. I was scared.
Q. Did you say anything or not?
A. I didn’t say anything, I was scared, I was studying 

how to get away.
Q. Were you very badly frightened?
A. Lord, yes sir.
Q. But you remember what these other fellows said?
A. Yes sir, T took good notice of what the boss mens 

says.
Q. Who were the boss men?

56 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 5 7

A. Mr. Hicks there and Mr. Moore.
Q. What did Knox say?
A. I didn’t hear him say anything.
Q. What did he do?
A. I don’t know what he did do.
Q. What kind of a gun did Knox have?
A. I never did see his gun.
Q. Have you told all you know about this case?
A. That’s all I know, no more than what they done to 

me, as I told you.

(Witness excused.)

51 J. Graham Burke, having first been duly sworn, was 
called as a witness by the State and testified as fol­

lows:

Q. Your name is J. Graham Burke?
A. Yes sir.
Q. Judge, you know Sweat Coleman and J. E. Knox?
A. Yes sir.
Q. And Ed. Hicks?
A. Yes sir.
Q. And Paul Hall?
A. No sir, I don’t know him.
Q. Now did you have a conversation with these three 

men?
A. Yes sir.
Judge Moore: Who had the conversation with them?
A. Well, Mr. Mosby and myself together, I don’t recall 

now which one.
Q. Where was that conversation?
A. In the County Judge’s office down stairs.
Q. Was that a conversation or an investigation you 

were making?
A. It was an investigation that we were making at that 

time.
Q. You were acting as municipal court judge were you?
A. No, not in that sense.
Q. You were not undertaking to commit these people 

to jail?
A. No sir, more tcf find out who were in the various 

gangs.
Q. How did they happen to be there in your presence, 

who brought them?



5 8 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

A. We sent for them they were in jail, they were in 
custody.

52 Q. You sent for them and brought them out there? 
A. Yes sir.

Q. Were they charged with any criminal offense!
A. Well, yes sir, warrants had been issued for them. 

But at that time there was no way of having them tried, 
Judge Moore------

Q. Did you advise these men, you or Mr. Mosby, that 
what they said there would likely be used against them?

A. I don’t know that we did, no sir, we just merely 
asked them questions and they either denied them or ad­
mitted them.

Q. They were not put on notice that you were making 
an investigation to ascertain whether they were criminally 
responsible?

A. No sir. The questions were merely asked, and they 
either had the right to answer or deny them.

Q. You knew they were under arrest?
A. Yes sir.
Q. And you had them brought in by an officer?
A. Yes sir.
Q. And an officer was present?
A. Yes sir. T don’t know that the particular officer

that brought them in was present------
Q. I am not asking you about the particular officer.

(End of Judge Moore’s examination.)

Q. Was there any coercion used in talking to these 
negroes?

A. No sir.
Q. Any promises of reward made to them?
A. If anybody made them any promises I don’t know it, 

I didn’t.
53 Q. Were their statements or not made voluntarily 

to you?
A. Yes sir.
Q. Or there in your presence?
A. Yes sir.
Q. Did you indulge in any tactics that cause them to 

make any statements through fear?
A. No sir.
Q. At that time or at any other time?
A. No sir.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 59

Recross-examination:

Q. Were they handcuffed?
A. No sir.
Q. Did anybody else use any coercion?
A. No sir.
Q. Was there any coercion, to your knowledge, used at 

any time before they were brought before you?
A. Not that I know of Judge Moore. There wasn’t 

any used in my presence.

Redirect examination:

Q. Judge Burke, you say you heard Sweat Coleman 
make statements concerning his connection with it?

A. Yes sir.
Q. Just tell the jury what he said about it?
A. As well as I remember Mr. Moselv or myself one 

asked him if he was a member of the Union and he 
54 admitted that he was, and we asked him when he re­

ceived knowledge of the fact that there had been a 
man killed at Hoop Spur, and admitted that he found it out 
the next morning, and that he was either at Frank Moore’s 
or Paul Hall’s house, and that they ganged up there and after 
the shooting up at Hoop Spur they went up there with the 
gang.

Q. Did he say anything about having a gun?

We object, let the witness state.

A. Well, I don’t remember, recall what kind of a gun he 
said he had, I remember he made the statement that he had 
a gun, but I don’t remember what kind.

Q. Did he say anything about where he went?
A. 0-, yes, he told us where he went, that after he left 

there------

We object to that as leading.
Court: Yes, this is an intelligent witness.

A. If you wish for me to go into dentils I will do so. He 
made the statement that whoever it was, I have forgotten 
now who he said notified him, but any way he went up to 
Frank Moore’s house or Paul Hall’s house and they set 
around there, and different ones of them ganged around there 
until 11 or 12 o ’clock, when the shooting happened at Hoop



60 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

Spur—the gang organized and went towards Dr. Richard­
son’s place, and that when they got up to the railroad track 
there, Sweat told about these two shots being fired. I don’t 
recall now whether he told who it was that made the shots, 
but there was two shots made there he said, and they split 
up there and went on each side of the railroad, on which side 
of the track Sweat was I don’t remember what he said about 
that, whether he said he went towards Yellow Banks or on 

the other side of the railroad.
55 Q. He told you about the two shots?

A. Yes sir, he was up there and said these two shots 
were made.

Q. What about Knox?
A. Well, Knox’s statement was practically the same as 

Sweat’s so far as that point is concerned; that he went up 
there with the gang, that he got with them and went up to­
wards Dr. Richardson’s; as to where he said he was when 
these shots were made, I don’t recall.

Q. Did he say he went up there with the gang?
A. Yes, he admitted that he went up there with the 

gang.
Q. Now what about Ed. Hicks?
A. Well, Ed. Hicks’ statement was about the same, that 

he was in the gang that went towards Mr. McCoy’s house; 
and after he got up there these shots were fired; that he took 
a gang of negroes and went on one side of the railroad— 
seems that the crowd split! there, according to his statement 
part followed Frank Moore and some went with him and went 
back toward Yellow Banks, but he admitted being in the gang 
that went up there.

State rests. ,,
Defendants rests. (Defendants offered no testimony.)

56 Instructions.

Oral.

Thereupon, the Court orally instructed the jury as fol­
low:

“ Gentlemen of the jury, the defendants, Frank Moore, 
Ed. Hicks, J. E. Knox, Ed. Coleman and Paul Hall have been 
indicted by the grand jury of your county charged with the 
crime of murder in the first degree, committed as follows, to- 
wit: The said Frank Moore, Ed. Hicks, J. E. Knox, Ed.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 61

Coleman and Paul Hall, in the County and State aforesaid, on 
the 1st day of October, A. D. 1919, unlawfully, wilfully, fel­
oniously and with malice aforethought and after deliberation 
and premeditation did kill and murder one Clinton Lee, with 
a certain gun which they, the said Frank Moore, Ed. Hicks, 
J. E. Knox, Ed. Coleman and Paul Hall, then and there had 
and held in their hands, the said gun being then and there 
loaded with gun powder and leaden balls.

Under this indictment, gentlemen, it is sufficient, if the 
proof justifies it, to convict the defendants of murder in the 
first degree, or to convict them of murder in the second de­
gree or to acquit them.

Murder is the unlawful killing of a human being in the 
peace of the State with malice aforethought either express or 
implied; the manner of the killing is not material, further 
than it may show the disposition of mind or the intent with 
which the act was committed. Express malice is that deliber­
ate intention of mind to unlawfully take away the life of a 
human being, which is manifested by external circumstances 

capable of proof. Malice shall be implied when no con- 
57 sideiable provocation appears, or when all the circum­

stances of the act manifests am abandoned or wicked 
disposition. The killing being proven, the burden of prov- 
ing circumstances of mitigation that justifies or excuse- the 
homicide shall devolve upon the accused, unless by the proof 
upon the part of the prosecution it is sufficiently manifest 
that the offense amounted only to manslaughter, or that the 
accused was justified or excused in committing the homicide. 
All murder which shall be perpetrated bv means of poiswo or 
by lying m Avait, or by any other kind of ivilful, deliberate, 
malicious or premeditated killing shall be deemed murder in 
the first degree; all other murder shall be deemed murder in 
the second degree. You will observe that in order to consti- 
tute murder m the second degree it is neccessary to show that 
the killing was unlaAvful and done with malice aforethought • 
it is immaterial for hoAv long the malice existed so that it ex­
isted and preceded and caused the homicide. No deliberation 
and premeditation is necessary in murder in the second de­
gree; to raise it to murder in the first degree there must not 
only be malice aforethought, but the specific intent to kill 
and premeditation and deliberation, and premeditation means 
thought ot before hand; deliberation means the having in 
mmd the consequences of a course of conduct as distinguished 
trom acting on a sudden impulse Avithout the exercise of the 
reasoning powers. It is immaterial how long the premedita­
tion and deliberation exists so that it existed and preceded



62 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

tb,e killing. In other words, gentlemen of the jury, the dis­
tinction between murder in the first degree and murder in 

the second degree there need not be specifi/  intent to
58 take human life at the time the fatal shot is fired. 

Nor need there be any premeditation or deliberation;
that is the distinction between murder in the first and murder 
in the second degree; in murder in the first degree it must be 
done with malice aforethought and with premeditation and 
deliberation and with the specific intent to take human life at 
the time the fatal shot is fired.

The defendants in this case, gentlemen, are indicted for 
murder, or rather are charged in the indictment with murder 
in the first degree; they are indicted as principals, under this 
section of the Statute: One who aids, assists, abets, advises or 
encourages shall be deemed in law a principal, and be puni­
shed accordingly. So, if you find from the evidence in this 
case that the defendants, Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman and Paul Hall were present at the time 
that Clinton Lee was killed, and that they, or either of them, 
aided, assisted, abetted, advised or encouraged the commis­
sion of the offense, and were present at the time the offense 
was committed, then you will find them guilty as charged in 
the indictment, and the punishment is the same as the princi­
pal.

If you find, from the evidence in this case that the de­
fendants are guilty as charged in the indictment or rather 
that some of the defendants are guilty, it is youp duty to 
find the ones guilty that the evidence shows is guilty beyond 
a reasonable doubt and to exonerate or acquit the ones that 
you have a reasonable doubt as to their guilt; in other words, 
you may find all of the defendants guilty, or a part of them 
guilty, one or any number of the defendants guilty; and you 
can find them guilty of murder in the first degree or guilty 
of murder in the second degree; and if you find from the evi­
dence that the defendants are guilty but entertain a doubt 

as to whether they are guilty of murder in the first
59 degree or guilty of murder in the second degree, 

then it becomes your duty, under the law, to give the
defendants, or defendant, the benefit of that doubt, and find 
them guilty of the lower or lesser degree; that is or murder 
in the second degree; and if upon the whole case you should 
entertain a reasonable doubt as to the defendants’* guilt, you 
should give them the benefit of that doubt and find them not 
guilty.

If you find from the evidence in this case that the defend­
ants are guilty as charged in the indictment, the form of



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 6 3

your verdict will be: We, the jury find the defendant (giv­
ing the names of the ones you find to be guilty) guilty as 
charged in the indictment, of murder in the first degree, and 
sign it by one of your number as foreman. In the event that 
you return that kind of a verdict, the law fixes the punish­
ment, which is death by electrocution; and the other form of 
your verdict for murder in the first degree is: “ We, the
jury, find the defendants (naming them) guilty as charged in 
the indictment, of murder in the first degree, and fix their 
punishment at life imprisonment in the State Penitentiary.”  
In other words, gentlemen, it is optional or in the discretion 
of the jury as to whether the death penalty or life imprison­
ment is inflicted, in the event you should find the defendants 
guilty of murder in the first degree.

If you find the defendants guilty of murder in the second 
degree, the form of your verdict will be: We, the jury find 
the defendants, (naming them) guilty of murder in the sec­

ond degree and fix their punishment” —confining them 
60 to the Penitentiary for some period of years, not less 

than five nor more than 21 years.
If upon the whole case you should entertain a reason­

able doubt of the defendants’ guilt you should give them the 
benefit of that doubt, and in that event the form of your ver­
dict would simply be: We, the jury, find the defendants not 
guilty. ’ ’

Gentlemen of the jury, you understand that under this in­
dictment, where there are five defendants indicted charged 
with murder in the first degree, you can find one of the de­
fendants guilty of murder in the first degree, and one guilty 
of murder in the second degree and find some of them not 
guilty, or just as the evidence shows in the case. Under this 
indictment they are indicted jointly, and where the evidence is 
not sufficient to warrant the conviction of murder in the first 
degree, you can find them guilty of murder in the second de­
gree, that is one or more; or if the evidence is not sufficient 
to warrant a conviction of murder in the second degree, of 
one or more of them, and you have a reasonable doubt of 
their guilt, as stated to you before, you should give them the 
benefit of it and acquit them.

The State is required to prove all of the material allega­
tions in this indictment as in all criminal cases and to prove 
them to your minds beyond a reasonable doubt, and if the 
jury should entertain a reasonable doubt as to any material 
allegations in this indictment, they should give the defendant 
or defendants the benefit of that doubt and acquit them. A 
reasonable doubt, gentlemen of the jury, is not a mere pos-



sible or imaginary doubt, because everything relating 
to human affairs and depending upon moral evidence

61 is open to some possible or imaginary doubt, but it is 
such a doubt as would cause a prudent man to pause or

hesitate in the graver transactions of life, and a juror is sat­
isfied beyond a reasonable doubt if from a fair and candid 
consideration of all the evidence he had an abiding convic­
tion of the truth of the charge. ;

The defendants in this case, as in all others of a crimi­
nal nature, where a person is charged with a criminal offense, 
is presumed to be innocent, and that' presumption attends 
and protects him until such time as it is overcome by legal 
and competent evidence upon the part of the State. The fact 
that an indictment has been returned against these defend­
ants should not be considered by you in determining their 
guilt or innocence; they are presumed to be innocent of the 
crime of which they are charged until each and every mater­
ial allegation in the indictment is establishment to the minds 
of each and every member of the jury beyond a reasonable 
doubt. ’ ’

To which oral instruction, given to the jury by the court, 
defendant, at the time, duly excepted and caused his excep­
tions to be noted of record.

These were all the instructions in the case.

62 Thereupon, the jury retired to consider of its ver­
dict and presently returned into open court the follow­

ing verdict.
Verdict.

We, the jury, find the defendants, Frank Moore, Ed. 
Hicks, J. E. Knox, Ed. Coleman, Paul Hall guilty of murder 
in the first degree as charged in the indictment.

JNO. P. MILES,
Foreman.

To which verdict of the jury counsel for defendants, at 
the time, duly excepted and caused their exceptions to be 
noted of record.

Thereupon, counsel for defendants, in due time, presented 
to the court a motion for a new trial, which said motion is in 
the following words and figures, to-wit:

64 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

63 Order.

Now on this the 20th day of December, 1919, the above



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 6 5

and foregoing motion for a new trial coming on to be heard 
before the Court and being presented to the Court, after argu­
ment of counsel, and the Court being fully advised in the 
premises, and after due consideration of the same, the court 
doth overrule and deny said motion for a new trial; to which 
ruling and action of the Court in overruling and denying said 
motion for a new trial, the defendant, at the time, duly 
excepted and caused their exceptions to be noted of record.

Thereupon, the defendants prayed an appeal from the 
judgment and order of the Phillips Circuit Court to the Su­
preme Court of Arkansas, which said prayed for an appeal 
was by the Court granted, and time being asked, 60 days was
by the Court granted from and after November__1919 to the
defendants within which to prepare, tender and file their bill 
of exceptions herein.

64 Certificate.

Now on this day comes the defendants, by their attor­
neys, Murphy and McHaney and Scipio Jones, and presents 
to the Court this their bill of exceptions herein, and the same 
upon examination by the court, being found to contain all 
the evidence introduced, heard or submitted; all exhibits in­
troduced in testimony and offered in testimony and refused; 
all objections and exceptions to testimony, all instructions 
asked, given, modified and given and refused; the motion for 
a new trial and the Court’s order overruling the same; and 
to contain all proceedings had and done in said cause, and to 
be in all things correct, the same is by the court approved 
and ordered filed as a part of the record in this cause.

Given under my hand this the 30th day of December 1919.

JIMASON M. JACKSON,
Judge of the First Judicial

Circuit of Arkansas.

65 Court met pursuant to adjournment Monday morn­
ing at nine o ’clock a. m. November 3rd 1919.

There was present and Presiding the Hon. J. M. Jackson, 
Judge of said Court, A. G. Burke, Clerk and F. F. Kitchens, 
Sheriff, when after due proclamation by the Sheriff Court 
was opened when the following proceedings were had to-wit:



6 6 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

State of Arkansas,

vs.

Prank Moore, E d. H icks, J. E . K nox, E d. Coleman and Paul
H all.

Murder in the 1st Degree.

Now on this day comes the State of Arkansas by its Pros­
ecuting Attorney Jno. E. Miller, Esq., and the defendants in 
person and by attorneys John I. Moore, and Greenfield 
Quarles, Esquires, the defendants having been arraigned 
plead not guilty, whereupon come Jno. P. Wiles, W. C. Gard­
ner, J. L. Shenep, F. Murry, Arthur Miller, Walter Sanders, 
Harry Ball, A. Friberg, J. D. Clatworthy, John King, Tully 
Horner and M. Neely, twelve good and lawful jurors who 
having been duly sworn and examined were impaneled to try 
the issues in this cause, when after having heard the evidence, 
the instructions of the court and argument of counsel, retired 
to consider of their verdict, when after a short deliberation, 
returned into court with the following verdict.

“ We, the jury find the defendants Frank Moore, Ed. 
Hicks, J. E. Knox, Ed. Coleman and Paul Hall, guilty of 
murder in the first degree as charged in the indictment.”

(Signed.) JNO. P. MILES,
Foreman.

It is therefore considered, ordered and adjudged by the 
court that the defendants Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman and Paul Hall are guilty of murder in 
the first degree.

Circuit Court Record “ U ” , page 79, November 3rd 1919.

66 Court met pursuant to adjournment Tuesday morn­
ing at nine o ’clock a. m. Nov. 11, 1919. There was pres­

ent and presiding the Hon. J. M. Jackson, Judge of 
said Court, A. G. Burke, Clerk and F. F. Kitchens, Sheriff, 
when after due proclamation by the Sheriff, Court was opened 
when the following proceedings were had to-wit:



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 6 7

4495

State of A rkansas,

vs.

Frank Moore, E d. H icks, J. E . K nox, E d. Coleman and Paul
H all.

Murder in the 1st Degree.

Now on this day the defendants were brought into Court 
and no legal cause being shown why sentence of the court 
should not be pronounced against them; It is therefore con­
sidered, ordered and adjudged by the Court that the defend­
ants Frank Moore, Ed. Hicks, J. E. Knox, Ed. Coleman and 
Paul Hall, be delivered to the keeper of the Penitentiary of 
the State of Arkansas, who shall keep said defendants until 
the 27th day of December, 1919, when between the hours of 
sun rise and sun set, said defendants are to be electrocuted 
until dead, dead, dead.

Circuit Court Record “ U ” , page 109; Nov. 11, 1919.

67 Motion for New Trial.

Defendants, Frank Moore, Ed. Hicks, J. E. Knox, Ed. 
Coleman and Paul Hall, jointly and severally move and pray 
the court to set aside the verdict of the jury herein and grant 
them and give to them a new trial herein for the following 
reasons:

1.

They are all Negroes, of the African race, and were at the 
time of the trial, and for a long time previous thereto had 
been citizens of the United States and of the State of Arkan­
sas, and residents of Phillips County; that the deceased, Clin­
ton Lee, whom the defendants are charged by the indictments 
with murdering, was killed on the 1st of October, 1919, by 
some person unknown to the defendants in a deadly conflict 
following a disturbance between the White and black races 
of said County on the night previous, for which they were in 
no way responsible; that the excitement of the white resi­
dents and citizens of said County was intense, and their feel­
ings against the blacks, including the defendants, bitter, 
active and persistent; that in the course of it, some four or



6 8 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

five white men and a large number of negroes were killed, 
from 50 to 60; that on or about said 1st day of October, 1919, 
defendants were, along with many other negroes, two hun­
dred or more, taken into custody by said whites, carried to 
the County jail and there kept in close custody and confine­
ment until they were indicted and put upon trial; that at the 
time of the returning of the indicment and of said trial, said 
excitement and bitterness of feeling among the Whites of 
said County against the negroes, especially against defend­
ants, was unabated, still at the height of intensity; that this 
feeling among the whites was co-extensive with the County;

that during their confinement they were frequently
68 subjected to torture for the purpose of extracting 

from them admissions of guilt, as others then also
in custody, to force them to testify against defendants; that 
they were given no opportunity to consult with friends or to 
seek assistance for defense or relief nor were they even in­
formed of the charge against them until after their indict­
ment; that while they were thus confined several hundred 
white men of said County assembled at or near the Court 
House and jail for the purpose of mobbing them, and were 
only prevented from doing so as defendants are informed and 
believe, by the presence of the U. S. soldiers; that the indict­
ment was returned on the 29th day of October by the grand 
jury composed wholly of white men; that on the 30th day of 
the same month subpoenaes for the State’s witnesses were 
issued, to appear and testify in their case on the 3rd of 
November following; that on said 3rd of November, without 
ever having been permitted to see or talk with an attorney 
or any other person in reference to their defense, they were 
carried from the jail into the Court Room and put on trial the 
court appointing an attorney for them, before a jury com­
posed wholly of white men; that the excitement and feeling 
against the defendants among the whites of said County was 
such that it was impossible to obtain any unprejudiced jury 
of white men to try them and that no white jury being fairly 
disposed, would have had the courage to acquit them; that 
the trial proceeded without consultation on their part with 
any attorney, without any witnesses in their behalf and with­
out an opportunity on their part to obtain witnesses or pre­

pare for defense; that no evidence was offered in
69 their behalf; that they had no knowledge or familiar­

ity with court procedure, had never been at a trial
in court before and had no definite idea of their rights therein 
and no conception of what steps should be taken for their pro­
tection; that the whole course of the trial, from beginning to



end, occupied about three fourths of an hour; that the jury 
after hearing the State’s evidence and the Court’s charge 
retired and returned immediately, that is, within about from 
three to six minutes, with a verdict of guilty against the 
defendants.

Defendants, Ed. Hicks, J. E. Knox, Ed. Coleman and 
Paul Hall further say, that no copy of the indictment was 
ever served upon them, nor upon any attorney for them, and 
defendant Frank Moore says that a copy of said indictment 
was delivered to him on the day preceeding the trial but not 
48 hours before the trial; and they all say that they never 
consented to waive such service nor requested nor consented 
to the trial without the same. Defendants, therefore, say 
that they were convicted and sentenced to death without due 
process of law.

FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 69

2.

That under the law as it has existed for many years, the 
Circuit Courts of the State, at each Term, appoint jury Com­
missioners to select grand and petit jurors to serve at the 
succeeding term, and for more than thirty years it has been 
the unbroken practice of said courts to appoint only white 
men on such commissions, and of such commissioners to select 
only white men for grand and petit jurors for the succeeding 
terms,—constituting a discrimination, in the administration of 
the law against the negroes on account of their color and of 

their being members of the African race; and that 
70 if in the course of the court’s proceedings, it became 

or becomes necessary to issue a venire for talismen, 
to the sheriff, the unvariable course is, and has been, to sum­
mon only white men; this practice with reference to the selec­
tion of grand and petit jurors and the summoning of talismen 
prevails and has prevailed in the Circuit Court of Phillips 
County with unbroken uniformity to the extent that no negro 
has been appointed a jury commissioner, or selected to serve 
as a juror, either grand or petit, for more than thirty years, 
and that no negro has been appointed to or has sat upon any 
jury in said court at any time during such period; that the 
Negro population of said County exceeds the white population 
at least five to one and that among them are a great many 
men possessed of intellectual, moral and legal qualifications 
for jury commissioners and for Grand and petit jurors, and 
that they are excluded therefrom solely on account of their 
race and color; that the defendants have thus been by said 
discriminating practices and by said trial, deprived of their



7 0 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

rights under the Constitution of the United States, and especi­
ally the 14th Amendment thereto, and were, in and by said 
trial and proceedings, and still are, denied the equal protec­
tion of the law.

Defendants further say that while it is true, as they are 
now advised, that the proper and regular place and time to 
have objected to the grand jury, and to the indictment re­
turned by it, would have been before the trial, yet as before 
stated, they knew nothing about such proceedings or the 
proper order thereof, and were given no opportunity to object 
to the grand jury or any member thereof and knew nothing 

of their right to raise any objection to either grand 
71 or petit jury, and nothing about how to challenge or 

to object to either of them and were not advised in 
that regard; and that they, therefore, feel that their objec­
tion, taken at this time should prevail to the extent of secur­
ing them a new trial.

Third.

That the verdict is contrary to the law and the evidence 
and is not supported by sufficient evidence. Defendants say 
that for the purpose of proving the statements in the first 
and second grounds of this motion, they have ascertained the 
names of the jury commissioners at the various terms of this 
Court from 1905 to 1919, inclusive, beginning with:

Jas. A. Tappan, S. A. Wooten, S. C. Moore, W. A. Short, 
Lee Pendergrass, A. N. Tanner, M. A. Short, E. S. Ready,
R. E. Chew, James Clopton, G. H. Friberg, Albert Tanner, 
J. I. McRee, W. A. College, H. W. Mosby, R. E. Chew, Jr., 
T. J. Tanner, B. L. Lyford, Asron Meyers, Amos Jarman, 
H. C. Coolege, Ben Lyford, Sam Solomon, W. W. Richardson, 
Jos. Mays, Dade Moore, Gray King, Oscar Reyburn, H. D. 
Moore, J. D. Mays, W. M. Straub, J. N. Ware, Jas. R. Lanier,
B. J. Cunningham, Louis Solomon, R. L. Lyford, Hugo Mundt,
C. P. Sanders, J. M. Hudson, B. F. Davidson, E. C. Hornor, 
E. J. Landon, E. N. Allen, B. J. Cunningham, J. L. Solomon,
C. L. Moore, Jr., W. M. Richardson, Greenfield Quarles, S. L. 
Mundt, Morris Hanft, Jos. C. Meyers, Wellford White and
D. T. Hargraves; also A. C. Burke and J. R. Rush who have 
served as clerk of this court for many years in succession;
also Henry Jones,_______Jackson, E. C. Morris, Henry Avan,
R. B. Campbell and J. S. Drew,—now pray that they may

be summoned to testify on the hearing of this 
72 motion, and that they may be permitted to prove 

said statements.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 7 1

Fourth.

Because the court erred in rendering judgment and sent­
ences against the defendants.

Defendants further pray that the verdict and judgment 
herein against them be set aside and that they be granted a 
fair and impartial trial.

MURPHY & McHANEY and 
SCIPIO JONES,

Attorneys for* Defendants.

We and each of us state that the matters and things here­
in stated are true and correct to the best of our knowledge 
and belief.

his
ED. COLEMAN. X  

mark 
his

ED. X  HICKS, 
mark

his
PAUL HALL. X

mark
FRANK MOORE.
J. E. KNOX.

Subscribed and sworn to before me this the 18th day of 
December, 1919.

MARTIN L. BARNETT,
[ seal .] Notary Public.

C. E. Mch. 20, 1923.

Endorsed: Filed Dec. 20, 1919. A. G. Burke, Clerk.

73 Alf B a n k s , Jr., being first duly sworn on his oath 
says:

I am a negro. I was living in Phillips County, Arkan­
sas, up to the 1st of October, 1919, when I was arrested and 
thereafter kept in custody, until after I was sentenced to 
death, on a charge of murdering W. A. Adkins. I was then 
sent to the State Penitentiary for execution and am now in 
the custody of the keeper of the Penitentiary. I was never 
told of the charge against me, until I was indicted. I was put 
in the County jail at Helena and kept there in close confine­



72 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

ment, with no opportunity to see or confer with anyone about 
my defense. A large number of negroes, a hundred or more 
were held in custody there with me during all that time. I 
was frequently whipped with great severity, and was also put 
into an electric chair and shocked, and strangling drugs would 
be put to my nose to make me tell things against others, that 
they had killed or shot at some of the white people and to 
force me to testify against them. I had not seen anything of 
the kind, and so told them, at first; but they kept on, and 
tortured me so that I finally told them falsely that what they 
wanted me to say was true and that I would tesify to it. 
They would have me blindfolded when torturing me. Once 
they took me up stairs, put a rope around my neck, having 
me blindfolded, pulled on the rope, and one of them said, 
“ Don’t knock the trick out yet, we can make him tell,”  or 
words to that effect. That feeling that they would kill him, he 
agreed to tell what they wanted him to. That they would go 
over it and tell him that he knew that was so, and that he 
had to tell it. During the trials, at one or two of them, they 
took me from the jail to the Court-room to testify against 
them; I think it was the trial of Joe Fox and Albert Giles, 
and I think also against one or two others. As they were 
taking me to the court room, they told me if I changed my 

testimony or did not testify as I had said, when they 
74 took me back, they would skin me alive. I testified as 

I had told them in the same way they had made me tell, 
as near as I could. It was not true; it was false. This whip­
ping and torturing was known generally among the negroes 
there in custody, and it was known what it was for, to make 
testify. I know that they so whipped and tortured a great 
many of them. But cannot say that they whipped them quite 
all. The- used negroes they had in or about the jail to do 
most of the whipping, but some white men would be present. 
One of the Negroes who did part of the torturing was Kid 
Collins, who seemed to be a trustee about the jail. Many of 
the scars from this torturing are still upon my body. I would 
never have testified falsely as I did if I had not been made 
to do it.

his
ALF X BANKS, 

mark
Witness to mark:

J. R. BOOKER.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 7 3

Subscribed and sworn to before me this the 18th day of 
December, 1919.

J. R. BOOKER,
[seal.] Notary Public.

My commission expires Jan. 31st, 1923.

Endorsed: Filed December 20th, 1919. A. G. Burke, Clerk.

75 W illiam W ordlow, being duly sworn on oath states:

I am now in the custody of the keeper of the Arkansas 
State Penitentiary, under sentence of death, on the charge of 
murdering W. A. Adkins. I was taken in custody by white 
men on or about the 1st of October, last, and was held in cus­
tody until sometime in November following when I was sent­
enced. I was kept in close confinement in the jail at Helena, 
and was not told of the charges against me until after or 
about the time I was indicted. There were a great many 
negroes, more than a hundred in the same jail with me. I was 
not permitted to see my friends, talk with them, or do any­
thing towards preparing my defense. While in custody there, 
I was frequently taken from the cell, blindfolded, whipped 
and tortured to make me tell things I did not know, and fur­
nish false information, and testify against other of the ne­
groes. They whipped and tortured all or nearly all of the 
negroes in the same manner and for the same purpose. They 
would usually have negroes, either other prisoners or trustees 
about the jail, to actually do the whipping and torturing, 
though some white men would be present. One of the negroes 
they thus used, was Kid Collins, and I think another one was 
named Dalzell. I did not learn and did not know any of the 
ether names. All of the other negroes knew of this whipping 
and torturing and the purpose of it, and most, if not all of 
them, were treated in the same way. They, the officers would 
tell me that I knew things that I did not know, and that I 
aad to tell it or they would kill me. To escape from the tor­
ture, I finally said what they wanted me to say. When they 
would take us before the grand jury, if we did not testify as 
they wanted us to, we would be taken out and tortured again, 
and I have many of the scars still on mv bodv, which can be 
seen by anybody who desires to see them.' I was taken 

from the jail up into the court room to testify against
76 Ed. Ware, about the killing of W. A. Adkins, and other 

matters, and probably against one or two others. T
was bothered and so overcome that I cannot recollect with



74 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

certainty. I know that I testified against Ware and that 
what I so testified, was not true, it was false, and I would— 
have so testified, if I had not been forced to. All that I said 
against him or against any one else, was forced. I do not 
know of any negro who killed or advised or encouraged the 
killing of either Mr. Adkins, Mr. Lee, Mr. Tappan or any one 
else, and would not have voluntarily testified that I did. As 
I was taken to the court-room, I was given to understand that 
if I did not testify as they had directed, I would be killed.

his
WILLIAM X  WORDLOW. 

mark
Witness to mark:

J. R. BOOKER.

Subscribed and sworn to before me this the 18th day of 
December, 1919.

[ s e a l .]  J. R. BOOKER,
Notary Public.

My commission expires Jan. 31st, 1923.

Endorsed: Filed Dec. 20, 1919. A. G. Burke, Clerk.

4495.

State of A rkansas,

vs.

Frank Moore, Ed. H icks, J. E. K nox, Ed. Coleman and Paul
H all.

Murder in the 1st Degree.

Now on this day comes the defendants by attorneys 
Murphy & McHaney and Scipio Jones, Esq., and by leave of 
the court file motion for a new trial in this cause, which said 
motion coming on to be heard and the court being well and 
sufficiently advised as to what order to render herein doth 
overrule said motion, to which action of the court in overrul­
ing said motion the defendant- at the time excepted and asked 
that their exceptions be noted of record which was done, and 
defendants prayed an appeal to the Supreme Court of Arkan­
sas, which was granted, and defendants are allowed 60 days 
within which to prepare and file their bill of exceptions.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 75

Circuit Court Record “ U,”  page 122 December 20, 
1919.

78 Certificate.
State of A rkansas,

County of Phillips:

I, A. G. Burke, Clerk of the Circuit Court in and for the 
County and State aforesaid, do hereby certify that the fore­
going 70 pages of typewritting contain true and perfect copy 
transcribed from the records and proceedings had in the Cir­
cuit Court of said County, in the cause therein stated, and I 
do so certify.

In testimony whereof, I have hereunto set my hand and 
seal of office, at Helena, Arkansas, this the 8th day of Janu­
ary, A. D. 1920.

[l.s.] A. G. BURKE,
Circuit Clerk, 

By L. E. BERARD,
D. C.

Endorsements: No. 2416. Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman and Paul Hall vs. The State of Arkansas. 
Phillips, J. M. Jackson, J. Transcript. Filed January 9,
1920. W. P. Sadler, Clerk. By C. R. Stevinson, D. C.

79 State of Arkansas,
In the Supreme Court, ss:

Be it remembered, that at a term of the Supreme Court 
of the State of Arkansas, begun and held on the 24th day, 
being the fourth Monday of November, A. D. 1919, at the 
Courthouse, in the City of Little Rock, the following proceed­
ings were had, to-wit: On the 22nd day of March, 1920, a
day of said term:

No. 2416.

Frank Moore, Ed. H icks, J. E. K nox, Ed. Coleman and Paul
Hall, Appellants,

v.

T he State of A rkansas, Appellee. 

Appeal from Phillips Circuit Court.

This cause being regularly called, come the parties



7 6 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

thereto by their attorneys, and said cause is submitted upon 
the transcript of the record, the briefs filed and upon oral 
argument, and is by the court taken under advisement.

80 November Term, 1919.

(Caption Omitted.)

March 29, 1920.

This cause came on to be heard upon the transcript of the 
record of the circuit court of Phillips county, and was argued 
by counsel, on consideration whereof it is the opinion of the 
Court that there is no error in the proceedings and judgment 
of said circuit court in this cause.

It is therefore considered by the Court that the judgment 
of said circuit court in this cause rendered be, and the same 
is hereby, in all things, affirmed with costs.

It is further considered that said appellee recover of said 
appellants all her costs in this court in this cause expended 
and have execution thereof.
81 In the Supreme Court of Arkansas, March 29, 1920.

No. 293.

H icks

v.

State of A rkansas, 

Moore et al.

v.

State of A rkansas, 

Opinion.

Smith , </.:

Appellant Frank Hicks was indicted for murder in the 
first degree, alleged to have been committed by shooting one 
Clinton Lee, and at his trial was convicted of that crime. Ap­
pellants Frank Moore, Ed. Hicks, J. E. Knox, Ed. Coleman, and 
Paul Hall, were indicted for the same crime, and were tried



together, and were all convicted of murder in the first degree. 
Appeals have been perfected from both judgments, and as the 
questions raised are substantially the same in each case we 
dispose of both with one opinion.

It is insisted as ground for reversal in each case that 
appellants, who are all men of color, were discriminated 
against on that account, in that no colored man sat, or was 
summoned to serve, upon either the grand jury which returned 
the indictments or upon the petit juries which tried the cases, 
and that no colored man had served on any jury in Phillips 
county—where the trials occurred—for many years. This 
assignment of error is answered by saying that the question 
was first raised in the motion for a new trial, and it, there­
fore, comes too late to be now considered. Tillman v. State, 
121 Ark. 322; Eastling v. State, 69 Ark. 189.

It is also insisted on behalf of all the appellants that
82 the verdicts are contrary to the law and the evidence, 

and are not supported by sufficient evidence, and that
the trials occurred under such circumstances as that appel­
lants have been convicted without due process of law. The 
facts upon which these contentions are chiefly made were not 
developed at the trial but are brought into the record by affi­
davits filed in support of the motions for new trials.

Discussing these questions together, it may be said that 
appellants, together with many other men of their own race, 
were members of an organization known as the Farmers Pro­
gressive Household Union of America. According to the affi­
davits filed in support of the motions for new trials, this was 
a fraternal and social organization, organized for the lawful 
purpose of promoting the financial interests of its members; 
that it met in secret, excluding all persons except those who 
had been properly initiated, but according to the testimony 
on behalf of the State members were told upon their initiation 
to expect and prepare for trouble with the white people. 
Members went armed to the meetings, and armed pickets were 
placed about the church in which the meetings were held to 
prevent persons not members, fortified with the password, 
from approaching the building. While one of these meetings 
was in progress an automobile containing three white men 
passed along the public road near this building, and stopped 
some forty or fifty yards from it, whereupon the pickets fired 
into the car and killed one of the men in it.

At the trials from which these appeals come the fol-
83 lowing facts were developed. Early in the morning 

after the killing of the man in the car a number of the
lodge members, probably as many as fifty, including appel­

FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 7 7



7 8 FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS.

lants, assembled at or about the houses of appellants Moore, 
Hall and Coleman, about a mile from Elaine and Hoop Spur, 
where the shooting of the night before had occurred. All, or 
practically all, of the members were armed, and appellant 
Moore made the statement that they would kill the white peo­
ple who came there. All of this is admitted, but it is ex­
plained that the members had gathered only to resist an 
attack being made on themselves and that they intended to 
kill the white men whom they expected to come only to pre­
vent the white men from killing them.

Sometime between 11 a. m. and 1 p. m. firing near Elaine 
or Hoop Spur was heard, whereupon appellants, with a num­
ber of others, fell into line, and proceeded to march toward 
Elaine, Moore having said, as they fell into line, that some of 
their members were being attacked and that they would go 
and help them fight. As they marched along by twos and 
fours they crossed a railroad, and, as they did so, they ob­
served, at the home of one McCoy, a white man, about a quar­
ter of a mile away, a number of white men standing in the 
road at McCoy’s house or seated in the cars which had 
stopped there on the road-side. When they observed the 
white men appellant Frank Hicks said he would shoot at 
them. He knelt, took aim and fired two shots, one of which 
struck Clinton Lee, who died just after he was carried into 
McCoy’s house. These shots were fired from a high-powered 
rifle, and at such distance away that some of the white men 

standing near Lee stated that they did not hear the 
84 report of the gun which killed him. This party of 

white men consisted of officers who had come to Elaine 
to effect the arrest of the men who had killed the man in the 
automobile the night before. There was testimony to the 
effect that when Hicks said he would shoot a member of his 
party told him not to do so, but no one made any attempt to 
restrain him. After this shooting the party dispersed, and 
during the excitement of the next few days two other white 
men were killed and a number of negroes.

It is now insisted that because of the incidents developed 
at the trial and those recited in the motions for new trials, 
and the excitement and feeling growing out of them, that no 
fair trial was had, or could have been had, and that the trial 
did not, therefore, constitute due process of law.

It is admitted, however, that eminent counsel was ap­
pointed to defend appellants, and no attempt is made to show 
that a fair and impartial trial was not had, except as an infer­
ence from the facts stated above, the insistence being that a 
fair trial was impossible under the circumstances stated.



FRANK MOORE ET AL.. VS. THE .STATE OF. ARKANSAS.. 7 9

We are unable, however, to say that this must necessarily 
have been the case. The trials were had according to the law., 
the jury was correctly charged as to the law of the case, and 
the testimony is legally sufficient to support the verdicts re­
turned. We cannot, therefore, in the face of this affirmative 
showing, assume that the trial was an empty ceremony, con­
ducted for the purpose only of appearing to comply with 

the requirements of the law, when they were not in
85 fact being complied with.

As to the appellants Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman, and Paul Hall, it is insisted that the testi­
mony does not sufficiently connect them with the act of Frank 
Hicks in firing the fatal shot to make them criminally respon­
sible for that act. The law of the subject was properly de­
clared, and we think the testimony of the numerous witnesses 
who were examined and cross-examined at the trial supports 
the finding that those appellants were present when Frank 
Hicks killed Clinton Lee, and that they aided, abetted and 
assisted him in doing so, and if this is true they are as guilty 
as Hicks himself. According to these witnesses those appel­
lants were all armed, and before leaving the place from which 
they started the purpose of going to Elaine to fight the white 
men found there was announced, and we think this testimony 
warranted the jury in finding that Hicks’ act in firing the 
fatal shot was done pursuant to a conspiracy previously 
formed, which contemplated violence, and the possible killing 
of white men.

In the case of appellant Frank Hicks it is insisted that 
the judgment must be reversed because of the defective ver­
dict. The verdict as found in the bill of exceptions was orig­
inally written in typewriting as follows: “ We, the jury, find 
the defendant, Frank Hicks, guilty as charged in the indict­
ment.”  Over this verdict has been interlined between the 

words “ guilty”  and “ as” , the following words: “ of
86 murder in the first degree,”  so that the verdict as inter­

lined reads: “ We, the jury, find the defendant, Frank
Hicks, guilty of murder in the first degree as charged in the 
indictment.”  On the margin of the page of the transcript on 
which this verdict appears is the following certificate made 
and signed by the trial judge. “ The interlineation made in 
this verdict was made before I signed the bill of exceptions, 
and correctly shows the verdict as it was returned by the 
jury. J. M.'Jackson, Circuit Judge.”  The judgment of the 
court also sets out in full the verdict returned, and the verdict 
as it is there recorded conforms to the certificate of the trial 
judge set out above.



8 0 FRANK MOORE ET AL. VS. THE STATE OP ARKANSAS.

It is true that in the cases of Johnson v. State, 84 Ark. 
95, and Hobbs v. State, 86 Ark. 360, and Bridger v. State, 122 
Ark. 391, we ignored as unauthorized certain interlineations 
made with a lead pencil for the reason, there stated, that the 
interlineations were unexplained and unauthenticated and 
apparently made without authority. But it has not been de­
cided that this court will necessarily ignore interlineations 
appearing in a bill of exceptions or a transcript. Upon the 
contrary, interlineations may be a proper part of the record, 
and will be so treated by us unless it appears such interline­
ations were not properly authorized. Here we have the certifi­
cate of the trial judge saying that the interlineation was 
made before he had approved or signed the bill of exceptions, 
and, in addition, we have in the judgment proper a record of 
the verdict which shows it to be in proper form.

We have given these cases the careful consideration
87 which their importance require, but our consideration 

is necessarily limited to those matters which are prop­
erly brought before us for review, and as no error has been 
made to appear in either case the judgments must be affirmed. 
It is so ordered.

88 November Term, 1919.
(Caption Omitted.)

April 19, 1920.
The appellants having filed a petition for rehearing 

within the time allowed by law, and duly served the same, it 
is now submitted and by the Court taken under advisement.

89 In the Supreme Court of Arkansas.
No. 2416.

F rank Moore, Ed. Hicks, J. E. K nox, Ed. Coleman and Paul
Hall, Appellants,

vs.
T he State of A rkansas, Appellee.

Petition for Rehearing.
Appellants respectfully pray the Court to grant them a 

rehearing herein, and says:
1. That the Court is in error in its conclusion that their 

claim that the selection and organization of the grand jury, 
which returned the indictment against them and the petit 
jury that convicted them, composed wholly of white men, was



FEANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 8 1

a discrimination on account of their color,—assigned as a 
ground of the motion for a new trial, comes too late to be 
considered.

Under the rules of practice in this state, as previously 
announced by this Court, they could have raised the question 
as to the grand jury at no earlier stage of the proceeding, 
haying been denied all opportunity to be present or make 
objection to such grand jury or any of its members, at the 
time of its organization.

2. The Court is in error in its conclusion that the fact 
that the “ Farmers Progressive Household Union of America,”  
was according to the affidavits filed in support of the motion for

a new trial, a fraternal and social organization, organ-
90 ized for the lawful purpose of promoting the financial 

interests of its members, who were admonished, on
their initiation, that attempts had been made to break up the 
lodge by white people, and to expect and prepare for trouble 
with the white people.

All this occurred in the evidence of witnesses for the 
State, members of the organization,—not one word of it or 
about it either in the motion for a new trial or in any affi­
davit in support of it.

3. The Court is in error in concluding and holding that 
appellants’ insistence “ that because of the incidents devel­
oped at the trial and those recited in the motion for a new 
trial, and the excitement and feeling growing out of them, 
no fair trial was had, or could have been had, and that the 
trial did not, therefore, constitute due process of law,”  was 
not necessarily the case.

If the facts were as recited—undisputed facts—it is man­
ifest that appellants were not accorded due process of law, 
and that a fair and impartial trial was not had,—was, under 
the circumstances, impossible.

4. The Court is in error in its conclusion that the trial 
was had according to law, the testimony legally sufficient to 
support the verdict, and that it must necessarily appear that 
due process of law was denied, and “ that the trial was an 
empty ceremony, conducted for the purpose only of appearing 
to comply with the requirements of the law,”  to entitle

appellants to a new trial.
91 Where the circumstances brought out on motion for 

a new trial or elsewhere bring the fairness and imparti­
ality into anything like serious question, the judgment of 
conviction should be reversed. In the language of the appel­



late court in Rutherford v. U. S. 258 Fed., page 863, “ It is not 
enough to justify a conviction that the defendant is guilty. 
He has a right to be tried in accordance with the rules of law. 
The defendants in this case did not have the temperate and 
impartial trial to which they were entitled, and for that rea­
son the judgment is reversed.”

The Court is in error in its apparent conclusion that the 
matters set up in the motion for a new trial are not properly 
brought before it for review, and that the judgment must, 
therefore, be affirmed.

If it be conceded that the matters relating to the grand 
and the petit juries were raised too late, still the other mat­
ters set up in the motion which are undisputed, are not too 
late, if true, demand a reversal, and should be considered. 
Moreover, while • counsel appointed to represent appellants, 
may, with reference to learning and capacity, be justly con­
sidered eminent, they were members of the local bar, domi­
nated by the unfriendly and violent spirit that dominated the 
whole proceeding, and scrutinizing search of the record will 
fail to show any real effort on their part to afford appellants 
any real protection. Has it ever before occurred that a de­

fendant charged with so grave a crime has been denied 
all opportunity to get witnesses, to prepare for defense, 
tried, so to speak, in the midst of a populace excited 

and enraged against him, by a jury whose members were of a 
different race and color from his won, and one of whose mem­
bers he is charged of having murdered could find no relief in 
the appellate court? Such a case will thus go into judicial 
history, if it must retain its present status.

Appellants therefore pray a rehearing be granted them 
herein, and that the judgment against them be reversed.

SCIPIO A. JONES,
MURPHY & McHANEY,

Attorneys for Appellants.

I, 6. W. Murphy, certify that I am one of the Attorneys 
of appellants; that I have carefully examined the foregoing 
petition for rehearing, that the same is not filed or presented 
for delay, and that I believe it to be meritorious and well 
based.

G. W. MURPHY,
Attorney for Appellants.

8 2  FRANK MOORE EX AL. VS., THE STATE OF. ARKANSAS.

Filed April 14, 1920. W. P. Sadler, Clerk.



FRANK MOORE ET AL. VS. THE STATE OF ARKANSAS. 8 3

93 November Term, 1919.

(Caption Omitted.)
April 26, 1920.

Being fully advised, the petition for rehearing, filed herin, 
is by the Court overruled.

94 November Term, 1919.
(Caption Omitted.)

April 26, 1920.

Come the appellants by their attorneys and file a motion 
praying that an order be granted staying the issuance of a 
mandate in this cause, pending appeal to the Supreme Court 
of the United States, and said motion is by the Court taken 
under advisement.

November Term, 1919.
(Caption Omitted.)

May 3, 1920.
Being fully advised, the motion of the appellants for an 

order staying the issuance of a mandate in this cause, is by 
the court overruled.

95 State of A rkansas,
In the Supreme Court, s s :

I, W. P. Sadler, clerk of said court, do hereby certify that 
the foregoing is a true, full and complete transcript of the 
record and proceedings in the case of Frank Moore, Ed. 
Hicks, J. E. Knox, Ed. Coleman, and Paul Hall, Appellants, 
vs. The State of Arkansas, Appellee, and also of the opinion 
of the court rendered therein, as the same now appears on 
file in my office.

In testimony whereof, 1 have hereunto set my hand and 
affixed the seal of said court at my office, in Little Rock, 
Arkansas, this May — , 1920.

[Seal of the Supreme Court of Arkansas.)

W. P. SADLER,
Clerk Supreme Court of Arkamas.

Endorsed: Filed Sept. 21, 1921. Sid. B. Redding, Clerk.
( 1 5 7 9 . )



8 4 FRANK MOORE ET Alu VS. E. H . DEMPSEY, ETC.

Exhibit “ E. ”  

(Copy.)

Hon. Charles H. Brough, November 14th, 1920.
Governor of Arkansas.

Dear Governor:
We, the undersigned memebers of the Committee of 

Seven, appointed by you in the Elaine-Hoop Spur Insurrection 
in this County, earnestly urge you to let the law take its 
course untrammelled by Executive Clemency.

With all the provocation our people refrained from mob 
violence. The reason they did this was that this Committee 
gave our citizens their solemn promise that the law would be 
carried out. This Community can be made a model one so far 
as resorting to mob violence is concerned, but should the Gov­
ernor commute any sentence of these Elaine rioters, this 
Avould be difficult, if not impossible.

We respectfully urge you to support law and order as we 
supported it. There were 150 Negroes legally guilty of 
murder in the first degree—actively present and assisting in 
the wilful and deliberate murder of white citizens—and this 
Committee assisted in seeing that only leaders were brought 
to trial. Leniency has been already shown. We think the 
law itself is on trial.

All of our citizens are of the opinion that the law should 
take its course.

(Signed) S. STRAUSS,
Chairman.

E. M. ALLEN,
T. W. KESSEE,
H. D. MOORE,
H. C. HORNER.

Endorsed: Filed Sept. 21, 1921. Sid B. Redding, Clerk.

E xhibit “ F. ”

H icks
vs.

State.

Opinion Delivered March 29, 1920.

Appeal from Phillips Circuit Court. J. M. Jackson, Judge,
Affirmed.



Scipio A. Jones and Murphy, McHaney for appellants.

1. Appellants were discriminated against on account of their
color and no colored men sat upon the jury or was 
summoned to serve.

2. The verdict is plainly against the evidence. 107 Atl. 554.

3. The verdict is defective.

Defendants are not guaranteed under our Constitution, nor 
that of the United States, a trial by members of his own 
race, but only a fair and impartial — by a jury who are 
unbiased and unprejudiciol without regard to color or 
race. 100 U. S. 322. The panel should have been chal- 
langed, and as he did not, he can not complain that there 
were no Negroes on the jurv. 21 Ark. 212, 5 Id. 444; 
29 Id. 17; 101 Id. 462; 94 Id.' 465.

John D. Arbuckle, Attorney General, and J. B. Webster, 
Assistant, for Appellee, Robert C. Knox, of Counsel.

Smith, J .:

Appellant Prank Hicks was indicted for murder in the 
first degree, alleged to have been committed by shooting one 
Clinton Lee, and at his trial was convicted of that crime. 
Appellants, Prank Moore, Ed. Hicks, J. E. Knox, Ed. Cole­
man and Paul Hall, were indicted for the same crime, and 
were tried together, and were all convicted of murder in the 
first degree. Appeals have been perfected from both judg­
ments, and as the questions raised are substantially the same 
in each case we dispose of both with one opinion.

It is insisted as ground for reversal in each case that ap­
pellants who are all men of color, were discriminated against 
on that account, and that no colored men sat, or was summoned 
to serve, upon either the grand jury which returned the indict­
ments or upon the petit juries which tried the cases, and that 
no colored men had served on any jury in Phillips County— 
where the trials occurred—for many years. This assignment 
of error is answered by saying that the question was first 
raised in the motion for a new trial, and it, therefore, comes 
too late to be considered. Tillman vs. State, 121 Ark. 332; 
Eastling vs. State, 69 Ark. 89.

It is also insisted on behalf of all the appellants that the 
verdicts are contrary to the law and the evidence, and are not

FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. 8 5



supported by sufficient evidence, and that appellants have 
been convicted without due process of law. The facts upon 
which these contentions are chiefly made were not developed 
at the trial, but are brought into the records by affidavits filed 
in support of the motions for new trials.

Discussing these questions together, it may be said that 
appellants, together with many other men of theif own race, 
were members of an organization known as the Farmers’ 
Progressive Household Union of America. According to the 
affidavits filed in support of the motions for new trials, this 
was a fraternal and social organization, organized for the law­
ful purpose of promoting the financial interests of its mem­
bers; it met in secret, excluding all persons except those who 
had been properly initiated, but, according to testimony on 
behalf of the State, members were told upon their initiation 
to expect and prepare for trouble with the white people. Mem­
bers went armed to the meetings, and armed meetings were 
held to prevent persons not members, fortified with the pass­
word, from approaching the building. While one of these 
meetings was in progress, an automobile containing two white 
men and one Negro passed along the public road near this 
building, and stopped some forty or fifty yards from it, where­
upon the pickets fired into the car and killed one of the white 
men in it.

At the trial from which these appeal- come the following 
facts were developed. Early in the morning after the killing 
of the men in the car a number of the lodge members, prob­
ably! as many as fifty, including appellants, assembled at or 
about the houses of Appellants Moore, Hall and Coleman, 
about a mile from Elaine and Hoop Spur, where the shooting 
of the night before occurred. All, or practically all, of the 
memebers were armed, and appellants, Moore made the state­
ment that they would kill the white people who came there. 
All of this is admitted, but it is explained that the members 
had gathered only to resist an attack being made on them­
selves, and that they intended to kill the white men whom they 
expected to come only to prevent the white men killing them.

Sometime between 11 A. M. and 1 P. M. firing near Elaine 
or Hoop Spur was heard, whereupon appellants, with a num­
ber of others, fell in line, and proceeded to march toward 
Elaine, Moore having said as they fell into line, that 
some of their members were being attacked, and that they 
would go and help them fight. As they marched along by 
twos and fours, they crossed a railroad, and, as they did so, 
they observed, at the home of one McCoy, a white man about 
a quarter of a mile away, a number of white men standing in

6 6  FBANK MOOBE ET AL. VS. E. H . DEMPSEY, ETC.



the road at McCoy’s house or seated in the car which had 
stopped there on the roadside. When they observed the white 
men, appellant Frank Hicks said he would shoot at them. He 
knelt, took aim and fired two shots, one of which struck Clin­
ton Lee, who died just after he was carried into McCoy’s 
house. These shots were fired from a high-powered rifle, and 
at such a distance away that some of the white men standing 
near Lee stated that they did not hear the report of the gun 
which killed him. This party of white men consisted of offi­
cers who had come to Elaine to effect the arrest of the men 
who had killed the man in the automobile the night before. 
There was testimony to the effect that when Hicks said he 
would shoot a member of his party told him not to do so, but 
no one made any attempt to restrain him. After this shooting 
the party dispersed, and during the excitement of the next 
few days other white men were killed and a number of 
Negroes.

It is now insisted that because of the incidents developed 
at the trial and those recited in the motion for new trials, and 
the excitement and feeling growing out of them, no fair trial 
was had, or could have been had, and that the trial did not, 
therefore constitute due process of law.

It is, admitted, however, that eminent counsel was ap­
pointed to defend appellants, and no attempt is made to show 
that a fair and impartial trial was not had, except as an infer­
ence from the facts stated above, the insistence being that a 
fair trial was impossible under tire circumstances stated.

We are unable, however, to say that this must necessarily 
have been the case. The trials were had according to law, the 
jury was correctly charged as to the law of the case, and the 
testimony is legally sufficient to support the verdicts returned. 
We cannot, therefore, in the face of this affirmative showing, 
assume that the trial was an empty ceremony, conducted for 
the purpose only of appearing to comply with the require­
ments of the law, when they were not in fact being complied 
with.

As to the appellants, Frank Moore, Ed. Hicks, J. E. Knox, 
Ed. Coleman and Paul Hall, it is insisted that the testimony- 
does not sufficiently connect them with the act of Frank 
Hicks in firing the fatal shot to make them criminally respons­
ible for that act. The law of the subject was properly de­
clared and we think the testimony of the numerous witnesses 
who were examined and cross-examined at the trial supports 
the finding that those appellants were present when Frank 
Hicks killed Clinton Lee, and that they aided, abetted and 
assisted him in doing so, and if this is true they are as guilty

FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. 8 7



as Hicks himself. According to these witnesses, those appel­
lants were all armed, and before leaving the place from which 
they started the purpose of going to Elaine to fight the white 
men found there was announced, and we think this testimony 
warranted the jury in finding that Hick’s act in firing the 
fatal shot was done pursuant to a conspiracy previously 
formed, which contemplated violence, and the possible killing 
of white men.

In the case of appellant Frank Hicks, it is insisted that 
the judgment must be reversed because of the defective ver­
dict. The verdict as found in the bill of exceptions was orig­
inally written in typewriting as follows: “ We, the jury, find 
the defendant, Frank Hicks, guilty as charged in the indict­
ment.”  Over this verdict has been interlined, between the 
words “ guilty and “ as”  the following words: “ of murder in 
the first degree, ’ ’ so that the verdict as interlined reads: 
“ We the jury find the defendant, Frank Hicks, guilty of mur­
der in the first degree as charged in the indictment,”  on the 
margin of the page of the transcript on which this verdict 
appears is the following certificate made and signed by the 
trial judge: “ The interlineations made in this verdict was
made before I signed the bill of exceptions and correctly 
shows the verdict as it was returned by the jury, J. M. Jack- 
son, Circuit Judge.”  The judgment of the court also sets out 
in full the verdict returned, and the verdict as it is there 
recorded conforms to the certificate of the trial judge set out 
above.

It is true that in the cases of Johnson v. State, 84 Ark. 95 
and Hobbs v. State 86 Ark. 360, and Bridger vs. State, 122 
Ark. 391, we ignored as unauthorized certain interlineations 
made with a lead pencil for the reason there stated, that the 
interlineations were explained unauthenticated and apparently 
made without authority. But it has not been decided that this 
court will necessarily ignore interlineations appearing in a bill 
of exceptions or a transcript. Upon the contrary, interlinea­
tions may be a proper part of the record and will be so treated 
by us unless it appears such interlineations were not properly 
authorized. Here we have the certificate of the trial judge 
saying that the interlineations was made before he had ap­
proved or signed the bill of exceptions, and, in addition, we 
have in the judgment proper a record of the verdict' which 
shows it to be in proper form.

We have given these cases the careful consideration which 
their importance required, but our consideration is necessarily 
limited to those matters which are properly brought before us

8 8  FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.



■FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. 8 9

for review, and as no error has been made to appear in eother 
case the judgments must be affirmed. It is so ordered.

Endorsed: Filed Sept. 21, 1921. Sid B. Redding, Clerk.

E xhibit “ G. ”

State of Arkansas,

Executive Department.

Proclamation.

To all to whom these presents shall come, Greetings:

Know ye, that whereas, J. E. Knox, Ed. Coleman, Paul 
Hall, Frank Hicks, Ed. Hicks and Frank Moore, were con­
victed at the November, 1919, Term, of the Phillips County 
Circuit Court of the crime of murder in the first degree, and 
sentenced by said court to death by electrocution, and their 
cases being appealed to the Supreme Court of Arkansas, the 
pendency of which appeal suspended execution beyond the 
date fixed by the said trial court, and said judgments of con­
viction being by said court affirmed, it now becomes my duty 
as Governor of the State of Arkansas, under Section 3262 of 
Crawford and Moses’ Digest of the statutes of Arkansas, to 
fix the date of their execution, and each of them;

Now, therefore, I, Thomas C. McRae, Governor of the 
State of Arkansas, acting in my official capacity, do hereby 
and herein fix the date for the execution of the said J. E. 
Knox, Ed. Coleman, Paul Hall, Frank Hicks, Ed. Hicks and 
Frank Moore, and each of them, to be on Friday, the 10th day 
of June, 1921.

In testimony whereof, I have hereunto set my hand and 
caused to be affixed the Great Seal of State, in the Executive 
Chamber, at Little Rock, Arkansas, on this the twenty-ninth 
day of April, 1921.

[seal] THOMAS C. McRAE,
Governor.

By the Governor:
IRA C. HOPPER,

Secretary of State.



State of Arkansas,

Executive Department.

Proclamation.

To all to whom these presents shall come, Greeting:

Know ye, that whereas, J. E. Knox, Ed. Coleman, Paul 
Hall, Frank Hicks, Ed. Hicks and Frank Moore were convicted 
at the 1919 term of the Phillips County Circuit Court for the 
crime of murder in the first degree, and sentenced by said 
court to death by electrocution, and their cases being appealed 
to the Supreme Court of Arkansas the pendency of which ap­
peal suspended execution beyond the date fixed by said trial 
court, and said judgments of conviction being by said court 
affirmed it became my duty as Governor of the State of Ark­
ansas, under Section 3262 of Crawford & Moses’ Digest of the 
statutes of Arkansas to fix the date of their execution, which 
I did on the 29th day of April, 1921. Before the date set for 
execution the Chancery Court of Pulaski County assumed 
jurisdiction in these cases and issued a restraining order pro­
hibiting said execution. The State Supreme Court was ap­
pealed to by the state for a writ of prohibition ag-inst the 
Chancery Court to prevent said court from assuming juris­
diction. The Supreme Court of Arkansas issued said writ of 
prohibition against the Chancery Court, from which judgment 
there has been no further appeal, and it therefore now be­
comes my duty as Governor of the State of Arkansas, under 
Section 3262 of Crawford and Moses’ Digest of the statutes 
of Arkansas, to fix the date of their execution, and each of 
them.

Now Therefore, 1, Thomas C. McRae, Governor of the 
State of Arkansas, acting in my official capacity, do hereby 
and herein affix the date for the execution of the said J. E. 
Knox, Ed. Coleman, Paul Hall, Frank Hicks, Ed. Hicks and 
Frank Moore, and each of them to be on Friday, the twenty- 
third day of September, 1921.

In Testimony Whereof, I have hereunto set my hand and 
caused to be affixed the Great Seal of State, in the Executive 
Chamber, at Little Rock, Arkansas, on this the twelfth dav of 
August, 1921.

[ seal .] THOMAS C. McRAE,
Governor.

90 FRANK MOORE ET \L. VS. E. H. DEMPSEY, ETC.



9 1

Bv the Governor:
IRA C. HOPPER,

Secretary of St,ate.

FRANK MOORE ET AL. .VS. E. H. DEMPSEY, ETC.

Endorsed: Filed September 21, 1921. Sid B. Redding,
Clerk.

E xhibit “ H .”

Resolution.

It has been brought to the attention of the Richard L. 
Kitchens Post No. 31, American Legion, Helena, Arkansas, 
that the Governor is contemplating commuting the sentence 
of four of the negroes, who are now under death sentences for 
their participation in the Elaine Riot, to lesser sentences, and 
we, the members of this post feel that any action toward this 
end by the Governor, would do more harm in the community 
and breed lawlessness, as well as disregard for constituted 
authority, as at the time of this race riot the members of this 
Post were called upon to go to Hoop Spur and Elaine to pro­
tect life and property, and in compliance with this request, 
there were two American Legion members killed and one seri­
ously injured, besides the other non-members who also 
perished, and when the guilty negroes were apprehended, a 
solemn promise was given by the leading citizens of the com­
munity, that if these guilty parties were not lynched, and let 
the law take its course, that justice would be done and the 
majesty of the law upheld.

The twelve negroes now under sentence of death, but 
whose sentences are suspended — account of court procedure, 
and six of these negro cases have — taken to the Supreme 
Court of the United States, which court declined to review. 
The other six cases, whose original trials were reversed and 
new trials given them, were convicted, and their cases were 
appealed to the Supreme Court of the State and attorneys of 
their own selection were permitted to handle their cases.

Now therefore be it resolved by this Post assembled on 
this the 19th dau of October, 1920, that we most earnestly 
protest against the commutation of aim of the sentences of 
these twelve negroes convicted of murder in the Elaine riot 
of October 1919, their having received a fair trial and—proven 
guilty, and the leniency of the court was shown in the balance 
of the cases tried, these being the ring leaders and guilty mur­
derers, and that law and order will be vindicated and a solemn 
promise kept.



92 FRANK MOORE ET AX.. VS. E. H. DEMPSEY, ETC.

Be it further resolved that a com-ittee of four be ap­
pointed by the Post Commander. This Committee is hereby 
empowered to represent this Post at a conference, or several 
conferences, with the Governor of Arkansas and to take such 
steps as they may deem necessary to carry out the wishes of 
this resolution and leaving nothing undone to have these sen­
tences carried out. This committee to report in full to the 
next meeting of this post.

Passed unanimously 8:30 P. M. October 19, 1920, base­
ment of the Episcopal Church, Helena, Arkansas.

R. H. MOTT,
Post Commander.

EDWIN BUEKS,
Adjutant.

Committee appointed:

Mr. Herbert Thompson, Chairman.
Mr. T. H. Faulkner, Jr.
Mr. J. B. Lambert.
Mr. L. J. Wilkes, Jr.

Endorsed: Filed Sept. 21, 1921. Sid. B. Redding, Clerk.

E xhibit “ I .”

(Copy.)

November 10, 1920.

At a regular meeting of the Helena Rotary Club, held 
this date and attended by seventy five members, representing 
seventy five of the leading industrial and commercial enter­
prises of this City, there was read the resolution which was 
adopted by the Richard L. Kitchens Post, No. 41, American 
Legion, Helena, Arkansas, on the 19th day of October, 1920, 
protesting to the Governor against the commutation of sen­
tences of any of the negroes who have been heretofore con­
victed of participation in the Elaine Insurrection; and by 
unanimous vote of the Helena Rotary Club, it was,

Resolved: That the Helena Rotary Club does hereby give 
its unqualified approval and support of the action and reso­
lution of the Richard L. Kitchens Post No. 41, of the Ameri­
can Legion, and pledges its full co-operation and assistance 
to the accomplishment of the purposes of said resolution, and 
it is also



FRANK MOORE E l  AL. VS. E. H. DEMPSEY, ETC. 9 3

Resolved That a copy of this resolution, officially signed 
by the President and Secretary of the Helena Rotary Club, be 
presented to the Commander of the Richard L. Kitchens Post, 
No. 41, American Legion of Helena, Arkansas.

(Signed) HELENA ROTARY CLUB OF
HELENA, ARKANSAS,

By S. STRAUB,
President.

OZERO C. BREWER,
Secretary.

Endorsed: Filed Sept. 21, 1921. Sid. B. Redding, Clerk.

Exhibit “  J .”

(Copy.)

At a regular meeting of the Lions Club of Helena, held 
this date and attended by sixty members, representing sixty 
of the leading industrial and commercial enterprises of this 
city, there was read the resolution which was adopted by the 
Richard L. Kitchens Post No. 41, American Legion, Helena, 
Arkansas, on the 19th day of October, 1920, protesting to the 
Governor against the commutation or sentences of any of the 
negroes who have been heretofore convicted of participation 
in the Elaine insurrection; and by unanimous vote of the 
Lions Club of Helena, it was

Resolved: That the Lions Club of Helena does hereby 
give its unqualified approval and support of the action and 
resolution of the Richard L. Kitchens Post, No. 41, of the 
American Legion, and pledges its full co-operation and assist­
ance to the accomplishment of the purpose of said resolution. 
And it is also

Resolved: That a copy of this resolution, officially signed 
by the President and Secretary of the Lions Club of Helena, 
be presented to the Commander of the Richard L. Kitchens 
Post, No. 41, American Legion of Helena, Arkansas.

(Signed) LIONS CLUB OF HELENA,
ARKANSAS,
By JOS. C. MAYERS,

President.
SKIPWITH ADAMS,

Secretary.

Endorsed: Filed Sept. 21, 1921. Sid. B. Redding, Clerk.



9 4 FRA2JK MOORE ET AL. VS. E. H. DEMPSEY. ETC.

E xhibit “ K .”

In the Supreme Court of Arkansas, June 20, 1921.

No. 52.

State ex Rel.

v.

M a r t i n e a u , Chancellor. 

Opinion.

McCulloch, C . J.:

Frank Hicks, Frank Moore, Ed. Hicks, J. E. Knox, Ed. 
Coleman and Paul Hall, who had previously been indicted and 
convicted of the crime of murder, and who were being con­
fined in the State Penitentiary awaiting execution of the death 
sentences, filed a petition for habeas corpus in the chancery 
court of Pulaski County, praying that they be discharged 
from custody and from said judgments of conviction. This 
petition was filed and presented to the Chancellor on June 8, 
1921, who immediately ordered the issuance of a writ of 
habeas corpus directed to the keeper of the penitentiary, and 
the Chancellor also ordered the issuance of a writ of injunc­
tion restraining the said keeper from executing the death 
sentences upon said petitioners in accordance with said judg­
ments of conviction and the proclamation of the Governor 
fixing the date of executions. The writs were issued and made 
returnable for hearing before the chancery court at 2 o ’clock P. 
M. on June 10,1921, and E. H. Dempsey, keeper of the peniten­
tiary was made respondent in the proceedings and copies of the 
proceedings and process were served on him and on the Attor­
ney General, who appeared before the Chancellor on behalf of 
the State and the keeper o f the penitentiary and made objec­
tions challenging the jurisdiction of the chancery court.

A petition has been filed here praying for a writ of prohi­
bition to restrain the chancery court from proceeding in the 
matter, alleging that it is not within the jurisdiction of that 
court. The chancery court postponed further hearing on the 
matter unitl a decision of this court could be rendered as to 
the jurisdiction of that court. The petitioners in the proceed­
ing below, as well as the Chancellor, have responded to the 
present petition and the former seek to uphold the jurisdic­



tion of the chancery court. Relators presented the present 
petition to the Justices of the Supreme Court on June 9, 1921, 
for a temporary writ of prohibition pending the presentation 
of the matter to the court in session, but on objection being 
made by respondents to the hearing at that time it was post­
poned to the first session of the court on Monday, June 13, 
1921, and the cause was set down for hearing on that day.

On the outset of the hearing by this court respondents 
were opposed to proceeding at this time on the ground that 
the notice was not given for the length of time required by 
statute. There is a statute regulating the practice on appli­
cations for mandamus and prohibition, which provides that 
ten days’ notice of an application shall be given. Crawford 
& Moses Digest, 6251 and 7023. This statute manifestly ap­
plies only to proceedings of this nature in courts of original 
jurisdiction. It defines a writ of mandamus, treated in the 
chapter, “ as an order of a court of competent and original 
jurisdiction,”  and defines a writ of prohibition as “ an order 
from a circuit court to an inferior court of limited jurisdiction 
prohibiting it from proceeding in a matter out of its jurisdic­
tion.”  Crawford & Moses Digest, Secs. 7021-22. This does 
not apply to proceedings in the Supreme Court where juris­
diction is derived from the Constitution, but there is no stat­
ute regulating the practice. Prairie C. C. M. Co. v. Kittrell, 
107 Ark. 361. This leaves the matter of notice as one to be 
fixed by the rules of this court. This seems to have been the 
thought in the mind of the court in deciding the case of 
Tucker ex parte, 25 Ark. 567, which arose shortly after the 
adoption of the civil code containing the provision referred 
to in regard to notice.- In the opinion it was said following, 
the common law practice, that a writ of prohibition should 
not be “ issued unless an opportunity be offered those sought 
to be prohibted of showing cause against it, ’ ’ but no reference 
was made to the statute requiring notice. There is no estab­
lished rule of this court on the subject and it is a question to 
be determined in each instance whether reasonable notice has 
been given. In the present case we concluded that the notice 
was, under the circumstances, reasonable and the request for 
further postponement was denied. In fact, there was no con­
tention that the notice was unreasonable if we concluded that 
the statute referred to did not apply.

Again it is urged that the remedy should not be awarded 
under the writ of prohibition for the reason that the proper 
objection had not been made to and overruled by the Chan­
cellor to the exercise of jurisdiction. The rule has often been 
recognized in decisions of this court that prohibition is not

FBANK MQOBE ET AL. VS. E. H, DEMPSEY, ETC. 95



available until objection to the wrongful attempt to exercise 
jurisdiction has been raised in the inferior tribunal and over­
ruled; but exceptions to that rule have been found. Reese v. 
Steel, 73 Ark. 66; Monett Road Imp. Dist. vs. Dudley, 144 
Ark. 169.

The state of the matter as presented here is this: The
chancery court has already exercised jurisdiction by issuing 
an injunction staying execution of the judgments in the crim­
inal cases and has set the cause for final hearing. Relators 
made objection to the exercise of jurisdiction, but the chan­
cery court declined to decide either the question of jurisdic­
tion or the merits of the case until after this court determined 
the question of jurisdiction. The Chancery court on June 10, 
postponed the hearing indefinitely until this court decides the 
present case. The effect of the court’s attitude is therefore 
to retain jurisdiction and to further exercise it in due time 
unless prohibited by this court. The case, therefore, falls 
within the exceptions stated in Monett Road Imp. Dist. v. 
Dudley, supra. Relators are now under restraint until the 
writ of injunction issued by the chancery court in the attempt 
to exercise jurisdiction which it is alleged that court did not 
rightfully possess, and the failure of the court on the request 
of the relators to relinquish jurisdiction is tantamount to 
overruling the objection.

This brings us to the consideration of the main question 
in the case, whether or not, upon the allegations of the peti­
tion filed below, the chancery court possessed jurisdiction, 
either by injunction or under the writ of habeas corpus, to 
review the proceedings in which the accused respondents were 
convicted of the crime of murder or to interfere with the 
judgments of conviction. The facts are stated in detail and 
at great length in the petition filed, and include the record 
of the proceedings in which the accused respondents were in­
dicted, tried and convicted, the record of the appeal to this 
court, the judgment of affirmance and the opinion of this 
court, and also the record of the application to the Supreme 
Court of the United States for a writ of certiorari to review 
the proceedings.

The accused respondents were indicted by the grand jury 
of Phillips County of the crime of murder in the first degree, 
alleged to have been committed by shooting one Clinton Lee. 
It is charged in the indictment and was proved at the trial 
that the killing of Lee occurred on October 20, 1919, and on 
the 3rd day of November, 1919, the trials occurred. Frank 
Hicks was tried separately and the other five were tried to­
gether, and each trial resulted in a conviction of murder in

96 PRANK MOORE ET AL. VS. E. H. DEMPSET, ETC.



FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. 9 7

the first degree. When the accused were brought into court 
and arraigned they had no attorney to represent them and 
the court appointed counsel, certain members of the Phillips 
County bar who represented the accused throughout the trials. 
There were no exceptions saved during the progress of the 
trials, but the records show that counsel for the accused cross- 
examined all of the State’s witnesses at length. Before the 
final adjournment of the circuit court for the term and within 
the time allowed by law the accused or their friends employed 
to represent them the counsel who now appear in their behalf 
in the present proceedings, and they filed a motion for a new 
trial, supported by affidavits, which was heard by the court 
and overruled on December 18, 1919. The motion set forth, as 
grounds therefor, that the verdict was contrary to the law and 
the evidence and that the court erred in rendering judgment 
upon the verdict. The motion also set forth at considerable 
length and in detail the circumstances surrounding the ac­
cused at the time of the killing of Clinton Lee and from then 
up to and throughout the trials of the causes, stating among 
other things that “ at the time of the returning of said indict­
ment and trial said excitement and bitterness of feeling among 
the whites of said county against the negroes, especially 
against the defendants, was unabated and still at the height 
of intensity.”  It alleged, in substance, that the trials of the 
accused occurred during a period of great excitement; that 
the accused were given no opportunity to consult with friends 
or to employ counsel and while they were confined awaiting a 
trial a mob composed of several hundred armed white men 
surrounded the jail and courthouse and that the excitement 
and feeling against the accused among the white people of 
the county was such that it was impossible to obtain an im­
partial jury. The substance of the ground thus pleaded was 
that they had not been given fair trial on account of the 
alleged domination of a mob over the court and jury. Upon 
overruling the motion for new trial the circuit court allowed 
the accused sixty days within which to prepare and file a bill 
of exceptions which was filed within the time allowed and an 
appeal was duly prosecuted to this court and after arguments 
the case was decided by this court affirming the judgment of 
conviction. All of the assignments of error in the motion for 
new trial were reviewed in the opinion of the this court and 
decided against the contention of the accused, Hicks v. State, 
143 Ark. 58. Thereafter a petition was presented to the 
Supreme Court of the United States for a writ of certiorari, 
which was by that court refused. Since that time the accused 
respondents have remained in the custody of the keeper of the



penitentiary awaiting the action of the Governor in fixing the 
date of execution, and the proclamation of the Governor fixing 
the date of the execution on June 10, 1921, has been suspended 
by the injunction of the chancery court.

The petition filed below contains a repetition of the alle­
gations contained in the motion for new trial with reference 
to the excitement prevailing at and before the trial in the 
circuit court and the alleged domination of mob violence. It 
also contains a charge, which was also stated in the motion 
for new trial, that the accused, being negroes, were denied the 
right and privilege guaranteed by the Constitution of the 
United States by the exclusion of men of their race from the 
grand jury and from the trial jury in Phillips County. The 
petition recites facts in regard to publications in newspapers 
and resolutions passed by civic and fraternal organizations 
prior to the trial and subsequent thereto alleged to be calcu­
lated to arouse the people of Phillips County to a high pitch 
of excitement. It also gives a history of the events which are 
said to have led up to the killing of Clinton Lee and declares 
the innocence of the accused of the crime charged in the in­
dictment. It also alleges that the witnesses introduced by 
the state in the prosecution of the accused were tortured into 
giving false testimony, which said witnesses had retracted 
since the trial. It contains and allegation that prior to the 
indictment of the accused there had been an investigation by a 
committee of white citizens in Phillips County for the pur­
pose of ascertaining who were the guilty parties in the homi­
cide which had occurred and it is stated in the petition that 
“ The entire trial, verdict and judgment against them was but 
an empty ceremony; that their real trial and condemnation 
had already taken place before said ‘ Commit-ee of Seven,’ 
that said committee, in advance of the sitting of the court, 
had set in judgment upon their and all other cases and 
assumed and exercised the jurisdiction of the court by deter­
mining the guilt or innocence of those in jail, had acquired the 
evidence in the manner herein set out, and decided which of 
the defendants should be electrocuted and which sent to prison 
and the terms to be given them, and which to be discharged; 
that when court convened, the program laid out by said com­
mittee was carried through and the verdict against petition­
ers was pronounced not as the independent verdict of an un­
biased jury, but as part of the pre-arranged scheme and judg­
ment of said committee; that in doing this the court did not 
exercise the jurisdiction given it by law and wholly lost its 
jurisdiction by substituting for its judgment the judgment of 
condemnation of said committee.’ ’

9 8  FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.



The doctrine has been announced by this court that courts 
of equity in this State are not clothed with jurisdiction to 
review proceedings in criminal cases or to interfere with such 
proceedings either by injunction or under the writ of habeas 
corpus. State ex rel. Williams, 97 Ark. 243, Ferguson v. 
Martineau, Chancellor, 115 Ark. 317. In State ex rel. v. W il­
liams, there was an instance where the chancellor had, after 
indictment of the accused in the circuit court, issued a writ of 
habeas corpus for the purpose of allowing bail and we held 
that the circuit court acquired exclusive jurisdiction of the 
cause upon the return of the indictment and that the chancery 
court had no jurisdiction to interfere even to the extent of 
allowing bail. In disposing of the matter, we said: “ The
Chancellor has nothing to do with the administration of the 
criminal laws nor right to interfere with them neither has he 
appellate jurisdiction over criminal trials nor appellate or 
supervisory jurisdiction over the actions of chancellors or 
circuit judges granting or refusing bail.”

The case of Ferguson vs. Martineau, Chancellor, supra, 
was one where the chancellor issued an injunction to restrain 
the keeper of the State Penitentiary from executing a death 
sentence, the writ being issued to suspend proceedings and 
stay the execution until the sanity of the accused could be 
inquired into in the probate court. In disposing of the case, 
in which we held that the chancery court was proceeding be­
yond its jurisdiction we said: “ Courts of equity have to do 
with civil and property rights, and they have no jurisdiction 
to interfere by injunction with criminal proceedings. They 
can not stay processes of courts having the exclusive jurisdic­
tion of criminal matters, where no civil or property rights are 
involved.”

These two decisions seem to be conclusive of the contro­
versy now before us and to settle the question that the chan­
cery court was without jurisdiction. But it is insisted that 
while such is the effect of our decisions in establishing the 
jurisdiction of courts that they do not reach to the particular 
question now presented, which is that under the “ due process 
of law”  provision of the Constitution of the United States 
any court having authority to issue a writ of habeas corpus 
possesses jurisdiction to inquire into and review the proceed­
ings in criminal cases for the purpose of determining whether 
or not the judgment was the result of “ due process of law 
within the meaning of the Federal Constitution.”  In other 
words, the contention is that the provision of the Constitution 
with reference to due process of law and the Federal statutes 
prescribing the remedies whereby the constitutional guaranty

FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. 99



1 0 0 FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.

may be enforced must be read into the State laws so that the 
prescribed remedies may be afforded in the State courts.

Counsel for respondents rely on the case of Frank v. 
Mangum, 237 U. S. 309, as sustaining this contention but an 
analysis of that decision and a consideration of the language 
employed by the learned justice who wrote it shows very 
clearly that such is not the effect of that decision. The court 
distinctly recognized the well established rule at common-law 
and under the British statutes, that on habeas corpus a court 
was confined in its inquiry to the face of the process of the 
judgment under which the prisoner was held in custody. The 
case of Ex parte Watkins, 3 Peters 193, was cited where Chief 
Justice Marshall, in delivering the opinion of the court, fol­
lowed the common law rule stated above and decided that a 
court could not, under habeas corpus, look beyond the face of 
the judgment of a court of competent jurisdiction to deter­
mine whether or not a prisoner was being unlawfully held. 
This is in accordance with repeated decisions of our own court 
holding that if a petitioner for habeas corpus “ is in custody 
under process regular on its face nothing will be inquired 
into save the jurisdiction of the court whence the process 
came.”  State ex rel v. Neel, 48 Ark. 283; Barnett ex parte, 51 
Ark. 215; Ex parte Perdue, 58 Ark. 285; Ex Parte Foote, 70 
Ark. 12; Ex parte Byles, 93 Ark. 612; Ex parte Williams, 99 
Ark. 475.

But the Supreme Court of the United States in the Frank 
case, supra, held that Congress had, by the Act of February 
5, 1867, (Revised Statutes, Section 753 et seq.) conferred upon 
the Federal Courts express authority to inquire beyond the 
face of the process or judgment under which a prisoner is 
being held and “ extended the writ of habeas corpus to all 
cases of persons restrained of their liberty in violation of 
Constitution or law or treaty of the United States.”  Further 
speaking on this subject, the court said: “ The effect”  (Acts 
1867) “ is to substitute for the bare legal review that seems to 
have been the limit of judicial authority under the common 
law practice, and under the act of 31 Car. II, c. 2, a more 
searching investigation, in which the applicant is put upon 
his oath to set forth the truth of the matter respecting the 
causes of his detention, and the court, upon determining the 
actual facts, is to ‘ dispose of the party as law and justice re­
quire.’ ”

The statute referred to does not apply to any courts ex­
cept to the Supreme Court and circuit and district courts of 
the United States, and it defines the practice in those courts 
and the powers of the courts under the remedy afforded by



FKANK MOOKE ET AL. VS. E. H. DEMPSEY, ETC. 101

the writ of habeas corpus. The statute does not purport to ap­
ply to the courts of the States and Congress had no authority, 
had it attempted to do so, to prescribe the power of the State 
courts and the practice to be followed in matters within their 
jurisdiction. The court in the Frank case in effect held that 
the statute had no application to the State courts, for it said 
this: “ But repeated decisions of this court have put it beyond 
the range of further debate that ‘ due process’ clause of the 
Fourteenth Amendment has not the effect of imposing upou 
the States any particular form or mode of procedure, so long 
as the essential rights of notice and a hearing, or opportunity 
to be heard, before a competent tribunal are not interfered 
with.”

And again in speaking of the due process mandate in the 
Constitution, the court said: “ The prohibition is addressed
to the State; if it be violated, it makes no difference in a court 
of the United States by what agency of the State this is done; 
so, if a violation be threatened by one agency of the State 
but prevented by another agency of higher authority, there is 
no violation by the State. It is for the State to determine 
what courts or other tribunals shall be established for the 
trial of offenses against its criminal laws, and to define their 
several jurisdictions and authority as between themselves. 
And the question whether a state is depriving a prisoner of 
his liberty without due process of law, where the offense for 
which he is prosecuted is biased upon a law that does not 
violence to the Federal Constitution cannot ordinarily be de­
termined, with fairness to the State, until the conclusion of 
the course of justice in its courts.”

And again the court said on this subject: “ as to the ‘ due 
process of law’ that is required by the Fourteenth Amend­
ment, it is perfectly well settled that a criminal prosecution 
in the courts of a state, based upon a law not in itself repug­
nant to the Federal Constitution and conducted according to 
the settled course of judicial proceedings, as established by 
the law of the State, so long as it includes notice, and a hear­
ing, or an opportunity to be heard, before a court of compe­
tent jurisdiction, according to established modes of proced­
ure, is ‘ due process’ in the constitutional sense.”

What the result would be of an application to a Federal 
Court under the statutes referred to and upon the facts stated 
in the petition we need not inquire. A perusal of the opinion 
of the-Supreme Court of the United States in the Frank case, 
supra, is, however, illuminative of the subject. The court, 
after reviewing all of the facts as narrated in the petition 
and referring to the various proceedings in the State courts,



1 0 2 I'RANK MOOBE ET AL. VS. E. H. DEMPSEY, ETC.

said: “ The narrative has no proper place in a petition ad­
dressed to a court of the United States except as it may tend 
to throw light upon the question whether the State of Georgia, 
having regard to the entire course of the proceedings, in the 
appellate as well as in the trial court, is depriving the appel­
lant of his liberty and intending to deprive him of his life 
without due process of law. Dealing with the narrative, then, 
in its essence, and in its relation to the context, it clearly 
appears to be only a reiteration of allegations that appellant 
had a right to submit, and did submit, first to the trial court 
and afterwards to the Supreme Court of the State, as a 
ground for avoiding the consequences of the trial.”

The court further said that “ this familiar phrase ‘ due 
process of law’ does not mean that the operations of the State 
government shall be conducted without error or fault in any 
particular case, nor that the Federal Courts may substitute 
their judgment for that of the State courts, or exercise any 
general review over their proceedings, but only that the fun­
damental rights of the prisoner shall not be taken from him 
arbitrarily or without the right to be heard according to the 
usual course of law in such case.”

Further discussion would seem to be useless. It was not 
contended in the argument here that there is any other charge 
in the motion upon which relief could be granted, except the 
one to the effect that the trial court was dominated by a mob, 
which suspended the functions of the court and prevented a 
fair trial. There are no other facts in the petition which 
would warrant a review of the judgment of the circuit court 
of Phillips County. The allegations with regard to newly dis­
covered evidence and the retraction by the State’s witnesses, 
which is, in effect, an allegation of the discovery of new evi­
dence, afford no grounds for a review of the judgments of 
conviction, for there is no provision in the laws of this State 
for the granting of a new trial after the lapse of the term on 
the ground of newly discovered evidence, Howard vs. State, 
58 Ark. 229; Thomas v. State, 136 Ark. 290; Satterwhite v. 
State, MS. Op.

It follows that the chancery court is without jurisdiction 
to proceed and the writ of prohibition will, therefore, be 
granted and the writ of habeas corpus as well as the injunc­
tive order issued by the court will be quashed.

Endorsed: Filed Sept. 21, 1921. Sid. B. Redding, Clerk.



Affidavit of T. K. Jones.

S tate  of T en n essee ,
County of Shelby, ss:

T. M. Jones, being first duly sworn, deposed and said:
My name is T. K. Jones. My age is 42, and I reside at 

250 Lucerne Place, Memphis, Tennessee. I know the petition­
ers Frank Hicks, Frank Moore, Ed. Hicks, J. E. Know, Ed. 
Coleman and Paul Hall, and have known them since about the 
1st of October, 1919.

For about six years prior to July 15, 1921, I was special 
agent for the Missouri-Pacific Railroad. In the year 1919 1 
was special agent in charge of the Memphis Division from 
Noble, Arkansas, to McGehee, Arkansas, Memphis to Bald 
Knob, Memphis to Marianna, Helena to Clarendon and Brink- 
ley, with headquarters at Wynne, Arkansas. On the night of 
September 30, 1919, I was in Helena, Arkansas. Mr. Dick 
Dazell came to me about 7 o ’clock P. M. of that date, and 
asked me if special officers Smiddy and Atkins could go with 
Mr. Charles Pratt down to Elaine that night to arrest a man 
by the name of Clem, charged with some kind of a misde­
meanor, and I told him that they could go if they wanted to. 
Mr. Smiddy and Mr. Atkins were both in the employ of the 
Missouri-Pacific Railway, working under my direction. Mr. 
Smiddy did not go, but Mr. Atkins did go with Mr. Pratt, 
and I was present about 9 o ’clock P. M. when they left in a 
Ford automobile in front of the court house on this trip. I 
heard them say before leaving that they had to go by Mr. 
E. J. Weyeth’s house, and when they left, instead of going in 
the direction of Elaine, they left in the direction of Mr. 
Weyeth’s house. I did not hear them say for what purpose 
they were going to Mr. Weyeth’s house.

Later on I went to the Cleiborne Hotel and went to bed. 
Mr. Smiddy had a room across the hall from me in the same 
hotel.

About 2 o ’clock in the night Mr. Dazell called me on the 
telephone and told me that the men who had left that night 
had gotton into some trouble down about Hoop Spur and that 
there was some shooting and that our men might be hurt. 
And he asked me if Mr. Smiddy and I could go with him and 
some others that were going down there to investigate the 
matter. I told him that we would. And I waked Mr. Smiddy 
and we dressed and went down with them, there being two 
automobile loads of us, four of us in Mr. Dazell’s car and five 
in Mr. Aubrey’s car.

FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. -103



We arrived at Hoop Spur church house about 3:30 or 
4:00 o ’clock in the morning. It was still dark. We found the 
dead body of Mr. Atkins about 30 feet north of the bridge 
across the slough which runs across the public road just north 
of the Hoop Spur church. As soon as we discovered the body 
of Mr. Atkins I jumped out of the automobile and went to it 
and found that he was dead. I paid no particular attention 
to what the other members of the party were doing, but was 
looking after Mr. Atkins. We found the Ford automobile 
close by. I went up to the church house and saw the disar­
ranged condition of the benches and everything as described 
by Mr. Smiddy in his affidavit. There was a horse and wagon 
out north of the church hitched to the fence, and we found a 
saddle in the road out south of the bridge near the church. 
This bridge is proha-ly thirty five or forty yards north of the 
front of the church. After spending proba-ly thirty minutes 
at the church house we drove on to Elaine where Mr. Dazell 
phoned to Mr. Kitchens at Helena and reported what we had 
found. About sun-up we returned to the Hoop Spur church. 
I made no further examination of the church chouse, and I 
did not know whether it was shot into or not from my own 
observation; but a shed house standing to the north of the 
church with the roof slanting to the north appeared to have 
been shot into from the north. I was more concerned about 
the disposition of Mr. Atkins’ body than I was about the con­
dition of the church house.

Along in the afternoon of the same day while again at 
Elaine I heard some planters talking and from their conversa­
tion I understood that a number of white men had gone to 
the Hoop Spur church house the night before for the purpose 
of breaking up the meeting of the negroes there and that the 
white poeple had shot into the church and started the shoot­
ing. Just who these men were I do not now recall. One of 
them said to the other that, “ My negroes don’t belong to that 
blankety blank union.”  The other said, “ How in the hell do 
you know they don’t ? ”  He answered and said, “ I told my 
negroes about two weeks ago that if they joined that blankety 
blank union I would kill every one of them.”

I didn’t go out with any of the parties in search of the 
negroes. Mr. Sam Austin and I were left near the Hoop Spur 
commissary to guard the road across where the public road 
crosses the railroad with orders to arrest all negroes who 
came by there armed. Mown came by. We stayed there from 
about 8 o ’clock in the morning until about 12:30 and no 
negroes came by. At about 12:30 some man came by there in 
an automobile and told us they had a tip the negroes were

1 0 4  FRANK MOORE ET AL. VS. E. H . DEMPSEY, ETC.



FBANK M 00BE ET AL. VS. E. H . DEMPSEY, ETC. 105

going to attack the McCoy house and for us to go down there, 
which was a short distance from where we were, probably a 
half a mile. We went down there and remained until about 3 
o ’clock and there was no attack made and we left.

While at the McCoy house Lieut. Tappan was brought in 
in a dying condition and I saw him die on the bed in the 
McCoy house. Tappan was shot in the left side of the face 
and neck with a load of buck shot. While there I saw a bunch 
of negroes cross the railroad and dirt road going east about 
half a mile south of the McCoy house and disappear in a corn 
field on the east side of the road. I didn’t see any negroe in 
that bunch with a gun or other weapon in his hand. If any 
negro in the crowd had a gun I didn’t see it. I know posi­
tively no negro stopped in the road, kneeled, and made a shot 
or two up the road, because if he had done so I would have 
seen him as I was looking right at the bunch of negroes that 
crossed the road.

I was not immediately present when Clinton Lee was 
shot. I saw him after he was shot and also saw the hole iu 
the rear end of the automobile and was told that he was 
killed by the shot that made that hole. There was no loose 
horse in the road between the McCoy house and the negroes. 
Automobiles were running up and down that road almost con­
tinuously, and if the negroes had desired to kill any white 
men they had ample opportunity to do it, as there was pass­
ing along the public road all the time. The local freight train 
on the Missouri-Pacific Railroad made several trips up and 
down the road during the day with the caboose loaded with 
men, and if the negroes had desired to kill anybody they 
could have killed them.

So far as I know no person traveling along the public 
highway was shot into or disturbed in any manner. I did 
not see a single negro with a gun or weapon of any kind dur­
ing the whole day I was in the country.

I caught a local freight train and rode it up to Wabash, 
and from there I went back to Elaine, arriving about 3:30, 
where I remained until 7 or 8 o ’clock and caught a train back 
to Helena. As I passed the Hoop Spur church house on the 
return trip I noticed that it had been burned down sometime 
during the day.

From the information I gathered while I was down there 
the whole trouble started because the white folks objected to 
the negroes having this union; that the negroes were organiz­
ing to employ counsel to represent them in getting settlements 
from their white landlords, and the white folks objected to 
this procedure. I did not go down into the Elaine territory



and more on this business. I was in Helena after the negroes 
were brought to the county jail, which was probably a week 
after the trouble started; and I was there off and on for sev­
eral days at a time until the trials came off and during the 
trials.

I saw a great many negroes whipped on the third floor 
of the county jail to compel them to give evidence against 
themselves and others about the trouble.

I know that Mr. Smiddy conveyed a number of prisoners 
from the jail to be examined by The Committee of Seven and 
brought them back, and I know that the negroes were fre­
quently whipped and otherwise tortured after they were 
taken before the Committee and brought back. They would 
take the negroes before this Committee and bring them back 
to the whipping room of the jail, and apply the lash until the 
negroes were willing to testify and would testify to anything 
that was wanted of them to save themselves from further 
torture. They were not only whipped but formaldehyde was 
put to their noses and were stripped naked and put into an 
electric chair which they had in the room to further frighten 
and torture them. I not only personally saw a great many 
negroes whipped with a leather strap that would cut the blood 
at every lick, but I whipped probably two dozen of them my­
self. I either whipped or helped to whip several of these 
petitioners, I don’t know which, but I do remember that I 
helped to whip Frank Moore and J. E. Knox. To the best of 
my recollection Walter Ward, one of the witnesses against the 
petitioners, was whipped two or three times and put in the 
electric chair to make him testify against the petitioners.

Not all of the prisoners were whipped, but those that 
were not whipped saw others that were whipped and were 
told if they did not give the testimony that was wanted that 
they would get the same thing that those that were whipped 
got.

After a negro was whipped, as a general proposition, he 
•was unable to walk back to his cell and was dragged back and 
dumped in and his clothes were thrown in after him. They 
were whipped so brutally and unmercifully that a physician 
had to be called in to take care of them afterwards. I do not 
now recall the physician’s name, but I was told that he was a 
county physician. I was — him in the cells a number of times 
attending to the injuries of these negroes that had been 
whipped had received.

In this manner the testimony that was used in the trials 
of these cases and the others was acquired. So far as I know 
no negro made a voluntary statement that implicated any

1 0 6  FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.



other negro in anything criminal, and 1 believe that 1 would 
have known it if it had been done. The negroes would be told 
that such and such a statement they had made was a blankety 
blank lie; That they knew such and such was true, and after 
being whipped the negroes would says, “ Boss, yes, sir, that is 
so; I will say anything you want me to say,” —or something 
to that effect.

Court met in Helena the latter part of October or about 
the first of November, and a great many of these negroes were 
indicted. They were indicted without taking before the 
Grand Jury the witnesses who were to give the evidence. 
Some person would go before the Grand Jury and tell them 
what such and such a person would testify to, and upon the 
information thus acquired the Grand Jury returned the in­
dictment.

So far as I know the negro witnesses who were used in 
the trials before the petit jury never appeared before the 
Grand Jury at all, and they were the only one from whom 
they got any statements to connect any of the defendants 
with the commission of any offense.

At the trials of these cases the only evidence they had 
against these petitioners to connect them with any criminal 
offense was the evidence that he had extorted in the manner 
above set out. I was present during the trials in the court 
room. Large crowds thronged the court house and grounds, 
all of whom were unfriendly to the defendants, and desired 
their condemnation and death. The feeling against them was 
so bitter and so strong and so universal that it was absolutely 
unanimous and no man could have sat upon a jury in any of 
these cases and have voted for an acquittal and remained in 
Helena afterwards.

So far as I can now recall the jurors that sat upon these 
and the other cases were very briefly examined, and I do not 
remember that any juror was challenged by the defendant’s 
counsel.

Shortly after the negroes were placed in the jail a mob 
was formed and came around the court house and jail for the 
purpose of lynching some of these negroes, but the presence 
of United States soldiers and advice of some level-headed 
prevented the purpose of the mob. They were told that if the 
mob would not lynch the negroes that they would be tried and 
convicted.

Those that did the whipping of the negroes in the Phil­
lips County jail other than myself and Mr. Smiddy were Mr. 
Dick Dazell, Louis Anselman, Charlies Gist, and some others 
whose name- I do not now recall.

FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC. 10.7



1 0 8 FRANK MOORE ET AL. VS. E. H . DEMPSEY, ETC.

I make this affidavit freely and voluntarily to the end 
that justice may be done and I stand ready at any time to 
testify in any court orally as to the facts and statements 
herein made.

And further affiant sayeth noth.
(Signed) T. K. JONES.

Subscribed and sworn to before me this 19th day of Sept.
1921.

[ s e a l .] M. W. ALLEN, 
Notary Public.

My commission expires Jan. 16, 1923.

Endorsed: Filed Sept. 21, 1921. Sid. B. Bedding, Clerk.

Affidavit of H. F. Smiddy.

S tate  of T en n esse e ,
County of Shelby, ss:

H. F. Smiddy, being first duly sworn, deposes and says:
My name is H. F. Smiddy, age 32, and reside at 133 

South Lauderdale, Street, Memphis, Tennessee. I know the 
petitioners, Frank Hicks, Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman and Paul Hall, and have known them 
since about October 1st, 1919. During September, October 
and November, 1919, I was employed by the Missouri Pacific 
Railroad Company as Special Officer, under Mr. T. K. Jones 
and worked from Wynne south to McGehee, Arkansas. Dur­
ing the latter part of November or early in December, I quit 
work for the Railroad Company and was employed by the 
City of Helena as plains clothes man under Chief of Police Sam 
Austin, and later, some two or three months, I quit this work 
and was employed as a Deputy Sheriff of Phillips County, 
Mr. Frank Kitchens being the Sheriff and Mr. J. R. Dalzell 
being Chief Deputy, under whose directions I worked for 
about one year, during which time Mr. Kitchens died and 
Mr. Dalzell was appointed to fill the unexpired term. I con­
tinued as Deputy until Mr. Jim Mays became sheriff. During 
all this time I was either making Helena my headquarters or 
was living there.

I was in Helena the night of September 30, 1919, the 
night the shooting occurred at the Hoop Spur Church near 
Hoop Spur, when Mr. W. A. Adkins was killed. Mr. Atkins



FEASTK MOOSE ET AL. VS. E. H. DEMPSEY, ETG. 109

was a Special Officer under Mr. T. K. Jones the same as I 
was, and we worked together. On the night of September 
29th, Mr. Atkins and I were up all night trying to locate a 
negro charged with breaking into an interstate shipment, and 
we continued all day of the 30th and arrived in Helena about 
7 p. m. Shortly afterwards Mr. Charles Pratt, who was a 
deputy sheriff of Phillips County came to me and Atkins and 
asked us to make a trip with him to Elaine. I told him I was 
too speepi and tired and declined to go. Atkins agreed to go 
with him. I had supper with Atkins. Afterwards about 9 or 
9:15 p. m. they got in an automobile in front of the court 
house, together with a negro, by the name of Kid Collins, and 
left, and said they were going by Mr. E. J. Weyeth’s house to 
get some whiskey. That was the last time I saw them that 
night. Shortly afterwards I went to the hotel and went to 
bed. Mr. T. K. Jones was also in Helena and had a room in 
the same hotel just across the hall from mine. About two 
o ’clock that night Mr. Jones called me and told me that Mr. 
Dalzell had called him and told him that the men sent down 
to Elaine had some trouble north of Elaine, that there was 
some shooting and possible some one got hurt, and that they 
wanted us to go down with them as a posse was being organ­
ized for that purpose. We dressed and went with them. 
There were two cars left, Dick Dalzell’s and Aunrey Burke’s. 
In Mr. Dalzell’s car there were, Mr. Dalzell, Mr. Amos Jar­
man, Mr. Jones and myself. In the other car there were Mr. 
Burke, Sam Austin, Will Malliter and two others whose names 
I cannot now recall. We left Helena about 3 o ’clock a. m. 
and arrived at Hoop Spur Church about 4:30 a. m. It was 
still dark. We found the dead body of Mr. Atkins lying about 
30 feet north of a bridge across a slough about 40 yards north 
of the church house. The car in which Atkins, Pratt and 
Collins drove down was standing on the bridge near the south 
side of the bridge and we backed the car off the bridge to the 
north side.

On examination we found Atkins had been shot in the 
stomach with a load of buckshot and through the neck with a 
rifle or pistol. We found a horse and buggy on the north side 
of the church and a saddle lying in the road near the front 
of the church and a coat just north of Mr. Atkins.

We spent about 30 minutes there at the Hoop Spur 
Church house and left and went to Elaine about four miles 
south. While at the Hoop Spur Church house we saw no 
negroes and were not distu-bed or interfered with by any­
body. On arrival at Elaine Mr. Dick Dalzell telephoned 
Sheriff Kitchens at Helena for reinforcements after telling 
him what we had found at Hoop Spur.



About sun-up we left Elaine and returned to the Hoop 
Spur Church, several people from Elaine going with us. We 
arrived at Hoop Spur church about sun-up. We made a 
thorough examination of the church house, and on the inside 
we found a condition that showed that the last people who 
had been in the church had left there hurriedly. Benches 
were turned over, window lights broken out on all sides of 
the church, glass scattered all over the floor, women’s and 
men’s hats and coats scattered around over the floor and 
every evidence of a stampede in the church house. We also 
found some literature of the Farmrs & Laborers’ Household 
Union of America. We found nothing in the literature to in­
dicate a criminal or unlawful purpose on the part of the 
organization. We found a large amount of this literature 
pertaining to this organization of this union but so far as I 
knoww none of it has ever been offered as evidence in Court.

On examination of the church house from the outside I 
found where the church had been shot into from the nortli 
side. There was a shed or building just north of the churcii 
that had been shot into also. The roof of this shed or build­
ing which slanted to the north and which plainly showed 
that it had been shot into from the north, and also the side of 
this shed had several bullet holes. About 8 o ’clock in the 
morning Kid Collins, a negro who come down in the car with 
Atkins and Pratt, came to the church house and I had a con­
versation with him there. I asked him what had happened 
that night. He told me they came down there for the pur­
pose of breaking up the meeting; that they stopped there in 
the road and Mr. Atkins begun shooting. He said that the 
negroes returned the fire and the shooting became general; 
that Mr. Atkins was killed; but he did not know what had 
become of Mr. Pratt. That he got one of the negroes himself, 
meaning that he had killed one of them, and that the negroes 
picked up the man he shot and carried him off. That he had 
run away after the shooting and went to Wabash, which was 
about four miles north of Hoop Spur and “ when I got to 
Wabash I notified the deputy sheriff at Wabash—called him 
to his door and told him about it,”  and he said, “ What can I 
do; I cannot do nothing” , and shut the door in the negro’s 
face and went on back in the house.

After this conversation with Kid Collins we began to 
arrest negroes and bring them into the church house. We 
wrent out to their houses and around in the vicinity and 
brought them in. Some of them were in the fields picking 
cotton,—men, women and chidre-.

So far as I know none of them we found aremd that 
morning.

1 1 0  FHANK MOOBE ET AL. VS. E. H . DEMPSEY, ETC.



Between nine and ten o ’clock on the morning of October 1st 
a great many people from Helena and other portions of Phil­
lips County, and from other surrounding counties, began com­
ing in, quite a large number of them, several hundred of them, 
and began to hunt negroes and shotting and killing them as 
the- came to them. The posse I was in was composed of fifty 
or sixty men. We left the church house and marched down a 
slough leading off from the church, which is the same slough 
that the bridge was over there near the church and is known 
as Govan Slough. Some of us were on one side of the slough 
and some on the other.

We began firing into the thicket from both sides thinking 
possibly there were negroes in the thicket and we could run 
them out and kill them. As we marched down the thicket to 
the southwest I saw about five or six negroes come out un­
armed, holding up their hands, and some of them running and 
trying to get away. They were shot down and killed by mem­
bers of the posse.

I didn’t see a single negroe during all the man hunt that 
was armed, and I didn’t see a single negro fire a shot. I was 
present when Jim Miller was killed and Arthur Washington 
was killed, and when Milliken Giles was injured. I shot Milli- 
ken Giles myself. He was in the edge of the thicket trying to 
hide. When I shot him he was not trving to shoot anybody 
and didn’t have a gun. After I shot Milliken Giles five or six 
of us went to see if there were any more negroes in there 
where he was, and he was lying there shot through the chin 
and the bullet lodged in the back of his neck. We thought 
that he was dead. He did not die, but recovered and is now 
in the penitentiary serving a sentence on a plea of guilty.

Arthur Washington was killed as he ran away from his 
house. I saw him running away from his house and saw him 
a minute or two after he fell dead and walked up to him after­
wards.

After Arthur Washington was shot we marched on down 
to where the thicket came to a point where the road crosses. 
At this road the thicket had run out and we turned around 
and were going to march back up the thicket, firing into the 
thicket from both sides. As we were marching back after we 
had gone about three hundred feet Mr. James Tappan was 
killed. He was on my side of the thicket, which was the east 
side of the thicket. He had gone down that side of the thicket 
and when we came to the point we turned around and were 
going back on the same side of the thicket. At the point 
where Mr. Tappan was killed the thicket was probably 30 
feet wide. I am sure that there were no negroes in the thicket

FRANK MOORE ET AE. VS. E. H. DEMPSEY, ETC, 1 1 1



at that point as we searched it thoroughly after the shooting 
of Tapp-n and found no negroes near anywhere he was shot

Mr. Tappan was shot in the left side of the face. I am 
positive that this is true for the reason that we were going 
north on the east side of the thicket, which would have put his 
left side to the thicket. I furthermore know that when he 
was put in the automobile to be carried to the McCoy house 
we laid him on his right side, because the left side was 
wounded. He was shot with a load of buckshot at a short 
distance. I don’t know who shot him, but I feel perfectly 
sure that he was accidentally killed by a member of our own 
posse on the other side of the thicket from us. About the 
time he was killed somebody hollered from both sides of the 
thicket, “ Look out, we are shooting our own men.”  I know 
that this is possible because I was shot in the right shoulder 
by a stray shot of some kind from a member of our posse, and 
also Mr. Dalzell was shot over the left eye. I did not hear 
Mr. Herbert Thompson or anybody else holler out to the 
negroes to come out of the thicket and surrender. “ And you 
will not be harmed”  or anything of the kind. When we 
started down that thicket it was the understanding with all of 
us that we would shoot the negroes as we came to them, which 
we did. I furthermore know that no negroe ran out by where 
Mr. Tappan was lying after he was shot because if he had he 
would have been killed. I was standing within twenty feet of 
him when he fell, and a number of others, and some ran to 
him and stayed with him until he was taken to the house. I 
went to the house with him. If Mr. Herbert Thompson was 
there in the posse on either side of the thicket I don’t remem­
ber it, and I don’t remember seeing him ai’ound Mr. Tappan 
after he was shot.

It is not true that any negro got Mr. Tappan’s gun. He 
had a 20 gauge Winchester pump hammerless shot gun. This 
gun was picked up by a member of the posse and carried over 
to the McCoy house, and what became of the gun after that 
I don’t know. We picked Mr. Tappan up, put him in an 
automobile, and took him over to the McCoy house, which was 
about berween two hundred and three hundred yards away, 
and we took him in the house and laid him on the bed. This 
was probably between twelve and one o ’clock. Shortly after­
wards I came out of the house and there were several auto­
mobiles standing in front of the house with a number of men 
around. I got in an automobile with Mr. Clinton Lee. I sat 
down on the door on the right hand side of the car and the 
drive- backed the car up to turn around and go back to the 
Hoop Spur church. As the car had turned around facing west

1 1 2  FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.



FBANK M 00BE ET AX.. VS. E. H. DEMPSEY, ETC. 113

a shot or two was fired from the south and one of the bullets 
struck the south side of the car, passed through Clinton Lee 
and went between my arm and my body, just touching my 
coat. Clinton Lee was mortally wounded—killed almost in­
stantly. We took him out of the car and carried him into the 
McCoy house. I don’t know who fired the shot. I didn’t see 
anybody at the time the shot was fired. A short time before 
the shot I saw a bunch of negroes, probably between twenty 
and thirty, crossing the dirt road about half a mile south of 
the McCoy house and get into a corn field on the east side of 
the dirt road. They were running,—seemed to be scared and 
seemed to be trying to get out of the way of the white folks. 
I didn’t see any negro with a gun in his hand as he crossed 
the dirt road, although they were in plain view. I don’t 
know vTho any of the negroes were in the gang that crossed 
the road. They crossed the railroad and dirt road a short dis­
tance below a house they call the Honk-a-tonk.

After the shooting of Lee we thought the Negroes that 
had crossed the road were going to make attack on the McCoy 
house, and we scattered out around the McCoy house and up 
and down the lane. We waited there for some time, but no 
attack was made of any kind and some of us left and went to 
Elaine, probably about three o ’clock in the afternoon. I was 
among the party that left and went to Elaine, but who the 
parties were, I cannot name them all.

At Elaine we found the people there expecting an attack 
from the Negroes on the town, and a number of them got on 
top of the stores and houses, and a number of us went out in 
the field west, probably a quarter of a mile, where the Negroes 
were supposed to be hidden in the corn patch. We did not 
find any Negroes out there, and no attack was made, and no 
shot was fired upon anybody to my knowledge.

During that afternoon, October 1st, 1919, a crowd of men 
came into the vicinity of Elaine from Mississippi and began 
the indiscriminate hunting down, shooting and killing of 
Negroes. They shot and killed men, women and children 
without regard to whether they were guilty or innocent of any 
connection with the killing of anybody, or whether members 
of the union or not. Negroes were killed time and time again 
out in the fields picking cotton, harming nobody. The?/ next 
day, October 2nd, the soldiers came there and placed the town 
of Elaine under martial law and began going out through the 
surrounding country arresting Negroes and bringing them 
into Elaine, where they were placed in a school house under 
guard. Several hundred of them were gathered up under this 
manner. They were later taken to Helena and placed in the 
Phillips County jail.



I returned to Helena on the afternoon of October 2nd, I 
noticed as I passed by the Hoop Spur church that it had been 
burned down. I was informed that it was burned down on 
October 1st by white men; who did it I don’t know, but I was 
told that it was burned down to destroy the evidence that it 
had been fired into by those that went there to break up the 
meeting.

After the Negroes were placed in jail a committee known 
as The Committee of Seven was selected to investigate the 
matter. This committee did make an investigation. They 
would call for a certain Negro, or negroes, to be brought be­
fore them from the jail and in a great many instances, prob­
ably a majority of them, they were taken before this com­
mittee by me personally. While he was being examined by 
the committee I would sit and hear what the Negro had to 
say. Different members of the committee would ask the 
Negroes questions, and in no instance so far as I remember 
did a Negro give the committee any information they wanted 
on fired examination. Different members of the committee 
would say to the Negro, don’t you know so and so, and the 
Negro would answer “ No, sir.”  Somebody else would say, 
you know you are lying about it, you know so and so is true, 
and you got to tell it. The Negro would answer, I don’t 
know sir. Different members of the committee would curse 
and abuse the Negro. After they would get through with 
him I would take him back to the jail and would take him 
upstairs on the third floor to the whipping room and where 
the electric chair was located, where the Negro would be 
stripped naked and whipped from his head to his feet with i 
seven-pound leather strap. The Negroes were whipped un­
mercifully. Every time the strap was applied it would bring 
blood. I have personally applied the lash to a great number 
of these Negroes. We whipped them to make them tell what 
we wanted them to tell. We wanted them to tell facts that 
would convict themselves and others under arrest. We We 
would have before us in writing the statements made to the 
committee. We would whip them awhile and then read to 
them what they had said to the committee and ask them if 
that was false. If the Negro didn’t say yes we would whip 
him some more. Then we would ask him is not certain other 
things true, which would reflect upon himself and others, and 
if he didn’t answer they were true we would whip him again. 
I personally administered the lash and saw others do it to a 
great many Negroes until they were bleeding all over, and 
would be in such a physical condition until they would have 
to be picked up and dragged back to their cells in the jail

1 1 4  FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.



and picked up and put on their bunk, where they were left 
for days where they were unable to take care of themselves, 
and other prisoners had to take care of them. A great many 
of them were in such a condition that a physician was called 
to administer to them. I personally administered the lash anil 
saw others do it time and time again to a great many Negroes 
who had been previously whipped. The lash was applied on 
the old sores made at the first whipping, and usually the 
second whipping would get the Negro to say what was wanted 
if he had refused in the first instance. One of the petitioners 
in this case, Frank Moore, was whipped at least three times 
to try to compel him to give evidence against himself and the 
other petitioners, which he never did do. He stated that he 
would rather die in this manner than to tell something on 
himself or others that was not true. In addition to the 
whipping, and frequently during the course of the whipping. 
formal-2/hde was put to the nose of the Negroes to further 
torture and frighten them and compel them to give damaging 
evidence against themselves and others. In addition to this, 
there was an electric chair in the same room on the third floor 
of the Phillips County jail in which a great many Negroes 
were stripped naked and put and the current turned on to 
frighten and torture them into giving damaging statements 
against themselves and others. While the Negroes were being 
whipped they were stretched out on their stomachs on the 
concrete floor, with four Negroes holding them down, one 
holding each hand and one holding each leg. These four 
Negroes were prisoners in the jail, but were not charged with 
any connection with the Elaine Riots. In this manner evi­
dence was extorted from the Negroes which was used against 
them in their trials, and so far as my observation went, and I 
was present throughout all of it, the only evidence on behalf 
of the State that the State had was acquired in this manner. 
In other words, I mean to say that no Negro freely and vol­
untarily testified in these cases. They were either whipped 
and compelled to testified, or tortured in the other ways 
herein stated, or they were told if they didn’t testify to what 
was wanted they would be treated in the same way. I do not 
mean to say that every Negro was whipped, but I do mean 
to say that every Negro that testified in these cases was either 
whipped or tortured by the other means herein stated, or saw 
what had happened to some other Negro and was told that if 
he didn’t testify to what was wanted that he would get what 
these others had gotton.

In the cases of the Negroes who were not whipped, who 
were examined, I hea-d many of them say, “ White folks,

FRANK MOORE ET AJU VS. E. H. DEMPSEY, ETC. 1 1 5



what do you want me to say, I will tell you anything you 
want?”  To the best of my information and belief all of the 
petitioners were whipped or otherwise tortured with the ex­
ception of Ed. Coleman.

Those that did the whipping of the negroes in the Phil­
lips County jail other than myself and Mr. Jones were, as I 
remember, Mr. Dick Dalzell, Louis Anselman, Charley Gist, 
and some others whose names I do not now recall.

In the trials of these cases Walter Ward, George Green, 
and John Jefferson testified for the State. So far as I now 
remember they were the only ones that testified to anything 
to connect the petitioners with the killing of Clinton Lee. The 
substance of the testimony as I remember it was that they 
ganged up at Frank Moore’s house on the morning of October 
1st and along toward 10 or 11 o ’clock they heard firing up the 
road and that Frank Moore said, “ We will go up and help 
them out” ; that they marched away and went up to near the 
McCoy house across the railroad, and as they crossed the dirt 
road Frank Hicks kneeled in the road and fired two shots. 
This was supposed to be at the time Clinton Lee was killed, 
and that Frank Hicks made the remark that if-—had not been 
for the loose horse between him and the McCoy house he 
would have killed that guy; and that someone made the re­
mark to Frank Hicks not to shoot. That after the shots were 
fired they crossed on over and went to Yellow Bank.

I know that Walter Ward was whipped and compelled to 
give this testimony, and I furthermore know that George 
Green and John Jefferson were told that if they didn’t give 
the same evidence they would get what AValter Ward and the 
others got. To the best of my recollection Walter Ward was 
whipped about three times; had formaldehyde put to his nose; 
and was put into the electric chair before he agreed to testify 
to what he did testify to.

I furthermore know that a part of this testimony at least 
was false, in addition to it having been extorted from them. I 
know that no negro that we saw cross the road south of the 
McCoy house kneeled in the road and fired a gun because 1 
was looking right at them when they crossed. I furthermore 
know that there was no loose horse between us and the 
negroes, and I also know that no negro who crossed the dirt 
road down there had a gun in his hand. At least I didn’t see 
any, and I believe if any negro had had a high power rifle or 
shot gun I would have been able to have seen it. I further­
more know that the only kind of a gun that could have been 
fired from the distance the negroes crossed the road and killed 
Clinton Lee would have been a high powered rigle, as, accord­

116 FRANK MOORE ET AL. VS. E. H . DEMPSEY, ETC.



ing to my best judgment, they crossed the road at least a half 
a mile away.

I furthermore know as the negroes crossed the road they 
crossed in a run and that they got out of sight into the corn 
field as quick as possible.

About three or four days after the negroes were brought 
to the Phillips County jail a mob was formed in Helena and 
gathered around the jail and court house for the purpose and 
with the intention of mobbing a large number of the negroes 
and would have done so but for the presence of a number of 
United States soldiers on guard about the jail and court 
bouse, and but for the advice of some level-headed citizens 
who told them that there had never been a lynching in Phil­
lips County and if they would disperse and do no violence to 
anyone that they would see that the negroes were punished.

I was present during the trials of petitioners. So far as 
I now recall counsel for the defendants, who are here the peti­
tioners, did not challenge any jurors, and so far as I now re­
member counsel asked the petiti jurors very few questions and 
only such as were of a general nature. The jury in each case 
was quickly chosen. According to my best recollection Frank 
Hicks was tried separately from the other petitioners, who 
were tried jointly. Some of the jurors who sat upon these 
cases were in the posses that went to Elaine and in that 
vicinity to quell the so-called race riot. I cannot now remem­
ber just who they were, and am not able to give the names of 
such jurors. I furthermore know that there never was a 
chance for the petitioners, who were the defendants in these 
cases, to have been acquitted. No man could have sat upon 
any jury in Phillips County at these trials and have voted for 
an acquittal, and have continued to live in Phillips county. 
Large crowds attended the trials, thronged the court house 
and grounds, all of whom so far as I was able to observe were 
unfriendly to the petitioners and all of whom were bent upon 
their conviction and death. If any prisoner had by any 
chance been acquitted by a jury he could not have escaped the 
mob.

So far as I know, the negro witnesses who were used in 
the trial before the petit jury/- never appeared before the 
grand jury at all, and they were the only ones from whom 
they got any statement to connect any of them with the com­
mission of an offense.

The trials in each of these cases lasted a very short time, 
probably less than an hour. The jury was out from three to 
five minutes in each case, and brought in a verdict of guilty. 
From the beginning of the trouble and almost every day

EKANK MOOBE ET AL. VS. E. EL DEMPSEY, ETC. 4 1 7



through to the closing of the trials the press of Helena, Little 
Rock, and Memphis carried highly inflammatory articles 
abo-t these cases. It was charged by the Committee of Seven 
and published in the “ Helena W orld”  and other newspapers 
was that the object of the union was to kill white people and 
take their property. But we were never able to verify this 
statement except from testimony that was extorted from 
negro witnesses by the methods and means herein set forth.

I do not know how many negroes were killed in all, but I 
do know that there were between two hundred and three 
hundred negro^res killed that I saw with my own eyes. The 
only white men that I know of that were killed were Atkins, 
Tappan, Lee, Lily and two soldiers whom I do not know. One 
of the soldiers was not killed outright, but I understood that 
he later died.

I make this affidavit freely and voluntarily to the end 
that justice may be done. I know that the whole truth was 
not developed in these trials and that it is but a simple mat­
ter of justice to these petitioners that I make this affidavit 
setting forth the true facts.

I have testified in these and other cases growing out of 
this trouble, and as a witness for the State, and I did not tell 
all that I am now testifying to because I was not asked.

I did testify heretofore that I examined the Hoop 
Spur church house and found no bullet holes in it. This was 
true sa far as it went. The first time I was at the Hoop Spur 
church house I examined it and it was dark and I was unable 
to see any bullet holes in the church and I didn’t find any. 
The second time I did find them as before stated. Further­
more, I was instructed by those in authority that I should 
give no testimony of any character favorable to the defend­
ants.

I stand ready to come before the Court in which this affi­
davit is filed, if any, and sustain the facts as herein detailed 
on oral testimony.

And further affiant sayeth not.
(Signed) ' H. F. SMIDDY.

Subscribed and sworn to before me this 19th day of 
September, 1921.

[ seal .] (Signed) W. M. ALLEN,
Notary Public.

My commission expires Jan. 16th, 1923.

Endorsed: Filed Sept. 21, 1921. Sid B. Redding, Clerk.

1 1 8  FRANK MOORE EX AL. VS. E. H. DEMPSEY, ETC.



FRANK MOORE ET AL. VS. E. H . DEMPSEY., ETC. 1 1 9

U n ited  S tates  of A m e r ic a ,
Eastern District of Arkansas,

Western Division:

Be it remembered, That at a District Court of the United 
States of America, in and for the Western Division of the 
Eastern District of Arkansas, begun and holden on Monday, 
the 4th day of April, Anno Domini, One Thousand, Nine Hun­
dred and Twenty-one, at the United States Court Room, in the 
City of Little Rock, Arkansas, the Honorable Jacob Trieber, 
Judge presiding and holding said Court, the following pro­
ceedings were had, to-wit: on September 21st, 1921:

No. 6246.

F r a n k  M oore, Ed. H ic k s , J. E. K n o x , E d. C olem an  and  P au l
H all

vs.

E. H. D e m p s e y , Keeper of the State Penitentiary of the State
of Arkansas.

Upon reading the petition for a writ of habeas corpus 
of the above named persons, and it appearing that they claim 
to be held in the State Penitentiary of the State of Arkansas, 
by E. H. Dempsey, Keeper of said prison, to be electrocuted 
by him on Friday, the 23rd day of September, 1921; that their 
detention is in violation of their rights under the constitution 
of the United States; and it appearing from the verified peti­
tion, and exhibits thereto that there is reasonable cause for 
the granting of said writ,

It is ordered by the Court that said writ be granted, 
returnable on September 26th, 1921, at 10 o ’clock A. M., and 
the Clerk is directed to issue forthwith the writ of Habeas 
Corpus and deliver to the Marshal of the United States for 
the Eastern District of Arkansas, to be served on the said E.
H. Dempsey, Warden of the State Penitentiary of the State 
of Arkansas, or the Deputy Warden, if the said Warden can­
not be found, and also serve a copy of the writ on the Attor­
ney General of the State of Arkansas.

And on September 26th, 1921, the following proceedings 
were had, to-wit:



No. 6246.

F r a n k  M oore, Ed. H ic k s , J. E. K n o x , Ed. C o lem an  and  P au l
H a l l .

1 2 0  FRANK MOORE EX AL. VS. E. H. DEMPSEY, ETC.

vs.

E. H. D em pse y , Keeper of the State Penitentiary of the State
of Arkansas.

Comes the respondent, by J. S. Utley, Attorney General 
of the State of Arkansas, and files herein his demurrer to the 
petition for Writ of Habeas Corpus.

Which Demurrer is in words and figures as follows, 
to-wit:

In the United States District Court, Western Division of the 
Eastern District of the State of Arkansas.

P’r a n k  M oore, Ed. H ic k s , J. E. K n o x , Ed. C olem an  and P au l
H a l l , Petitioners,

vs.
E. H. D e m p s e y , Keeper of the Penitentiary o f  the State o f  

Arkansas, Respondent.

Demurrer.

Comes E. H. Dempsey, Keeper of the Penitentiary of the 
State of Arkansas, and demurs to the petition heretofore 
filed herein by PYank Moore, Ed. Hicks, J. E. Knox, Ed. Cole­
man and Pul Hall, and for cause of demurrer states that the 
said petition does not allege facts sufficient to entitle the 
petitioner to the relief prayed for in his petition.

Wherefore, respondent prays that the petition of said 
Frank Moore, Ed. Hicks, J. E. Knox, Ed. Coleman and Paul 
Hall be dismissed, and for all other general and proper relief. 

(Signed) E. H. DEMPSEY,
Keeper of the Penitentiary. 

(Signed) J. S. UTLEY,
Attorney General of the State of Arkansas.

Endorsed: Filed Sept. 26, 1921. Sid B. Redding, Clerk.

And on September 27th, 1921; the following proceed­
ings were had, to-wit:



FRANK MOORE ET Alu VS. E. H . DEMPSEY, ETC. 121

No. 6246.

F r a n k  M oore, E d. H ic k s , J. E. K n o x , E d. C olem an  and  P au l
H a l l .

■ vs.

E. H. D e m p s e y , Keeper o f  the State Penitentiary o f  the State
of Arkansas.

This cause came on to be heard, the petitioners appearing 
by Murphy, McHaney & Dunaway, and S. A. Jones, Esqs., 
and the respondent, by J. S. Utley, Attorney General of the 
State of Arkansas, and the demurrer and motion to dismiss 
the writ heretofore granted herein, and after argument of 
counsel, the Court being well and sufficiently advised in the 
premises, doth sustain the demurrer and motion to dismiss.

It is therefore ordered that said demurrer and motion 
to dismiss the writ of habeas corpus heretofore issued be and 
the same is hereby sustained and that the writ of habeas 
corpus be and the same is hereby discharged.

And on the same day the following proceedings were 
had to-wit

No. 6246.

F r an k  M oore, E d . H ic k s , J. E. K n o x , E d . C o lem an  and  P au l
H a l l .

v s .

E. H. D e m p s e y , Keeper of the State Penitentiary of the State
of Arkansas.

The above named petitioners having petitioned me for an 
appeal to the Supreme Court of the United States discharging 
the writ of habeas corpus heretofore issued and dismissing the 
petition, and having filed their assignment of errors, and the 
Court being of the opinion that there exists probable cause 
for an appeal in this cause, the appeal to the Supreme Court 
of the United States is allowed, returnable within thirty days, 
the petitioners to remain in the custody of the respondent in 
the meantime. Bond for costs on appeal is fixed at $300.00.

Which Assignment of Errors is as follows;



In the District Court of the United States for the Eastern 
District of Arkansas, Western Division.

F r a n k  M oore, Ed. H ic k s , J. E. K n o x , Ed. C olem an  and  P au l
H a l l , Petitioners,

1 2 2  FRANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.

vs.

E. H. D e m pse y , Keeper of the State Penitentiary of the State 
of Arkansas, Respondent.

Assignment of, Errors.

1. The above named petitione-s assign as errors, that the 
Court erred in holding that the facts stated in the petition 
for the writ of habeas corpus and the exhibits filed therewith 
are insufficient to entitle them to any relief.

2. That the Court erred in sustaining the demurrer to 
the petition for the writ of habeas corpus by petitioners.

(Signed) MURPHY, McHANEY & DUNAWAY, 
SCIPIO A. JONES,

Attorneys for Petitioners.

Endorsed: Filed September 27th, 1921. Sid B. Redding, 
Clerk.

Which Petition for Appeal is as follows:

In the District Court of the United States for the Eastern 
District of Arkansas, Western Division.

F ran k  M oore, Ed. H ic k s , J. E. K n o x , Ed. C olem an  and P a u l
H a l l , Petitioners,

vs.

E. H. D e m p s e y , Keeper of the State Penitentiary of the State 
of Arkansas, Respondent.

Petition for Appeal.

The above named petitioners, feeling themselves 
aggrieved by the judgment of this Court Discharging the writ 
of habeas corpus, and dismissing their petition for said writ,



FRANK MOORE £ 1  AL. VS. E. H. DEMPSEY, ETC. 1 2 3

pray an appeal to the Supreme Court of the United States 
and file herewith their assignment of errors.

(Signed) MURPHY McHANEY & DUNAWAY, 
SCIPIO A. JONES,

Attorneys for Petitioners.

Endorsed: Filed September 27th, 1921. Sid B. Redding, 
Clerk.

And on the same day the following proceedings were had, 
to-wit:

No. 6246.

F r a n k  M oore, Ed. H ic k s , J. E. K n o x , E d . C o lem an  and  P a u l
H a l l .

vs.

E. H. D e m pse y , Keeper of the State Penitentiary of the State
of Arkansas.

Come the petitioners, by Murphy, McHaney & Dunaway, 
and S. A. Jones, Esqs., their attorneys, and present to the 
Court their bond on appeal, in the sum of Three Hundred 
Dollars, with H. A. Powell and G. W. S. Ish, as sureties, 
which bond is approved by the Judge of this Court as suffi­
cient. And said Petitioners also file their citation, with serv­
ice of the same duly accepted by J. S. Utley, Attorney General 
of the State of Arkansas.

Which bond for appeal is as follows:
KnowT all men by these presents,
That we, Frank Moore, Ed. Hicks, J. E. Knox, Ed. Cole­

man and Paul Hall as principals, and H. A. Powell, and G. 
W. S. Ish, as sureties, are held and firmly bound unto E. H. 
Dempsey, as Keeper of the State Penitentiary of the State of 
Arkansas in the full and just sum of Three Hundred Dollars, 
to be paid to the said E. H. Dempsey, as Keeper of the State 
Penitentiary of the State of Arkansas, heirs, executors, 
administrators, or assigns; to which payment well and truly 
to be made, we bind ourselves, our heirs, executors, and 
administrators, jointly and severally by these presents. 
Sealed with our seals, and dated this 27th day of September, 
in the year of our Lord one thousand nine hundred and 
twenty-one.



Whereas, lately at the April term A. D. 1921, of the Cir­
cuit Court of the United States for the Western Division of 
the Eastern District of Arkansas, in a suit pending in said 
Court between Frank Moore, Ed. Hicks, J. E. Knox, Ed. 
Coleman, and Paul Hall, Petitioners, and E. H. Dempsey, 
as Keeper of the State Penitentiary of the State of Arkansas, 
Respondent, was rendered against the said Frank Moore, 
Ed. Hicks, J. E. Knox, Ed. Coleman, and Paul Hall, and the 
said Frank Moore, Ed. Hicks, J. E. Knox, Ed. Coleman, and 
Paul Hall, have obtained an appeal of the said Court to 
reverse the judgment in the aforesaid suit, and a Citation 
directed to the said E. H. Dempsey, as Keeper of the State 
Penitentiary of the State of Arkansas, citing and admonish­
ing him to be and appear in the United States Supreme Court, 
at the City of Washington, D. C., thirty days from and after 
the date of said Citation.

Now the condition of the above obligation is such, That 
if the said Frank Moore, Ed. Hicks, J. E. Knox, Ed. Cole­
man and Paul Hall, shall prosecute said appeal to effect, and 
answer all damages and costs if they fail to make good their 
plea, then the above obligation to be void, else to remain in 
full force and virtue.

Sealed and delivered in presence of
FRANK MOORE,
ED. HICKS,
J. E. KNOX,
ED. COLEMAN,
PAUL HALL,

By E. L. McHANEY, [ seal .] 
Attorney.

H. A. POWELL, [ seal .]
G. W. S. ISH, [ seal .]

Approved by
JOHN H. COTTERAL,

Judge.

Endorsed: Filed Sept. 27th, 1921. Sid B. Redding,
Clerk.

F r a n k  M oore, Ed. H ic k s , J. E. K n o x , Ed. C o lem an  and P au l
H a l l .

vs.
E. H. D e m p s e y , Keeper o f  the Arkansas State Penitentiary.

I, John H. Cotteral, the presiding judge in the above

1 2 4  FRANK MOORE ET AL. VS. E. H . DEMPSEY, ETC.



FRANK MOORE EX AL. VS. E. H . DEMPSEY, ETC. 125

entitled cause in which the petition for a writ of habeas 
corpus of the petitioners was denied, do hereby certify that 
there exists probable cause for the appeal.

Witness my hand and seal as such Judge this 27th day of 
September, A. D. 1921. JOHN H. COTTERAL,

U. S. District Judge by Assignment.

T h e  U n ited  S tates  op A m e r ic a :

To E. H. Dempsey, Keeper of the Arkansas State Penitentiary, 
Greeting:

You are hereby cited and admonished to be and appear in 
the Supreme Court of the United States thirty days from and 
after the day this Citation bears date, pursuant to a writ of 
error, filed in the Clerk’s office of the District Court of the 
United States for the Western Division of the Eastern Dis­
trict of Arkansas, wherein Frank Moore, Ed. Hicks, J. E. 
Knox, Ed. Coleman and Paul Hall are appellants, and you are 
appellee, to show cause, if any there be, why the judgment 
rendered against the said appellants, as in said appeal men­
tioned, should not be corrected, and why speedy justice should 
not be done the parties in that behalf.

Witness, the Honorable John H. Cotteral, Judge of the 
Circuit Court of the United States for the Eastern District of 
Arkansas, this 27th day of September in the year of our Lord 
one thousand nine hundred and twenty one.

JOHN H. COTTERAL,
United States District, Judge for the

Eastern District of Arkansas.

I hereby acknowledge receipt of copy of this citation on 
this Sept. 28, 1921.

J. S. UTLEY,
Attorney General of the State of Arkansas, 

Counsel for Appellee.

Filed Sept. 28th, 1921.
SID. B. REDDING, Clerk.

U n ited  S tates  op A m e r ic a ,
Eastern District of Arkansas,

Western Division:

I, Sid. B. Redding, Clerk of the District Court of the 
United States for the Eastern District of Arkansas, in the



1 2 6 ij'RANK MOORE ET AL. VS. E. H. DEMPSEY, ETC.

Eighth Circuit, hereby certify that the foregoing writings 
annexed to this certificate are true, correct and compared 
copies of the original remaining of record in my office, at 
Little Rock, Arkansas, of the Assignment of Errors, Record 
and all proceedings on the petition for writ of habeas corpus 
by Frank Moore, Ed. Hicks, J. E. Knox, Ed. Coleman, and 
Paul Hall, against E. H. Dempsey, as Keeper of the State 
Penitentiary of the State of Arkansas.

In witness whereof, I have hereunto set my hand and the 
seal of said Court, this 20th day of October in the year of our 
Lord, one Thousand Nine Hundred and Twenty-one and of the 
Independence of the United States of America, the One 
Hundred and Forty-sixth.

Attest:
[The Seal of the District Court, Western Division,

U. S. A.]
SID B. REDDING,

Clerk.

In the Supreme Court of the United States. 

No____

F r a n k  H ic k s , Appellant,

vs.

E. H. D e m p s e y , Keeper o f  the Arkansas State Penitentiary,
Appellee,

and

No____

F r a n k  M oore, Ed. H ic k s , J. E. K n o x , Ed. C olem an  and  P au l
H a l l , Appellant-,

vs.
E. H. D e m p s e y , Keeper of the Arkansas State Penitentiary,

Appellee.

Stipulation of Counsel as to Printing of Records and Con­
solidation of Causes.

We, the undersigned, counsel for appellants and appellee.



hereby agree that the above entitled causes may be submitted 
to the Honorable, the Supreme Court of the United States, 
upon the printed record in the case of Frank Moore, Ed. 
Hicks, J. E. Knox, Ed. Coleman, and Paul Hall, appellants, vs. 
E. H. Dempsey, Keeper of the Arkansas State Penitentiary, 
Appellee, and that the record in the Frank Hicks case need 
not be printed. We further agree that these causes may be 
consolidated and submitted together upon one printed record, 
as aforesaid, and briefs in said causes.

Respectfully submitted,
E. L. McHANEY,
M. E. DUNAWAY,
S. A. JONES,

Attorneys for Appellants.
J. S. UTLEY,

Attorney General, Attorney for Appellee.

[Endorsed:] File No. 28549. Supreme Court U. S., Octo­
ber Term, 1921. Term No-. 594 & 595. Frank Hicks, Appel­
lant, vs. E. H. Dempsey, Keeper of the Arkansas State Peni­
tentiary. Frank Moore et al., Appellants, vs. E. H. Dempsey, 
Keeper of the Arkansas State Penitentiary. Stipulation that 
cases be consolidated and heard on record in 595. Filed Nov. 
14, 1921.

Endorsed on cover: File No. 28550. E. Arkansas D. C. 
U. S. Term No. 595. Frank Moore, Ed. Hicks, J. E. Knox et 
al., appellants, vs. E. H. Dempsey, keeper of the Arkansas 
State penitentiary. Filed October 24th, 1921. File No. 28550.

FBANK MOOSE ET AL. VS. E. H. DEMPSEY, ETC. 127

(No. 5676.)





j&uprattp C o u rt o f  tljr 3I«ftr&  j^tatra
OCTOBER TERM, 1922 

[No. 199.]

FRANK MOORE, ED. HICKS, J. E. KNOX, e tA l.,
Appellants,

V.

E. H. DEMPSEY, K eeper of the Arkansas State 
Penitentiary.

i

APPEAL FROM THE DISTRICT COURT OF THE 
UNITED STATES FOR THE EASTERN 

DISTRICT OF ARKANSAS.

BRIEF FOR THE APPELLANTS.

MOORFIELD STOREY, 
Counsel for the Appellants.

PRESS OF GEO, H . ELLIS CO . (IN C.) BOSTON





Bixytm? (Eourt of %  Hntfrfc
OCTOBER TERM , 1922 

[N o. 199.]

FRANK MOORE, ED. HICKS, J. E. KNOX, e t A l,
Appellants,

V.

E. H. DEMPSEY, K eeper of the A rkansas State 
Penitentiary.

APPEAL FROM THE DISTRICT COURT OF THE 
UNITED STATES FOR THE EASTERN 

DISTRICT OF ARKANSAS.

BRIEF FOR THE APPELLANTS.

M O O R FIE LD  STO R EY,
Counsel for the Appellants.

BOSTON
PRESS OF GEO. H. ELLIS CO. 

(in co rpo r ate d )
1923





INDEX.

PAGES

Statement of Case ............................................................. 1-9 inc.
Assignment of E r r o r s ........................................................ 2
Origin of trouble ................................................................  2-4
Committee of Seven and its acts ..................................  4, 5
Creation of public o p in io n ...............................................  5, 6
The indictment and tr ia l .................................................... 6, 7
Influence of mob on court and jury..................................  7-9

Evidence in Record confirming Allegations of

Pe t it io n .................................................................................... 9-32 inc.
Evidence of public feeling ...............................................  9-11
Evidence that witnesses were terrorized ...........................11-14
Testimony of S m id d y ............................................................. 12-14
Testimony of J o n e s ............................................................  14
Evidence at the tr ia l................................................... .... . 14-24
Charge to the ju ry ......................................................................24-26
Motion for a new t r ia l ........................................................26, 27
State Supreme Court’s o p in io n ............................................27-32

The L a w .........................................................................  32-38 inc.

Jurisdiction of the State Supreme Court . . . .  39

Exclusion of Negroes from the Ju r ie s .....................  41





TABLE OF CASES.

PAGES

Allen v. United States, 150 U. S. 5 5 1 ................................... 30
Bucklin v. United States, 159 U. S. 682 at 686 ...............  30
Carver v. United States, 160 U. S. 553 ............................... 30
Brown v. Cummings, 7 Allen, 507 at 509 ........................... 30
Maguire v. Middlesex Railroad Company, 115 Mass. 239

at 2 4 1 .............................................................................  30
Frank v. Mangum, 237 U. S. 309 ......................................  33
Ware v. State, 146 Ark. 3 2 1 ................................................  41





Supreme Court of tjje Unite* States
OCTOBER TERM, 1922

[No. 199.]

FRANK MOORE, ED. HICKS, J. E. KNOX, et Al.,
Appellants,

v.

E. H. DEMPSEY, Keeper of the Arkansas State 
Penitentiary.

APPEAL FROM THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

STATEM EN T OF TH E CASE.

This is a petition for a writ of habeas corpus brought by- 
five citizens and residents of the State of Arkansas against 
the keeper of the Arkansas State Penitentiary (Record,
pp. 1-10).

The petitioners are Negroes who have been indicted, tried 
and convicted of murder for killing one Clinton Lee and are 
now under sentence of death. They petitioned the District 
Court of the United States for a writ of habeas corpus, but 
on demurrer to that petition the court without hearing any 
evidence on the facts sustained the demurrer and dismissed 
the petition (Record, pp. 100-101). The petitioners having 
appealed and filed an assignment of errors, the court, “ being 
of opinion that there exists probable cause for an appeal in 
this cause,”  allowed the appeal (Record, p. 102).



2

Assignment of Errors.
The appellants claim that the court erred in ruling that 

the facts stated in the petition were not sufficient to en­
title the petitioners to relief (Record, p. 102).

The petition for the writ of habeas corpus sets forth the 
case, and in stating it the historical order of events will 
be adopted, not the order in the petition.

The Origin of the Trouble.
The petitioners say “ that prior to October 1, 1919, they 

were farmers, share croppers; that nearly all the land in 
Phillips County is owned by white men; that same is rented 
out to share croppers to be tilled on shares, one half to the 
tenant and the other half to the owner; that for some years 
past there has grown up a system among the land owners 
of furnishing the negro tenants supplies on which to make 
crops and which is calculated to deprive and does deprive 
the negro tenants of all their interest in the crops pro­
duced by them; that in pursuance of this system, they 
refused to give their share croppers any itemized state­
ment of account of their indebtedness for supplies so fur­
nished, refused to let them move or sell any part of their 
crops, but themselves sell and dispose of the same at such 
prices as they please, and then give to the negroes no ac­
count thereof, pay them only such amount as they wish 
and in this way kept them down, poverty stricken and 
effectually under their control;'that for the purpose of pro­
tecting themselves, if possible against the oppressive and 
ruinous effects of this system, the negro farmers organized 
societies, with the view of uniting their financial resources 
in moral and legal measures to overcome the same, which 
fact became quickly known to the plantation owners; that 
such owners were bitterly opposed to such societies, sought 
to prevent their organization, ordered the members to dis­



3

continue their meetings and sought by every means they 
could employ to disrupt them; that on the 30th day of 
September, 1919, petitioners and other members of the 
Ratio Lodge, near Elaine, learned that some of the negro 
farmers of a near-by plantation had employed U. S. Brat­
ton, an attorney of Little Rock, Arkansas, to represent 
them in effecting a settlement for them with their land­
lords, or if he could not, to institute legal proceedings to 
protect their interests, and that either he, or his representa­
tives, would be there on the following day to meet with all 
the parties concerned, perfect the arrangements, and learn 
all the facts as far as possible, and they decided to hold a 
meeting with the view of seeing him while there, and en­
gaging him as an attorney to protect their interests; that 
accordingly they met that night at Hoop Spur Church house”  
(Record, pp. 3-4).

That while petitioners with others of their race were peace­
ably and lawfully assembled in their church with no un­
lawful object in view, and with no desire or purpose to in­
jure any one, white persons who had come in automobiles to 
break up the meeting began firing guns or pistols from the 
outside into and through the church, causing a great dis­
turbance of those assembled; that one Adkins who was in 
the attacking party was killed either by members of his own 
party or by some other person unknown to the petitioners; 
that the attacking party sent out word to the county seat 
that Adkins had been killed by Negroes, being shot down in 
cold blood while on a peaceful mission; that the reports spread 
like wildfire into other counties and into other States, nota­
bly the State of Mississippi; that early the next day a large 
number of white men “ armed themselves and rushed to the 
scene of the trouble and to adjacent regions and began the 
indiscriminate hunting, shooting and killing of negroes;”  that 
they were later joined by white men from adjacent counties 
and from the State of Mississippi, and that a great many in­
nocent Negro men and women, many of whom were pick­



4

ing cotton in the fields, were killed in cold blood; that Clin­
ton Lee was shot during the morning; that the petitioners, 
together with a large number of their race, both men and 
women, were taken to the Phillips County jail, at Helena, 
incarcerated therein, and charged with murder (Record, 
PP- 1, 2).

The Committee of Seven and its Acts.
A committee of seven composed of leading Helena busi­

ness men and officials, to-wit: Sebastian Straub, Chairman, 
H. D. Moore, County Judge, F. F. Kitchens, Sheriff, J. G. 
Knight, Mayor, E. M. Allen, J. E. Horner and T. W. Keesee, 
was selected by the municipal and county authorities 
(Record, pp. 2, 11,12), or as is stated by the committee in a 
letter to the Governor of Arkansas “ appointed by him” 
(Record, p. 71) “ for the purpose of probing into the situation 
and picking out those to be condemned to death and those to 
be condemned and sentenced to the penitentiary”  (Record, 
p. 2). That shortly after they were placed in jail, “ a mob 
was formed in the city of Helena, composed of hundreds 
of men, who marched to the county jail for the purpose 
and with the intent of lynching your petitioners and others, 
and would have done so but for the interference of United 
States soldiers and the promise of some of said committee 
and other leading officials that if the mob would stay its 
hand they would execute those found guilty in the form 
of law” (Record, p. 3). “ That said committee assumed 
charge of the matter and proceeded to have brought be­
fore them a large number of those incarcerated in jail and 
examined them regarding their own connection and the 
connection of others charged with participation in said 
trouble; that if evidence unsatisfactory to said committee 
was not given they would be sent out and certain of their 
keepers would take them to a room in the jail which was 
immediately adjoining and a part of the courthouse build­
ing where said committee was sitting, and torture them by



5

beating and whipping them with leather straps with metal 
in them, drawing the blood at every lick until the victims 
would agree to testify to anything their torturers demanded 
of them; that there was also provided in said jail, to further 
frighten and torture them, an electric chair, in which they 
would be put naked and the current turned on to shock 
and frighten them into giving damaging statements against 
themselves and others; also strangling drugs were put up 
their noses for the same purpose and by these methods 
and means false evidence was extorted from negroes to 
be used and was used against your petitioners”  (Record, 
pp. 2, 3).

The Creation of Public Opinion.
"Petitioners further say that on every day from October 

1 until after their trial on November 3, 1919, the press of 
Helena and the State of Arkansas carried inflammatory 
articles giving accounts of the trouble, which were calcu­
lated to arouse and did arouse bitter feeling against your 
petitioners and the other members of their race; that on 
October 7, 1919, the Helena World, a newspaper published 
and printed in the city of Helena, and having a wide and 
almost universal circulation throughout said county, pub­
lished an article written and given out by Mr. E. M. Allen, 
a member of said committee of seven, for and on behalf of 
said committee, purporting to give the facts concerning 
what he called 'not a race riot,’ but a ‘deliberately planned 
insurrection of the negroes against the whites,’ and al­
leges that their Union was ‘established for the purpose 
of banding negroes together for the killing of white people’ ”  
(Record, p. 3, pp. 11-14). In this he said:

"The fight at Hoop Spur was unpremeditated as far as 
the negroes were concerned as they were organizing their 
forces Wednesday morning to attack and capture Elaine 
but when runners informed the leaders that white men 
were entering the woods at Hoop Spur they decided to go



6

up and wipe out the little gang that was reported to be 
there, before entering upon the more serious task of captur­
ing Elaine. They underestimated the size of the force from 
Helena and the battle resulted.

“Every negro who joined these lodges was given to kill 
white people. Unquestionably the time for attack had 
been set but plans had not been entirely perfected and the 
shooting of the officers brought on the insurrection ahead 
of schedule. . . .

“ I have cross-examined and talked to at least one hun­
dred prisoners at Elaine. They belong to different lodges 
in that section. The stories they tell are almost identical 
as to the promises and representations made by Hill. He 
even told them probably some of the negroes would be 
called upon to die before ‘Equal rights’ would be assured, 
but they must look upon themselves as crusaders and die 
if necessary to secure the freedom of the other members of 
their race” (Record, p. 14).

An examination of the statements attributed to Hill 
shows that they were the talk of a swindler and not of a 
conspirator (Record, pp. 12-13). Mr. Allen’s statement it­
self says, “ He simply played upon the ignorance and 
superstition of a race of children”  (Record, p. 14).

The Indictment and Trial.
It is further alleged that the Circuit Court of Phillips 

County convened on October 27, 1919; “ that a grand jury 
was organized which was composed wholly of white men, 
and which included one of the committee of seven and many 
who were in the posses organized to fight the negroes; that 
during its session the petitioners and others of the prisoners 
were frequently carried before it in an effort to extract 
false incriminating admissions, and that both before and 
after they were frequently whipped, beaten and tortured; 
that those in charge had some way of learning when the 
evidence was unsatisfactory to the grand jury, and this



7

was always followed up by beating and whipping; that by 
these methods some of the negroes were forced to testify 
against the others, including two who testified against the 
petitioners;”  that on the 29th October a joint indictment 
was found against the petitioners, accusing them of the 
murder of Clinton Lee whom they had never seen or 
known; that on the 3d November, 1919, they were taken 
into court and told of the charge and that a certain law­
yer was appointed to defend them; that they were given 
no chance to employ an attorney of their own choice. 
The attorney appointed “ did not consult with them, took 
no steps to prepare for their defense, asked nothing about 
their witnesses, though there were many who knew the 
petitioners had nothing to do with the killing of Lee; that 
they were immediately placed on joint trial before an ex­
clusively white jury,”  and that only the witnesses for the 
State were called, no witnesses being called by the counsel 
for the defense; that the jury went out and in two or three 
minutes returned with the verdict of guilty of murder in the 
first degree, which was followed by a sentence to death by 
electrocution on December 27, 1919. They further say that 
the trial lasted less than an hour (Record, pp. 4, 5).

The Influence of the M ob on Court and Jury.
Petitioners further say “ that large crowds of white people 

bent on petitioners’ condemnation and death thronged the 
courthouse and grounds and streets of Helena during the 
trial of petitioners and the other negro defendants; that on 
account of the great publicity given theirs and the other 
cases, on account of their being charged with connection 
with an insurrection against the white people, and that four 
or five white men were killed, on account of the fact that 
they are negroes, and those who run the court, the Judge 
upon the bench, the sheriff, the clerk and all the jurors being 
white men, on account of the fact that it was stated and



8

widely published that the purpose of the negroes was to 
kill the whites and take their property, and on account of 
all the race prejudice which normally exists and which was 
enhanced a thousand-fold at the time, by bitterness beyond 
expression, it was impossible for them to get a fair and im­
partial trial in said court before a jury of white men; that 
the attorney appointed to defend them knew that the prej­
udice against them was such that they could not get a fair 
and impartial trial before a white jury of said county, yet he 
filed no petition for a change of venue, did not ask the court 
for time to prepare a defense, and did nothing to protect their 
interests; that the court did not ask them whether they had 
counsel, or desired to employ counsel, or were able to do so ; 
but simply said a lawyer, whom he named, would defend 
them; that they have, therefore, not had a trial, have had 
no opportunity to make a defense, but that their case was 
closed against them as virtually and effectually as if on a 
plea of guilty; that if they had been given the opportunity 
they would have employed counsel of their own choice and 
have made a defense, their ability to do so having been 
demonstrated since their conviction; that the feeling against 
petitioners was such that it overawed the Judge on the bench, 
the jury, the attorney appointed to defend them and every 
one connected with said court; that all, Judge, jury and 
counsel, were dominated by the mob spirit that was univer­
sally present in court and out, so that if any juror had had 
the courage to investigate said charge with any spirit of 
fairness, and vote for an acquittal, he himself would have 
been the victim of the mob; that, such was the intensity 
of feeling against petitioners and the other defendants, that 
had counsel for them objected to the testimony of the two 
witnesses against them, said Ward and Jefferson, on the 
ground that it was extorted by beating and torture, as they 
are advised he should have done, he himself would have 
been the victim of the mob; . . . that petitioners were igno­
rant of their rights, had never been in court before, and had



9

counsel asked them about this testimony they would have 
told him how it was obtained; that through fear of the mob 
spirit no witness was called in their behalf and they them­
selves were advised not to take the stand on their own be­
half ; that as a result of the mob domination of court, counsel 
and jury, the court, although a court of original jurisdic­
tion in felony cases, lost its jurisdiction by virtue of such 
mob domination, and the result was but an empty cere­
mony, carried through in the apparent form of law, and 
that the verdict of the jury was really a mob verdict, dic­
tated by the spirit of the mob and returned because no other 
verdict would have been tolerated, and that the judgment 
against them is, therefore, a nullity”  (Record, pp. 5-6).

This is in substance the case stated in the petition and on 
demurrer must be taken as true, but the allegations are 
abundantly sustained by other evidence.

EVIDEN CE IN RECORD C O N FIRM IN G  
ALLEGATIONS OF PETITION .

Evidence of Public Feeling.
The atmosphere which surrounded the courtroom where 

the appellants were tried is shown by the written evidence 
which is found in the record. The statement made by Allen 
for the committee of seven that the disturbance in which 
so many Negroes and a few whites were killed was a “ de­
liberately planned insurrection of the negroes against the ■ 
whites,”  that “ they were organizing their forces Wednesday 
morning to attack and capture Elaine; that unquestionably 
the time for attack had been set but plans had not been 
entirely perfected and the shooting of the officers brought 
on the insurrection ahead of time”  was published to create 
a public opinion against the Negroes. It could have had no 
other effect, but the record fails to disclose any evidence to 
support its allegations. “ The list of those the negroes plotted 
to kill on which Allen’s name was”  was never produced; nor 
were any of the other papers confiscated (Record, p. 12).



10

The letter of the committee to the Governor is proof 
positive of the feeling. In it they say:

“ With all the provocation our people refrained from mob 
violence. The reason they did this was that this committee 
gave our citizens their solemn promise that the law would 
be carried out” ;

and further that if the Governor shows mercy to the men 
convicted, it would be difficult if not impossible to pre­
vent mob violence, i.e., lynching.

There can be no question what the committee’s promise 
meant, especially when we find in the same letter:

“ There were 150 negroes legally guilty of murder in the 
first degree—actively present and assisting in the wilful and 
deliberate murder of white citizens—and this Committee 
assisted in seeing that only leaders were brought to trial” 
(Exhibit E, p. 71).

This is abundantly confirmed by the resolution adopted 
by the Richard L. Kitchens Post, American Legion, which 
contains the statement that “ when the guilty negroes were 
apprehended, a solemn promise was given by the leading 
citizens of the community, that if these guilty parties were 
not lynched, and let the law take its course, that justice 
would be done and the majesty of the law upheld.”

This is followed by a protest against any commutation of 
the sentence on the ground that the appellants and six others 
were “ ring leaders and guilty murderers”  (Exhibit H, 
Record, pp. 76, 77).

If further proof were needed, we find it in the resolution 
of the Helena Rotary Club “ attended by seventy-five 
members, representing seventy-five leading industrial and 
commercial enterprises of the city”  concurring in the resolu­
tion of the Richard L. Kitchens Post (Exhibit I, p. 78), and 
the action of the Lions Club of Helena at a meeting at­



11

tended by sixty members, representing sixty leading in­
dustrial and commercial enterprises of this city to the same 
effect (Exhibit J, p. 78).

The combined influence of such men as these insisting 
that these men were guilty and must be convicted must 
have created an atmosphere against which the court found 
it impossible to contend. The language that “ justice will 
be done and the majesty of the law upheld”  does not 
mean proceedings resulting in an acquittal. Only con­
viction followed by execution would have been regarded as 
an equivalent for lynching.

Proof that the mob was in control is found in the treat­
ment of the counsel who came from Little Rock to advise 
the Negroes, who was charged with murder, then indicted 
for barratry and finally smuggled out of town with the aid 
of the judge who presided at the trial of these petitioners 
(Record, p. 4).

Evidence that the W itnesses were Terrorized.
The fact that the committee met and terrorized the wit­

nesses by beating and otherwise in order to make them 
testify against the convicted men is not only proved by the 
testimony of the witnesses themselves (see affidavit of 
W alter W ard, Exhibit B, Record, p. 15, and affidavit of 
John Jefferson, Exhibit C, Record, p. 18), but by the 
testimony of the white men who did the beating. (See affi­
davit of T. K. Jones, Special Agent for the Missouri Pacific 
Railroad in charge of the Memphis Division and H. F. 
Smiddy, special officer employed by the Missouri Pacific 
Railroad under Mr. Jones, and later employed by the city 
of Helena as plain-clothes man, and afterward as deputy 
sheriff of Phillips County in which the town of Helena was 
situated (Record, pp. 86 to 99, both inclusive.))



12

Testimony of Smiddy.
Mr. Smiddy testifies to the condition of the church and the 

indications that it was attacked and shot into from the north, 
that they found some literature of the Farmers and Laborers 
Union, but “ nothing to indicate a criminal or unlawful 
purpose on the part of the organization”  (p. 92). He also 
testifies as to what was done on the morning of October 
1st, stating that “ a great many people from Helena and 
other portions of Phillips County and other surrounding 
counties began coming in, quite a large number of them, 
several hundred of them, and began to hunt negroes and 
shooting and killing them as they came to them.” His posse 
was composed of fifty or sixty men (Record, p. 93).

“ We began firing into the thicket from both sides, think­
ing possibly there were negroes in the thicket and we could 
run them out and kill them. . . .  I saw five or six negroes 
come out unarmed holding up their hands, some of them 
running and trying to get away. They were shot down 
and killed by members of the posse” (Record, p. 93). “ I 
did not see a single negro fire a shot. I was present when 
Jim Miller and Arthur Washington was killed and Milliken 
Giles was injured. I shot Milliken Giles myself” (Record, 
p. 93). “ He was in the edge of the thicket trying to hide. 
When I shot him he was not trying to shoot anybody and 
didn’t have a gun. . . . Arthur Washington was killed as 
he ran away from his house.”

Smiddy was there when Mr. James Tappan was killed, 
and felt

“ perfectly sure he was accidentally killed by a member 
of our own posse on the other side of the thicket from us” 
(Record, pp. 93, 94). “ I was shot in the right shoulder by a 
stray shot from some member of our posse,” and so was Mr. 
Dalzell (Record, p. 94).

Smiddy was in the automobile with Clinton Lee who 
was shot by a bullet coming from the south side. He did



13

not see anybody at the time shot was fired. A short time 
before the shot there were twenty or thirty Negroes cross­
ing the dirt road and going into the cornfield on the east 
side. “ They were running,— seemed to be scared and try­
ing to get out of the way of the white folks. I did not see 
any negro with a gun in his hand and they were in plain 
view.”  During the afternoon “ a crowd of men came into 
the vicinity of Elaine from Mississippi and began the in­
discriminate hunting down, shooting and killing of negroes. 
They shot and killed men, women and children”  who had 
no connection with the killing, and whether members of 
the Union or not (p. 95).

He describes how the Negroes were whipped and treated 
cruelly to compel them to testify: states that frequently 
during the course of whipping formaldehyde was used to 
further torture and frighten them, and describes the electric 
chair (Record, p. 96). He says, “ No negro freely and volun­
tarily testified in these cases,”  and tells how they were 
forced (Record, p. 97).

To the best of his recollection Walter Ward was whipped 
three times to make him give the testimony, and formalde­
hyde put to his nose. He says he knows that no Negro 
crossed the road south of M cC oy’s house, knelt in the road 
and fired a gun, because he was looking right at them. He 
also knows there was no loose horse between them and the 
Negroes and “ that no negro who crossed the dirt road 
down there had a gun in his hand”  (pp. 97, 98).

He was present at the trial and knows that there “ never 
was a chance for the petitioners who were defendants 
in these cases to have been acquitted. No man could have 
sat upon any jury at these trials and have voted for an ac­
quittal and continued to live in Phillips County.”  Large 
crowds attended the trial and all so far as he was able to 
observe “ were bent upon their conviction and death. If 
any prisoner by any chance had been acquitted by a jury, 
he could not have escaped the m ob”  (p. 98).



1 4

“ I do know that there were between two hundred and 
three hundred negroes killed that I saw with my own eyes. 
The only white men that I knew of that were killed were 
Atkins, Tappan, Lee, Lily and two soldiers whom I do 
not know”  (p. 99).

Testimony of Jones.
Mr. Jones in like manner testified that he saw the Negroes 

whipped, saw the formaldehyde put into their noses, that 
he helped to whip Frank Moore and J. E. Knox, that he 
probably whipped two dozen himself. He says, "So far as 
I know no negro made a voluntary statement that impli­
cated any other negro in anything criminal and I believe I 
would have known it if it had been done”  (p. 89). He says 
that while at the M cCoy house " I  saw a bunch of negroes 
cross the railroad and dirt road going east. . . .  I didn’t see 
any negro in that bunch with a gun or other weapon in his 
hand. . . .  I know positively that no negro stopped in the 
road, kneeled and made a shot or two up the road, because 
if he had done so I would have seen him as I was looking 
right at the bunch of negroes that crossed the road”  (Record,
p. 88).

The witnesses Jones and Smiddy are white men and' 
responsible. Their testimony is clear and positive, and con­
firms the statements of the petitioners in all respects. If 
these affidavits are true, the petitioners were entirely in­
nocent of the crime for which they were convicted, and no 
motive for making such affidavits, if they were false, can 
be suggested.

Evidence at the T rial.
If the only evidence in the case was the record of the trial, 

it would be clear that the appellants were not fairly tried. 
A  statement of the proceedings follows, and is perhaps 
needlessly long, but the aim has been to omit nothing 
essential.



1 5

The first witness called at the trial was R. L. Brooks, a 
white man, who testified that he was with Lee on the 1st of 
October, and that Lee was sitting in an automobile when 
he was hit by a bullet from a rifle which caused his death 
in about five minutes. Witness testified that he heard two 
bullets, and that between them there was an interval about 
as long as it would take a man to unload and reload his gun. 
The bullet came from the south. He had not the least idea 
who fired the shots, and neither heard the report of the gun 
nor saw the man who fired it (Record, pp. 28, 29).

The next witness was Dr. 0 . Parker, who testified that 
he was present when Lee was brought in and saw him die, 
but did not examine the body (Record, p. 29).

The next witness was T om Faulkner, who testified that 
he knew Clinton Lee and was fifty to one hundred feet away 
from him when he was killed; that he was then in a car in 
front of the M cCoy house with all the cars; that about the 
time the shots were fired he saw three Negroes probably three 
or four hundred yards south of the house, saw one fire two 
shots toward the car, but he did not know who the Negroes 
were and could not identify any of them (Record, pp. 30, 31).

It will be observed that he only saw three Negroes, not a 
considerable body.

The next witness was John Jefferson who testified that 
he knew the several defendants, apparently calling the ap­
pellant indicted as Ed Coleman by the name of Sweat Cole­
man. He testified that he belonged to the Farmers House­
hold and Progressive Union of which Ed Hicks was the 
president of Elaine Lodge. Said he learned that Joe Knox 
was the president of it. He knew none of the board mem­
bers other than the president, vice-president and secretary. 
Asked whether any of the men Moore, Coleman and Hall 
were leaders or not, answered, “ I knew Frank Moore was 
there, but I don ’t know whether he was a leader, nor the 
other two men you called. ”  He said that when he went to 
the lodge they had guns, and said they were “ looking for



16

them to come down and pick them up.”  “ Looking for who?”  
“ Looking for the white folks to come down there and break 
the meeting up.”  “ What did they have their guns for?”  
“ They had their guns for protection to fight with.”  First 
time he went he had no gun, and when asked what he brought 
to fight with replied that he brought nothing. He went 
to only one meeting after he joined and that was the Friday 
night before the trouble. In answer to a leading question, 
that he met Thursday night before the trouble. He knew 
Hicks, Frank Moore and Sweat Coleman were there. Did 
not see Knox or Hall there. Testified these fellows had 
guns there that night.

On Wednesday morning he went out to Frank M oore’s 
who lived opposite Sweat Coleman, the next house being 
that of Frank Hall, who was Paul Hall’s brother. Got 
there before daylight. There were forty-five or fifty scat­
tered around in the dark sitting down talking. Had guns 
of various sorts. Saw Moore, Coleman and Paul there, but 
did not see Knox and Hicks before daylight. They were 
all sitting around talking. Frank Moore was in the house. 
Asked what he saw, witness replied, “ I heard him come out 
of the house.”  He said “ they had been into it at Hoop Spur, 
and they had killed a man; he had taken a 45 automatic 
and pair of handcuffs.”  That he saw Hicks and Knox later 
in the day. All there, some over at his house, some at 
Sweat’s house, some at Paul’s house, and some around 
the bushes. About twelve or one o ’clock heard Frank 
Moore say: “ D on’t you hear that shooting? Come on, 
let’s go out there and help them people out.”

“ And everybody came up there and he paired us all up, 
put us two and two, Frank Moore, Hicks and Knox. Moore 
in front said, ‘Let’s go and help them people out in the 
shooting. Just go out there and help them out.’ Moore 
was in front, Hicks along in the middle walking along with 
the rest, Knox at the rear end. He said, ‘If anybody breaks 
ranks he was going to shoot them down.’ Paul Hall was in



17

the gang, but don’t know where he was. Sweat Coleman 
was in the gang not doing anything more than the rest of 
them, there with his gun. Never heard Sweat say any­
thing. I was near the rear not far from Ed Hicks. All of 
them had guns. We come out through the field about a 
quarter of a mile from the house and we saw this crowd of 
men. This fellow Moore stopped. Hicks said, ‘Let’s go 
across this way and cut them off.’ Asked who, he answered, 
‘These white gentlemen at this house.’ A quarter of a mile 
from the house we turned and went across the railroad. Ed 
Hicks and Frank Moore, we all went across about a quarter 
of a mile from the McCoy house, crossing the railroad. I 
saw Frank Hicks make the shots. He squatted that way, 
took aim and made two shots.”

“ What did he say?”
“ I did not hear Moore say anything. Ed Hicks was across 

the road over in the field twenty-five or thirty yards from 
the fellow that shot. Don’t know where Sweat Coleman 
wgs, but he was in the gang somewhere. Joe Knox was on 
the side of railroad fifteen or twenty yards from Hicks. Don’t 
know where Paul Hall was. After Hicks made the first 
shot he took out his gun and reloaded it, and some one in 
the gang told him not to shoot. Then he made a second 
shot. Said, ‘I would have got that guy if it had not been 
for the horse.’ There was a horse between these gentlemen 
and Hicks. After that we went on across. All split up 
after the two shots were made, some on one side of railroad 
and some on east side.”

Cross-examination.
“ Think it was about a mile from McCoy’s house where 

the shooting was done. I have been indicted for murder in 
the first degree. I told somebody this story before I went 
on the stand. Talked about it around here. I don’t know 
who told Hicks not to shoot. Never was before the grand 
jury. I gave my testimony in a room with six or seven men 
there. I did not expect to kill anybody when I went into 
the lodge. Did not join for the purpose of killing anybody.



1 8

Never made up my mind to kill anybody, don’t know when 
fellows made up their minds to kill anybody. Didn’t see 
Sweat Coleman give Hicks a gun. Didn’t come here to 
organize a lodge for killing people. Didn’t find out that 
anybody was to be killed. I heard this Hill say there was 
going to be trouble, but heard nothing said about killing 
anybody. Have not heard anybody else say there was 
going to be trouble except Hill, and heard no talk about 
killing anybody that morning” (Record, pp. 31-39 inc.).

It is to be observed that the defendant in the indictment 
is Ed Hicks, not Frank Hicks who is said to have made 
the shots (Record, p. 26).

The next witness, W alter W ard, knew the defendants 
belonged to the Union.

“ They took guns when they went to the Union. Heard 
leaders say they were looking for trouble. Ed Hicks was 
one and Hill was one. Told me Knox was vice-president. 
Paul Hall woke me up on Wednesday morning about 4.30 
and told me to go to Ed Hicks’s house. I told him I was 
sick, and he told me I had got to go, and to get my gun. 
I said it was over at old man Keys’s, and he said to go if I 
hadn’t no gun. Told me to go to Frank Moore’s house. 
I did not take a gun. Frank Moore gave me a 32 Smith & 
Wesson. Did not tell me anything until the shooting at 
Hoop Spur and then hollered 'Come on.’ Frank Moore 
and Coleman were present.”

“ Where was Knox?”
“ Knox was there somewhere, could not tell where. So 

was Paul Hall, but could not tell where. During the morn­
ing did not hear Paul Hall say anything. Heard Frank 
Moore tell some one that there had been a man killed at 
Hoop Spur, and said he wanted us to go up there. Did not 
say why. If they found a man picking cotton in the field, 
that is where they are going to kill him, right there. Sweat 
was working his gun around. All he said was, ‘I have got 
a 45-70.’ Sweat did not say what he was going to do with 
it. We went down across the field, Paul Hall in field on



1 9

one side of railroad, Coleman on other side, Knox up on 
the railroad. Frank Moore was sitting down close to Frank 
Hicks, who made two shots up the road toward Dr. Richard­
son’s house, right up the road. He shot north” (Record, 
pp. 40-43).

Cross-examination.
“ I did not have any gun. I was told to go to Ed Hicks’s 

house and wake up all on the road. No one went with me. 
I went because I was scared to go to white folks. I have 
been indicted with the bunch for some kind of murder, the 
killing of Clinton Lee. I did not shoot at him or tell any­
body else to shoot at him, or have any agreement that he 
or anybody else should be killed. There was no trouble on 
hand when Hill spoke. Never heard any members of the 
defendants or anybody else say that anybody was to be 
killed. Nobody told Frank Hicks to shoot that gun. George 
Green told him not to shoot. I ran. Started to run and 
they said: ‘Stop! Where in hell are you niggers going?’ 
We stopped. Some of us lay down in the woods, some of 
us got behind the stumps until Frank Moore said, ‘Let’s 
go.’ So far as I know the defendants have not done any­
thing to anybody. Went on across Craig’s field and went 
back on the place. Knox was with me. We were getting 
out of trouble. Stayed there until Friday and then came 
on up to Elaine and give up to Mr. Cazort. They told us 
niggers to come out of the bushes and stop cutting the fool. 
I hadn’t been doing anything, but I was scared to go where 
the white folks was at. I hadn’t done a thing. Don’t know 
as these other fellows made a shot. I woke up the president 
and told him Frank Moore sent for us to meet over to Frank 
Moore’s house. Don’t know who told us to stop running.” 

“ You thought they were going to shoot you?”
“ I know they were if I had kept going” (Record, pp. 

43-45 inc.).

Dave Archer.
“ My name is Dave Archer. Do not belong to the Union. 

Know Paul Hall, Frank Moore, Ed Hicks, Sweat Coleman



20

and J. E. Knox. On Wednesday morning when the trouble 
happened I was in the alfalfa patch right behind my house. 
About ten o’clock Ed Hicks sent out some men after the 
fellows that didn’t belong to the Union to capture them, 
and they captured me. Carried me over and put me in Ed 
Hicks’ squad over at Paul Hall’s house. I stayed there 
about an hour before I got away. Hicks was pointing out 
the way for us men to go to watch for the white people. 
He said they was going to kill the white people when they 
come down there. That is what Hicks told the men. He 
told the negroes to do that. I went down in the slough with 
them, and when we got down in the slough why I laid my 
weapon down and I says I will be back directly. I says, 
‘You watch until I come back,’ and I went on down in the 
slough and got in the field the way they carried me; and I 
went on down to Elaine, and before I got to Elaine the white 
people was coming up there. I live on Mr. Stokes’ place. 
I went on down to Elaine and told them about they had me 
and I got away; I got Mr. Slayton to bring me back to his 
house. I have not been arrested. Ed Hicks took charge of 
me. I saw Frank Moore at his house, they first carried me 
to Frank’s house.”

“ Did you hear Frank make a speech?”
“ Yes, he said he was going to do the same thing he was 

telling his men. He was going to kill all the white people 
that come down there that evening. Did not see Preacher 
Knox. Saw Sweat Coleman at his house. They carried me 
right through his yard. Didn’t hear him say anything. 
He was setting on the gallery. He hollered and said, ‘Hello, 
they have got you.’ I saw Paul at his house. They carried 
me over to Frank’s, and over to Paul’s house. Escorted me 
from one house to the other. I left when that fellow Hicks 
told them all to get in the slough. I saw Paul Hall had a 
Winchester. He said he was watching for the white folks. 
Ed Hicks and Frank Moore did most of the talking. I 
didn’t hear Sweat say anything, they didn’t let me say any­
thing to Sweat. Didn’t hear Knox say anything” (Rec- 
cord, pp. 45-47).



21

Cross-examination.

“ I have been with Mr. Stokes at Elaine three years, came 
from Modoc. Lived there about thirteen or fourteen years 
with Mr. Jim Harden. When I come from Mississippi 
over here to Modoc he was there, and I don’t know how 
long that has been. My father-in-law is Alex. Brown. I 
told Mr. Stokes just as soon as I got away. I told him who 
carried me over there, the three men, one was named Smith, 
but the other two boys, Dr. Cruise told me they was named 
Foster, but they was strangers to me. The army man carried 
me. They made me get my gun. Double-barrel shotgun, 
not loaded. I didn’t say anything. I was scared, was 
studying how to get away. Very badly frightened. I took 
good notice of what the boss men said. They were Hicks 
and Moore. Didn’t hear Knox say anything. Don’t know 
whether he did anything. Never saw his gun. That’s all I 
know, no more than what they done to me” (Record, pp. 
47-48).

J. Graham Burke.

“ Know Sweat Coleman, J. E. Knox, Ed Hicks. Don’t 
know Paul Hall. Mr. Mosby and myself had a conversation 
with them. It was an investigation we were making at that 
time. Conversation in County Judge’s office downstairs. 
I was not undertaking to commit these people to jail, or 
acting as a judge. We sent for them. They were in jail. 
We sent for them and brought them out there. Warrants 
had been issued for them, but at that time there was no 
way of getting them tried. I do not know that we advised 
these men that anything they said would be likely to be used 
against them. We just merely asked them questions and 
they either denied them or admitted them. They were 
not put on notice that we were making any investigation to 
ascertain whether they were criminally responsible. I knew 
they were under arrest, and had them brought in by an 
officer who was present. No coercion was used in talking 
to these negroes. If anybody made promises of reward I do



22

not know it. I didn’t. The statements were made volun­
tarily to me or in my presence, and no tactics were indulged 
in to cause them to make any statements through fear at 
that time or at any other time. They were not handcuffed” 
(Record, pp. 49-50).

Asked whether there was any coercion used at any time 
before they were brought before him replied:

“ Not that I know of, Judge Moore. There wasn’t any 
used in my presence.”

“ Mr. Mosby or myself asked him if he was a member 
of the Union (Sweat Coleman) and he admitted that he 
was, and we asked him when he received knowledge of the 
fact that there had been a man killed at Hoop Spur. Admit­
ted that he found it out the next morning, that he was 
either at Frank Moore’s or Paul Hall’s house, and that 
they ganged up there and after the shooting up at Hoop 
Spur they went up there with the gang. I don’t recall 
what kind of a gun he said he had, I remember he made 
the statement that he had a gun, but I don’t remember 
what kind. He made the statement that whoever it was, 
I have forgotten now who he said notified him, but in any 
way he went up to Frank Moore’s or Paul Hall’s house and 
they set around there, and different ones of them ganged 
around there until eleven or twelve o’clock when the shoot­
ing happened at Hoop Spur—the gang organized and 
went towards Dr. Richardson’s place, and when they got 
up to the railroad track Sweat told about these two shots 
being fired. I don’t recall now whether he told who it was 
that made the shots, but there was two shots made there he 
said, and they split up there and went on each side of the 
railroad, on which side of the track Sweat was I don’t re­
member what he said about that, whether he said he went 
towards Yellow Banks or on the other side of the railroad. 
He was up there and said these two shots were made. 
Knox’s statement was practically the same as Sweat’s so far 
as that point is concerned; that he went up there with the 
gang, that he got with them and went up towards Dr. 
Richardson’s. Don’t recall where he said he was when



23

these shots were made. Admitted he went up there with 
gang. Ed Hicks’ statement was about the same, that he 
was in the gang that went towards Mr. McCoy’s house; and 
after he got up there these shots were fired; that he took a 
gang of negroes and went on one side of the railroad—seems 
that the crowd split there, part followed Frank Moore 
and some went with him and went back toward Yellow 
Banks, but he admitted being in the gang that went up 
there” (Record, pp. 49-51 inc.).

At the close of this testimony the State rested. The 
defendants’ counsel offered no testimony. So far as the 
record shows, no argument was made, and as the case took 
less than an hour, including the charge, it is clear that there 
was no time for any real argument.

From this evidence it appears first that neither of the 
defendants did any shooting, and they were convicted 
upon evidence that they were present when the shots were 
fired. It was a morning when the community was greatly 
excited and Negroes were being shot indiscriminately. A 
party of them gathered together, as they naturally would, 
but there is nothing to indicate that they did it with the 
purpose of attacking anybody, or of doing more than de­
fending themselves. There was no evidence that there was 
any plan to capture Elaine or to kill white people, as was 
stated to be the fact by Mr. Allen in the public prints. 
If there had been, it would have been produced at the trial. 
There was no evidence of any illegal purpose on the part 
of the organization, although it was stated that there was 
abundant literature to show it, and a list of the persons 
who were to be killed, but none of these papers and no 
evidence of that kind was offered to the jury. There was 
no evidence of any conspiracy or intent to kill anybody. 
The nearest approach to it was a statement that one Hill 
who seems to have been, according to the statement of 
Allen, a swindler aiming to get money from the Negroes 
told them that there might be trouble.



24

There was evidence that a party not charged in the 
indictment fired two shots from a place at least half a 
mile away from the place where Lee was killed. It may or 
may not have come from the rifle of this person, but there 
was no evidence that the man who fired the shots had any 
purpose of killing anybody before he fired the shots, and 
not a particle of evidence that there was any conspiracy 
or combination to kill, or that any of the other persons 
there sympathized with his action. The only evidence on 
that point is that some one urged him not to fire another 
shot. So far as one or two of the defendants are concerned, 
there is hardly any evidence more than that they were in 
the crowd, and yet the jury convicted them of murder in 
the first degree, punishable by death, which was defined 
in the judge’s charge as murder done with malice afore­
thought, with premeditation and deliberation, and with a 
specific intent to take human life at the time the shot was 
fired (Record, p. 52).

The evidence produced at the trial may be searched 
without finding anything to warrant the verdict which 
was rendered.

The Charge to the Jury.
Thereupon the jury were charged orally very briefly. 

The charge in substance defined the various degrees of 
murder, and contained the statement that

“ malice shall be implied when no considerable provocation 
appears, or when all the circumstances of the act manifests 
an abandoned or wicked disposition. The killing being 
proven, the burden of proving circumstances of mitigation 
that justifies or excuses the homicide shall devolve upon 
the accused, unless by the proof upon the part of the prose­
cution it is sufficiently manifest that the offence amounted 
only to manslaughter, or that the accused was justified or 
excused in committing the homicide.”



2 5

The court then instructed the jury that the defendants 
were charged in the indictment with murder in the first 
degree as principals under the section of the statute which 
reads as follows: “ One who aids, assists, abets, advises
or encourages shall be deemed in law a principal, and be 
punished accordingly.”  He proceeded: “ So if you find
from the evidence in the case that the defendants were 
present at the time that Clinton Lee was killed, and that 
they, or either of them, aided, assisted, abetted, advised or 
encouraged the commission of the offense, and were present 
at the time the offense was committed, then you will find 
them guilty as charged in the indictment, and the punish­
ment is the same as the principal.”

The court instructed them as to what a reasonable doubt 
was and to give the defendants the benefit of that doubt; 
also as to the law which enabled them to fix the penalty 
of death or imprisonment if defendants were guilty of murder 
in first degree, and that they could find one of the defend­
ants guilty in the first degree, and one guilty in the second 
degree, or some of them not guilty.

He instructed the jury “ that the State was required to 
prove all the material allegations in this indictment and 
prove them beyond a reasonable doubt; that it was not a 
mere possible or imaginary doubt, but such a doubt as 
would cause a prudent man to pause or hestitate in the 
graver transactions of life, and a juror is satisfied beyond 
a reasonable doubt if from a fair and candid consideration 
of all the evidence he has an abiding conviction of the 
truth of the charge”  (Record, pp. 51-54).

There was no discussion of what the evidence was, and 
nothing to call the jury’s attention to the fact that some­
thing more than mere presence when a crime is committed 
is necessary to make a person a participant in the crime, 
nothing which would indicate to the jury that there was 
really any question as to the guilt of the accused. It was 
purely a formal charge. The jury were out less than five



2 6

minutes and returned a verdict of guilty of murder in the 
first degree against all the defendants. The defendants 
excepted to the verdict and to the instructions given to 
the jury by the court, and after that the counsel appointed 
by the court, who were Messrs. J. I. Moore and Greenfield 
Quarles, seem to have done nothing more.

On the 11th of November the defendants were sentenced 
to death by electrocution on the 27th December, 1919.

M otion for N ew  Trial.
A motion for a new trial was made on the 20th of Decem­

ber (Record, pp. 57-60) which was overruled, and the 
defendants, represented now by new attorneys, Messrs. 
Murphy, McHaney and Scipio Jones, appealed on the same 
day (Record, p. 63).

The grounds urged in the motion wTere the state of public 
feeling against the defendants, the fact that the defendants 
and witnesses were frequently subjected to torture for the 
purpose of extracting from them admissions of guilt and to 
make them testify against the defendants; that they were 
given no opportunity to consult with their friends and 
seek assistance, or informed of the charge against-them 
until after their indictment; that they were carried from 
jail to the courtroom without having been permitted to 
see or talk with an attorney or any other person in regard 
to their defense; that the court appointed counsel for the 
defendants without consulting them, or giving them an 
opportunity to employ their own counsel; that the state 
of public feeling was such that they could not have a fair 
jury; that the trial proceeded without their consulting 
withVtheir counsel or any witnesses, or being given an 
opportunity to obtain witnesses; that they were never in 
court before and were entirely ignorant of what they could 
do to defend themselves; that the trial from beginning to 
end occupied three-fourths of an hour and the verdict was



27

returned in from three to six minutes. Four of the defend­
ants say that they never had a copy of the indictment 
served upon them, one had it only forty-eight hours before 
the trial (Record, pp. 57, 58).

Another ground was that under the practice which pre­
vailed in the State only white men were summoned to sit 
on the grand jury or the jury, and that by this discrim­
ination the defendants were deprived of their rights 
under the Constitution of the United States; that they 
had no notice or knowledge of what steps they should 
take to raise this point before the trial; that the verdict 
is contrarjr to the law and evidence (Record, pp. 58, 59).

To this motion are attached two affidavits, one of Alf 
Banks, Jr., and another of William Wordlaw who testified 
to the fact that they were whipped, placed in the electric 
chair and strangled by something put in their noses to 
make them testify. These defendants did not suffer from 
what was done to these witnesses, as they did not testify 
at their trial, but their affidavits confirm the testimony of 
the others as to the treatment to which the Negroes in 
confinement were exposed (Record, pp. 60-62 inc.).

The State Supreme Court’s Opinion.
On appeal the case was argued in the Supreme Court of 

Arkansas on the 22d of March (Record, pp. 63, 64). On 
March 29th the court overruled the motion in an opinion 
found in the record (pages 64-67 inc.).

In this opinion on page 65 the court state that according 
to the affidavits filed in support of the motion the defend­
ants were members of the organization known as the 
Farmers Progressive Household Union of America, who 
held meetings from time to time for the lawful purpose 
of promoting the financial interests of its members; that 
while one of these meetings was in progress an automobile 
containing two white men and one Negro passed along the



2 8

public road and stopped some forty or fifty yards away 
from the building, “ whereupon the pickets fired into the 
car and killed one of the men in it.”

There was no testimony of this sort at the trial in this 
case, as the record shows, and the attitude of the court 
toward the case may be inferred from the fact that this 
statement appears in the opinion.

The court proceeds then to comment on the fact that a 
number of the lodge members assembled about the houses 
of the appellants about a mile from Elaine where the shoot­
ing had occurred, practically all were armed, and Moore 
made the statement that they would kill all the white 
people who came there, but this was explained by saying 
that they gathered to defend themselves against attack. 
Then the court states that on hearing firing they proceeded 
to march toward Elaine, “ Moore having said that some of 
their members were being attacked and they would go 
and help them fight”  (Record, p. 66). This goes beyond 
the testimony given at the trial (Record, pp. 39, 40, 48, 
49, 54, 55), and especially in changing M oore’s alleged 
statement from a declaration of what “ he”  intended to do 
to a statement of what “ they”  intended to do.

The opinion comments on the fact that when Hicks 
said he would shoot, one member of his party told him not 
“ to do so, but no one made any attempt to restrain him,”  
and after the shooting the party dispersed.

This certainly, even as stated by the court, is no evidence 
that the defendants, no one of whom had fired a shot, was 
guilty of murder in the first degree.

The court proceeds to say that defendants now insist 
that “ because of the incidents developed at the trial and 
those recited in the motions for new trials no fair trial was 
had or could have been had,”  and that the trial did not 
constitute due process of law, and then says:

“ It is admitted however that eminent counsel was ap­
pointed to defend appellants, and no attempt was made to



29

show that a fair and impartial trial was not had except as an 
inference from the facts stated above, the insistence being 
that a fair trial was impossible under the circumstances 
stated.

“ We are unable to say that this must necessarily have 
been the case. The trials were had according to law, the 
jury was correctly charged as to the law of the case, and the 
testimony is legally sufficient to support the verdict returned. 
We cannot therefore in the face of this assume that the trial 
was an empty ceremony conducted for the purpose only of 
appearing to comply with the requirements of law when 
they were not in fact being complied with” (Record, p. 
66) .

The opinion concludes:
“ We have given these cases the careful consideration 

which their importance required, but our consideration is 
necessarily limited to those matters which are properly 
brought before us for review, and as no error has been made 
to appear in either case the judgments must be affirmed.”

The court in dealing with the case treats the allegation 
in the motion for a new trial that the witnesses were tor­
tured to make them testify against the defendants, and all 
the other allegations which show that at the trial the court 
was surrounded by a mob determined on a verdict of guilty, 
as incidents, and say that they cannot say that a fair trial 
was “necessarily”  impossible.

It is difficult to conceive the state of mind of the court 
which would lead it to say that the torture of witnesses 
to make them give false testimony does not effect the fair­
ness of the trial, but the thing which distinguishes this 
case from the Frank case is that the Supreme Court of 
Arkansas did not pass on the question whether the allega­
tions in the motion for a new trial of violence, prejudice, tor­
ture and mob pressure on the jury were true or not. The 
court assumed that they were true, and said it did not 
follow from them that the trial was necessarily unfair.



30

This is in substance saying that the defendants must 
actually prove that the jury were influenced, must prove 
that the trial was unfair, whereas the well-established rule 
of law is that where circumstances like this are proved, 
the trial cannot stand unless it is affirmatively proved 
that it was fair, and the court will not admit such proof.

The rule has always been as stated in Allen v. United 
States, 150 U. S. 551, where speaking of a passage in the 
charge of the judge “ as the mistake might have prejudiced 
the jury, it was error.”

See also Bucklin v. United States, 159 U. S. 682, at 686, 
687, where of a mistaken charge the court said, “ This tended 
to coerce the jury into making a verdict,”  and “ as this error 
may have injuriously affected the rights of the accused, 
the judgment is reversed.”

Carver v. United States, 160 U. S. 553, where the admission 
of incompetent evidence “ may have had so important a 
bearing that its admission must be regarded as prejudicial 
error.”

Brown v. Cummings, 7 Allen, 507, 509, where speaking 
of evidence improperly admitted the court say, “ Although 
this evidence was not noticed by counsel on either side in 
addressing the jury, or by the court in instructing them, 
yet it is impossible to know that it had no effect upon their 
verdict,”  and therefore the verdict was set aside.

See also Maguire v. Middlesex Railroad Company, 115 
Mass. 239, at page 241.

These cases state the true rule, and that rule was ignored 
by the Supreme Court of Arkansas, which was content 
to deny a new trial and send these defendants to their 
death without even considering whether the allegations 
contained in the motion were true or not.

We contend that this opinion of the court shows what 
the feeling in the State was, and how indifferent the court 
was to the rights of the defendants. There was no finding



31

that the facts as to the treatment of witnesses and the 
pressure from the mob were not true. The suggestion that 
from the presence of the defendants when Hicks killed Lee 
an inference might be drawn that they aided, abetted 
or assisted him in doing so is certainly a very forced in­
ference, and goes far beyond any interpretation of the 
evidence which would make these defendants beyond a 
reasonable doubt guilty of murder with malice aforethought, 
the most serious crime known to the law. No member of 
this court or any court would feel, if he were charged with 
crime, that proceedings such as those taken in this case 
gave him a fair trial.

As to some of the defendants there is hardly evidence 
to show that they were there.

The court was asked to rehear this case by a motion filed 
April 14, 1920 (Record, pp. 69, 70), which points out that the 
assumption of the court that the petition as to the com­
position of the grand jury came too late could not be sup­
ported, because it was presented at the earliest possible op­
portunity; that the statement of the court, that certain 
facts were alleged in the affidavits supporting the motion for 
a new trial, was also unwarranted because nothing was said 
on the point in question either in the motion for a new 
trial or in affidavits supporting them.

The motion for a rehearing makes a strong appeal sup­
ported by the facts, but it was overruled on the 26th April 
1920 without any statement of reasons or any finding as 
to the facts (Record, pp. 68-70 inc.).

Subsequently an application was made to the Chancery 
Court for an injunction to restrain the sheriff from execut­
ing the prisoners and the injunction was granted, but the 
Chancery Court suspended its operation pending a deci­
sion by the Supreme Court of Arkansas as to whether it 
had jurisdiction, and after a hearing that court decided 
that the Chancery Court was without jurisdiction (Record, 
pp. 79-86 both inc.; see p. 83).



3 2

It may be noted in passing that in the opinion of the 
Supreme Court in this case the court said that no excep­
tions were taken at the trial (p. 81), the language of the 
court being, “ There were no exceptions saved during the 
progress of the trials, but the records show that counsel 
for the accused cross-examined all of the State’s witnesses 
at length”  (Record, p. 81), a statement which the record 
hardly sustains.

Both opinions of the Supreme Court show that the 
allegations of facts in the petition for habeas corpus were 
urged upon it and in neither case did the court deal with 
these allegations or find that they were not true.

TH E LAW.

The case which is presented to the court may be 
summed up as follows: A  condition of things apparently ex­
isted in Phillips County, Arkansas, which culminated in an 
attempt by white men to break up a meeting of Negroes 
in the course of which one white man was killed, but whether 
by his own party or by Negroes there is nothing to show. 
The consequence was a state of great excitement, in the 
course of which inflammatory statements were made alleg­
ing that there was a deliberate purpose on the part of the 
Negroes to attack and kill their white neighbors, which was 
readily believed though on its face it is absurd. The whites 
assembled, shot and killed the Negroes indiscriminately 
to a very large extent, and tried to lynch those that were 
arrested, but better counsels prevailed, and they were 
persuaded to abandon this purpose by an assurance given 
by leading citizens that the accused men should be dealt 
with according to law, that “ justice would be done and 
the majesty of the law upheld.”  The state of public 
opinion is shown by the statements that were printed in 
the newspapers, by the resolutions of various bodies, 
commercial and otherwise, and it is perfectly clear that the 
community demanded the conviction and execution of those



3 3

who were accused, and that nothing short of an assured 
equivalent for lynching would have prevented the mob 
from killing the prisoners.

The trial was in every respect unfair, the time occupied 
and the character of the evidence show how little effort 
was made to really determine the merits of the case. The 
public demanded victims, and the public demand over­
awed the courts with the result that these helpless and 
ignorant Negroes were convicted with a view to their 
prompt execution. Nowhere in the history of the case 
from beginning to end is there any indication that prior to 
the conviction there was any serious attempt made to 
ascertain whether the defendants were really guilty. The 
evidence on which they were convicted was manufactured, 
the witnesses were beaten and terrorized, and the record 
of the whole case shows what, if consummated, is only 
judicial murder. —

The leading case on the subject is the case of Frank v. 
Mangum, 237 U. S. 309. In that case the law is laid down 
clearly in both the majority and minority opinions of the 
court.

In the majority opinion the statement is made that 
“ the due process of law guaranteed by the Fourteenth 
Amendment has regard to substance of right, and not to 
matters of form or procedure; that it is open to the courts 
of the United States upon an application for a writ of 
habeas corpus to look beyond and inquire into the very 
substance of the matter, to the extent of deciding whether 
the prisoner has been deprived of his liberty without due 
process of law, and for this purpose to inquire into juris­
dictional facts, whether they appear upon the record or 
not; that an investigation into the case of a prisoner held 
in custody by a State on conviction of a criminal offense 
must take into consideration the entire course of proceed­
ings in the courts of the State, and not merely a single 
step in those proceedings.”

“ There is no doubt of the jurisdiction to issue the writ



34

of habeas corpus”  and “ it was the duty of the court to 
refuse the writ if it appeared from the petition itself that 
the appellant was not entitled to it.”

“ Now the obligation resting upon us, as upon the Dis­
trict Court, to look through the form and into the very 
heart and substance of the matter, applies as well to the 
averments of the petition as to the proceedings which the 
petitioner attacks. We must regard not any single clause 
or paragraph, but the entire petition, and the exhibits 
that are made a part of it.”

Later the court rejects “ the suggestion that even the 
questions of fact bearing upon the jurisdiction of the trial 
court could be conclusively determined against the prisoner 
by the decision of the state court of last resort.”

And then follows: “ We of course agree that if a trial is 
in fact dominated by a mob, so that the jury is intimidated 
and the trial judge yields, and so that there is an actual in­
terference with the course of justice, there is in that court, 
a departure from due process of law in the proper sense of 
that term. And if the State, supplying no corrective proc­
ess, carries into execution a judgment of death or imprison­
ment based upon a verdict thus produced by mob domina­
tion, the State deprives the accused of his life or liberty 
without due process of law.”

And they further say, “ We are very far from intimating 
that manifestations of public sentiment, or any other form 
of disorder, calculated to influence court or jury, are matters 
to be lightly treated.”

In the minority opinion we find the succinct statement 
that “ habeas corpus cuts through all forms and goes to the 
very tissue of the structure. It comes in from the outside, 
not in subordination to the proceedings, and although 
every form may have been preserved opens the inquiry 
whether they have been more than an empty shell. What­
ever disagreement there may be as to the scope of the phrase 
'due process of law,’ there can be no doubt that it embraces



3 5

the fundamental conception of a fair trial, with opportunity 
to be heard. M ob law does not become due process of law 
by securing the assent of a terrorized jury. We are not 
speaking of mere disorder, or mere irregularities in procedure, 
but of a case where the processes of justice are actually sub­
verted.”  Followed by the later statement: “ When the de­
cision of the question of fact is so interwoven with the de­
cision of the question of constitutional right that the one 
necessarily involves the other, the Federal court must 
examine the facts.”

As an illustration of what the court calls an extreme case 
we find in the minority opinion this statement: “ If the 
trial and the later hearing before the Supreme Court had 
taken place in the presence of an armed force known to be 
ready to shoot if the result was not the one desired, we do 
not suppose that this court would allow itself to be 
silenced by the suggestion that the record showed no flaw.” 
And the conclusion is that “ supposing the alleged facts to 
be true, we are of opinion that if they were before the 
Supreme Court it sanctioned a situation upon which the 
Courts of the United States should act, and if for any reason 
they were not before the Supreme Court, it is our duty to 
act upon them now and to declare lynch law as little valid 
when practiced by a regularly drawn jury as when adminis­
tered by one elected by a mob intent on death.”

In Frank’s case he had a trial which lasted for four weeks, 
in which he had the assistance of several attorneys. The 
ground for habeas corpus was the fact of alleged disorder in 
and about the courtroom, including manifestations of public 
sentiment hostile to the defendant sufficient to influence 
the jury. It was stated that the defendant was not in 
the courtroom when the verdict was rendered, his pres­
ence having been waived by his counsel. The question of 
whether there was disorder was heard by the trial court 
and afterward by the Supreme Court of Georgia on evi­
dence, and the finding was that the trial court was war­



86

ranted in finding that only two of the alleged manifestations 
occurred within the hearing or knowledge of the jury,— (1) 
laughter by spectators while the defense was examining one 
of its witnesses, and (2) applause by the spectators during 
a colloquy between the solicitor general and counsel for the 
accused,— whereupon, the defendant’s counsel complaining, 
the court directed that order should be maintained.

The Appellate Court ruled that the action of the trial court 
was a manifestation of the judicial disapproval, and a suf­
ficient cure for any possible harmful effect of the irregularity, 
and it was deemed sufficient by the counsel, who made no 
request for further action by the court.

Further complaint was that there was an indication of 
popular approval of a verdict of guilty while the jury was 
being polled, which was done after the jury had reached their 
verdict and were merely reaffirming it by individual decla­
ration.

The Frank case was absolutely different from the case 
which is presented here. It is hard to say that the absence 
of a prisoner at a time when a verdict is rendered invalidates 
the trial, especially when it is consented to by counsel, for 
it is in reality a mere form, and the effect of such absence may 
well be left to be dealt with by the State where the trial is 
held. Nor are expressions of feeling by spectators during 
the trial of a case, if promptly repressed by the court, a 
reason for disregarding the verdict. The questions of fact 
which were raised in Frank’s case were carefully considered 
by the Supreme Court of Georgia, and disposed of in ac­
cordance with the laws of that State, nor did they, in the 
opinion of the majority, show such mob control of the court 
as denied the defendant due process of law.

Very far different are the facts in this case. As against 
a trial lasting four weeks, and a defense by counsel heartily 
espousing the cause of their client, selected by him and 
conferring with him and giving him the opportunity to 
study his defense, we have a trial lasting about three-



37

quarters of an hour, held very shortly after the indictment, 
with no opportunity given the defendants to consult coun­
sel, with no earnest defense, with no conference between 
clients and counsel, no opportunity to summon witnesses, 
no opportunity to take the stand in their own defense, none 
of the several rights which men on trial for their lives are 
entitled to be accorded in courts of justice.

We have the whole community inflamed against the 
defendants, prepared themselves to lynch them, only 
refraining from so doing because they are assured by lead­
ing citizens that the trial should accomplish the same 
purpose, a condition of things where no man who was on 
that jury and had ventured to vote for acquittal or delay 
could have lived in Phillips County, according to the testi­
mony of one of the men who engaged in the business of 
manufacturing evidence for the State. We have false 
statements printed in the newspapers; we have society 
substantially organized to convict these people; and more 
than that, we have witnesses deliberately terrorized and 
forced on pain of death or torture to give false testimony. 
We have the testimony of the witnesses themselves that 
they were so terrorized and that their testimony was false. 
We have the testimony of the men who inflicted the tor­
ture; we have a mass of evidence which shows, if evidence 
can show anything, that the defendants never had a fair 
trial and in fact that they were innocent. As to some of 
them there is no evidence as to any act or word except 
that they were with a gang of Negroes assembled to all 
appearances for self-defense.

We have distinct evidence that all Negroes at that time 
were in danger of their lives, and that two or three hundred 
men were killed. What would be expected of human beings 
in circumstances like that? Can we ask that they lie down 
and be killed without any attempt to assemble for their 
own protection. The courts of Georgia had not before 
them all the evidence which was presented to the District



3 8

Court of the United States, and the questions which we ask 
this court to consider were never considered by those 
courts. The allegations of fact were never considered by 
the Supreme Court of Arkansas as they were by the Supreme 
Court of Georgia in the Frank case, but the opinions ap­
parently assume that they were true. This distinction 
between the cases is vital.

The statement in the opinion in reply to the claim that 
a fair trial was impossible was, "W e are unable however 
to say that this must necessarily have been the case.”  
No one dealing with the operation of another man’s mind 
can undertake to say what motives necessarily influence 
him, but all judicial action is founded upon the constant 
assumption that certain influences will produce certain 
results on human action. There can be no question 
that the citizens of Helena were determined that these 
men should be convicted, and that they manufactured 
the evidence for the purpose; and for the court to say that 
it cannot assume that the accused necessarily did not have 
a fair trial show^ clearly that the Supreme Court of Arkansas 
was itself influenced by the same feeling that influenced 
the leaders of society throughout the region where these 
tragedies occurred.

If this Court on reading this petition, these affidavits 
and this record is not satisfied that if there ever was a case 
in which habeas corpus should be granted this is the case, 
no argument of counsel will convince them, and we submit 
with confidence that either habeas corpus should be granted 
in this case or habeas corpus is not a practical remedy for 
such outrages as the evidence in this case discloses. This 
is in fact the extreme case which the minority of this court 
used as an illustration in the Frank case.



39

JURISDICTION OF THE STATE SUPREME COURT.

As bearing on the effect of the decision by the Supreme 
Court of Arkansas on the rights of the petitioners, attention 
is called to the narrow scope of that court’s jurisdiction in 
criminal cases, as defined in § 3413 of Crawford & Moses’s 
Digest of the Statutes of Arkansas:

“ A judgment of conviction shall only be reversed for the 
following errors of law to the defendant’s prejudice appearing 
upon record:

“ First. An error of the circuit court in admitting or 
rejecting important evidence.

“Second. An error in instructing, or in refusing to instruct, 
the jury.

“ Third. An error in failing to arrest the judgment.
“ Fourth. An error in allowing or disallowing a per­

emptory challenge.
“ Fifth. An error in overruling a motion for a new trial.”

The Supreme Court, that is to say, cannot reverse the 
findings of the Circuit Court upon any question of fact, 
but can set aside a conviction only if some ruling of the 
Circuit Court was wrong as matter of law. In the case 
at bar, the question whether the circumstances surrounding 
the trial were such as to render impossible a righteous ver­
dict was primarily a question of fact. Hence the Supreme 
Court could not, without exceeding its jurisdiction, reverse 
the action of the circuit court in refusing a new trial.

This is equivalent to saying that, under the laws of 
Arkansas, the only court that had jurisdiction to pass on 
the fundamental issues raised by the motion for a new 
trial was the Circuit Court of Phillips County, presided 
over by the judge before whom the trial had taken place; 
(Constitution of Arkansas, Art. VII, § 13: "The state shall 
be divided into convenient circuits, each circuit to be made



40

up of contiguous counties, for each of which circuits a 
judge shall be elected” ; Crawford & Moses’s Digest § 2206; 
“ Until otherwise provided by the general assembly the 
judicial circuits shall be composed of the following counties: 
First, White, Woodruff, St. Francis, Lee, Phillips. Second, 
Greene, Craighead,”  etc.), and upon an application made 
at the same term at which the judgment was rendered 
(Crawford & Moses’s Digest, § 3218: “ The application for 
a new trial [in a criminal case] must be made at the same 
term at which the verdict is rendered, unless the judgment 
is postponed to another term, in which case it may be 
made at any time before judgment” ). In the case at bar, 
as will be remembered, there was no postponement of 
judgment, everything possible being done to hasten the 
final disposition of the case.

The theory of the decision in Frank v. Mangum, 237 
U. S. 309, is that, in a situation like that now presented, a 
State cannot be.said to have deprived an accused person 
of life or liberty without due process of law if it has provided 
an independent tribunal for the examination of his complaint 
and this tribunal, sitting in an atmosphere free from the 
alleged disturbing elements, has held the complaint un­
founded. Arkansas, as has just been shown, has made no 
provision of this kind.

It would be preposterous to say that the requirements 
of the Fourteenth Amendment are satisfied by giving one 
seeking a new trial because the court in which he was tried 
was guilty of the grossest irregularities nothing but the 
empty right to have the facts upon which his application 
is based passed upon by the very judge whose conduct is 
complained of, and that, too, only at a time when the 
adverse influences, if they ever existed at all, must still be 
operative with all their force.



41

THE EXCLUSION OF NEGROES FROM  THE JURIES.

The fact that no Negroes were summoned to serve on 
either the grand or the petit jury, if taken in time should 
have led the court to quash the indictment.

Ware v. State, 146 Ark. 321.
The omission to make the point in time was the fault of the 
counsel appointed by the court.

M OORFIELD STOREY,
Counsel for the Appellants.





tt i msu rosw u ut +};»i* u a g garoaraM

SUPREME COURT OF THE UNITED STATES.

No. 199.— October Term, 1922.

Prank Moore, Ed. Hicks, J. E. Knox/ 
et al., Appellants, 

vs.
E. H. Dempsey, Keeper of the Arkan­

sas State Penitentiary.

[February 19, 1923.]

Mr. Justice H olmes delivered the opinion o f the Court.

This is an appeal from an order of the District Court for the 
Eastern District of Arkansas dismissing a writ of habeas corpus  
upon demurrer, the presiding judge certifying that there was prob­
able cause for allowing the appeal. There were two cases origin­
ally, but by agreement they were consolidated into one. The ap­
pellants are five negroes who were convicted of murder in the first 
degree and sentenced to death by the Court of the State of A r­
kansas. The ground of the petition for the writ is that the pro­
ceedings in the State Court, although a trial in form, were only a 
form, and that the appellants were hurried to conviction under the 
pressure of a mob without any regard for their rights and without 
according to them due process of law.

The case stated by the petition is as follows, and it will be under­
stood that while we put it in narrative form, we are not affirming 
the facts to he as stated but only what we must take them to be, as 
they are admitted by the demurrer: On the night of September 
30, 1919, a number of colored people assembled in their church 
were attacked and fired upon by a body of white men, and in 
the disturbance that followed a White man was killed. The re­
port of the killing caused great excitement and was followed by 
the hunting down and shooting of many negroes and also by the 
killing on October 1 of one Clinton Lee, a white man, for whose 
murder the petitioners were indicted. They seem to have-been ar­
rested with many others on the same day. The petitioners say that

Appeal from the District 
Court of the United 
States for the Eastern 
District of Arkansas.



2 M oore  et al. vs. D e m p se y .

Lee must have been killed by other whites, but that we leave on-one 
side as what we have to deal with is not the petitioners’ innocence 
or guilt but solely the question whether their constitutional rights 
have been preserved. They say that their meeting was to employ 
counsel for protection against extortions practiced upon them by 
the landowners and that the landowners tried to prevent their 
effort, but that again we pass by as not directly bearing upon the 
trial. It should be mentioned however that 0 .  S. Bratton, a son of 
the counsel who is said to have been contemplated and who took 
part in the argument here, arriving for consultation on October 1, 
is said to have barely escaped being mobbed; that he was arrested 
and confined during the month on a charge of murder and on Oc­
tober 31 was indicted for barratry, but later in the day was told 
that he would be discharged but that he must leave secretly by a 
closed automobile to take the train at W est Helena, four miles 
away, to avoid being mobbed. It is alleged that the judge of the 
Court in which the petitioners were tried facilitated the departure 
and went with Bratton to see him safely off.

A  Committee of Seven was appointed by the Governor in regard 
to what the committee called the ‘ insurrection’ in the county. The 
newspapers daily published inflammatory articles. On the 7th 
a statement by one of the committee was made public to the effect 
that the present trouble was “ a deliberately planned insurrection 
of the negroes against the whites, directed by an organization known 
as the ‘ Progressive Farmers’ and Household Union of America’ 
established for the purpose of banding negroes together for the 
killing of white people” . According to the statement the organi­
zation was started by a swindler to get money from the blacks.

Shortly after the arrest of the petitioners a mob marched to the 
jail for the purpose of lynching them but were prevented by the 
presence of United States troops and the promise of some of the 
Committee of Seven and other leading officials that if the mob 
would refrain, as the petition puts it, they would execute those 
found guilty in the form of law. The Committee’s own statement 
was that the reason that the people refrained from mob violence 
was “ that this Committee gave our citizens their solemn promise 
that the law would be carried out.”  According to affidavits of 
two white men and the colored witnesses on whose testimony the 
petitioners were convicted, produced by the petitioners since the 
last decision of the Supreme Court hereafter mentioned, the Com­



3

mittee made good their promise by calling colored witnesses and 
having them whipped and tortured until they would say what was 
wanted, among them being the two relied on to prove the petition­
ers’ guilt. However this may he, a grand jury of white men was 
organized on October 27 with one of the Committee of Seven and, it 
is alleged, with many of a posse organized to fight the blacks, upon 
it, and on the morning of the 29th the indictment was returned. On 
November 3 the petitioners were brought into Court, informed that 
a certain lawyer was appointed their counsel and were placed on 
trial before a white jury— blacks being systematically excluded 
from both grand and petit juries. The Court and neighborhood 
were thronged with an adverse crowd that threatened the most dan­
gerous consequences to anyone interfering with the desired result. 
The counsel did not venture to demand delay or a change of venue, 
to challenge a juryman or to ask for separate trials. He had had 
no preliminary consultation with the accused, called no witnesses 
for the defence although they could have been produced, and did 
not put the defendants on the stand. The trial lasted about three- 
quarters of an hour and in less than five minutes the jury brought 
in a verdict of guilty of murder in the first degree. According 
to the allegations and affidavits there never was a chance for the 
petitioners to be acquitted; no juryman could have voted for an 
acquittal and continued to live in Phillips County and if any pris­
oner by any chance had been acquitted by a jury he could not have 
escaped the mob.

The averments as to the prejudice by which the trial was en­
vironed have some corroboration in appeals to the Governor, about 
a year later, earnestly urging him not to interfere with the execution 
of the petitioners. One came from five members of the Committee of 
Seven, and stated in addition to what has been quoted heretofore 
that “ all our citizens are of the opinion that the law should take 
its course. ’ ’ Another from a part of the American Legion protests 
against a contemplated commutation of the sentence of four of the 
petitioners and repeats that a “ solemn promise was given by the 
leading citizens of the community that if the guilty parties were 
not lynched, and let the law take its course, that justice would be 
done and the majesty of the law upheld. ’ ’ A  meeting of the Helena 
Rotary Club attended by members representing, as it said, seventy- 
five of the leading industrial and commercial enterprises of Helena,

M oore et al. vs. D e m p se y .



4 M oore  et al. vs. D e m p se y .

passed a resolution approving and supporting the action of the 
American Legion post. The Lions Club of Helena at a meeting 
attended by members said to represent sixty of the leading indus­
trial and commercial enterprises of the city passed a resolution to 
the same effect. In May of the same year, a trial of six other ne­
groes was coming on and it was represented to the Governor by the 
white citizens and officials of Phillips County that in all probability 
those negroes would be lynched. It is alleged that in order to 
appease the mob spirit and in a measure secure the safety of the 
six the Governor fixed the date for the execution of the petitioners 
at June 10, 1921, but that the execution was stayed by proceedings 
in Court; we presume the proceedings before the Chancellor to 
which we shall advert.

In F ra n k  v. M a n g u m , 237 U. S. 309, 335, it was recognized of 
course that if in fact a trial is dominated by a mob so that there is 
an actual interference with the course of justice, there is a de­
parture from due process of law; and that “ if the State, supply­
ing no corrective process, carries into execution a judgment of 
death or imprisonment based upon a verdict thus produced by 
mob domination, the State deprives the accused of his life or lib­
erty without due process of law.”  W e assume in accordance with 
that case that the corrective process supplied by the State may 
be so adequate that interference by habeas corpu s ought not to be 
allowed. It certainly is true that mere mistakes of law in the 
course of a trial are not to be corrected in that way. But if the 
case is that the whole proceeding is a mask— that counsel, jury 
and judge were swept to the fatal end by an irresistible wave of 
public passion, and that the State Courts failed to correct the 
wrong, neither perfection in the machinery for correction nor the 
possibility that the trial court and counsel saw no other way of 
avoiding an immediate outbreak of the mob can prevent this Court 
from securing to the petitioners their constitutional rights.

In this case a motion for a new trial on the ground alleged in 
this petition was overruled and upon exceptions and appeal to the 
Supreme Court the judgment was affirmed. The Supreme Court 
said that the complaint of discrimination against petitioners by the 
exclusion of colored men from the jury came too late and by way 
of answer to the objection that no fair trial could be had in the cir­
cumstances, stated that it could not say ‘ that this must necessarily



M oore et al. vs. D e m p se y . 5

have been the case ’ ; that eminent counsel was appointed to defend 
the petitioners, that the trial was had according to law, the jury  
correctly charged, and the testimony legally sufficient. On June 8, 
1921, two days before the date fixed for their execution, a petition 
for habeas corpus was presented to the Chancellor and he issued 
the writ and an injunction against the execution of the petitioners; 
but the Supreme Court of the State held that the Chancellor had 
no jurisdiction under the state law whatever might be the law of 
the United States. The present petition perhaps was suggested by 
the language of the Court: “ W hat the result would be of an ap­
plication to a Federal Court we need not inquire.”  It was pre­
sented to the District Court on September 21. W e shall not say 
more concerning the corrective process afforded to the petitioners 
than that it does not seem to us sufficient to allow a Judge of the 
United States to escape the duty of examining the facts for himself 
when if true as alleged they make the trial absolutely void. W e  
have confined the statement to facts admitted by the demurrer. 
W e will not say that they cannot be met, but it appears to us un­
avoidable that the District Judge should find whether the facts, 
alleged are true and whether they can be explained so far as to 
leave the state proceedings undisturbed.

Order reversed. The case to stand for 
hearing before the District Court.

A  true copy.

Test:

Clerk, Supreme Court, U. S.



-



SUPREME COURT OF THE UNITED STATES

No. 199.— October T erm, 1922.

Frank Moore, Ed. Hicks, J. E. Knox,' 
et al., Appellants,

vs. I
E. H. Dempsey, keeper of the Arkan­

sas State Penitentiary.

Appeal from  
Court of 
States for 
District of

the District 
the United 
the Eastern 
Arkansas.

[February 19, 1923.]

Mr. Justice M cR eynolds, dissenting.

W e are asked to overrule the judgment of the District Court 
discharging a writ of habeas, corpu s by means of which five negroes 
sought to escape electrocution for the murder of Clinton Lee. Sec. 
753 Rev. Stat.* They were convicted and sentenced in the Circuit 
Court of Phillips County, Arkansas, two years before the writ 
issued. The petition for the writ was supported by affidavits of 
these five ignorant men whose lives were at stake, the ex parte 
affidavits of three other negroes who had pleaded guilty and were 
then confined in the penitentiary under sentences for the same 
murder, and the affidavits of two white men— low villains accord­
ing to their own admissions. It should be remembered that to 
narrate the allegations of the petition is but to repeat statements 
from these sources. Considering all the circumstances— the course

*Tke writ o f h a b ea s c o r p u s  shall in no ease extend to a prisoner in jail, 
unless where he is in custody under or by color o f the authority o f the United 
States, or is committed for trial before some court thereof; or is in custody 
for an act done or omitted in pursuance o f a law o f the United States, or of 
an order, process, or decree o f a court or judge thereof; or is in custody in 
violation o f the Constitution or o f a law or treaty o f the United States; or, 
being a subject or citizen o f a foreign state, and domiciled therein, is in 
custody for an act done or omitted under any alleged right, title, authority, 
privilege, protection, or exemption claimed under the commission, or order, or 
sanction o f any foreign state, or under color thereof, the validity and effect 
whereof depend upon the law o f nations; or unless it is necessary to bring 
the prisoner into court to testify.



2 M o o re  et al. vs. D e m p se y .

of the cause in the state courts and upon application here for 
certiorari, etc.,— the District Court held the alleged facts insuf­
ficient prim a facie  to show nullity of the original judgment.

The matter is one of gravity. I f  every man convicted of crime 
in a state court may thereafter resort to the federal court and by 
swearing, as advised, that certain allegations of fact tending to 
impeach his trial are “ true to the best of his knowledge and be­
lief,’ ’ and thereby obtain as of right further review, another way 
has been added to a list already unfortunately long to prevent 
prompt punishment. The delays incident to enforcement of our 
criminal laws have become a national scandal and give serious 
alarm to those who observe. Wrongly to decide the present cause 
probably will produce very unfortunate consequences.

In F ra n k  v. M a n g u m , 237 U. S. 309, 325, 326, 327, 329, 335, 
after great consideration a majority of this Court approved the 
doctrine which should be applied here. The doctrine is right and 
wholesome. I can not agree now to put it aside and substitute the 
views expressed by the minority of the Court in that cause.

Much of the opinion in the F ra n k  case might be repeated here 
if emphasis were necessary. It will suffice to quote a few para­
graphs ; but fully to understand the whole should be read.

In dealing with these contentions, we should have in mind 
the nature and extent of the duty that is imposed upon a 
Federal court on application for the writ of habeas corpus  
under section 753, Rev. Stat. Under the terms of that sec­
tion, in order to entitle the present appellant to the relief 
sought, it must appear that he is held in custody in violation 
of the Constitution of the United States. Rogers v . Peck, 199 
U. S. 425, 434. Moreover, if he is held in custody by reason 
of his conviction upon a criminal charge before a court having 
plenary jurisdiction over the subject-matter or offense, the 
place where it was committed, and the person of the prisoner, 
it results from the nature of the writ itself that he cannot 
have relief on habeas corpu s. Mere errors in point of law, 
however serious, committed by a criminal court in the exercise 
of its jurisdiction over a ease properly subject to its cognizance, 
cannot be reviewed by habeas corpu s. That writ cannot be 
employed as a substitute for the writ of error. . .

As to the “ due process of law”  that is required by the Four­
teenth Amendment, it is perfectly well settled that a criminal 
prosecution in the courts of a State, based upon a law not in 
itself repugnant to the Federal Constitution, and conducted 
according to the settled course of judicial proceedings as estab-



3

lished 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 
competent jurisdiction, according to established modes of pro­
cedure, is “ due process”  in the constitutional sense. . . .

It is, therefore, conceded by counsel for appellant that in 
the present case we may not review irregularities or erroneous 
rulings upon the trial, however serious, and that the writ of 
habeas corpu s will lie only in case the judgment under which 
the prisoner is detained is shown to be absolutely void for want 
of jurisdiction in the court that pronounced it, either because 
such jurisdiction was absent at the beginning or because it was 
lost in the course of the proceedings. . . .

But it would be clearly erroneous to confine the inquiry to 
the proceedings and judgment of the trial court. The laws of 
the State of Georgia (as will appear from decisions elsewhere 
cited), provide for an appeal in criminal cases to the Supreme 
Court of that state upon divers grounds, including such as 
those upon which it is here asserted that the trial court was 
lacking in jurisdiction. . . .

It follows as a logical consequence that where, as here, a 
criminal prosecution has proceeded through all the courts of 
the State, including the appellate as well as the trial court, 
the result of the appellate review cannot be ignored when 
afterwards the prisoner applies for his release on the ground 
of a deprivation of Federal rights sufficient to oust the State 
of its jurisdiction to proceed to judgment and execution against 
him. This is not a mere matter of comity, as seems to be sup­
posed. The rule stands upon a much higher plane, for it 
arises out of the very nature and ground of the inquiry into 
the proceedings of the state tribunals, and touches closely 
upon the relations between the state and the Federal govern­
ments. As was declared by this court in E x parte Royall, 117 
U. S. 241, 252— applying in a habeas corpu s  case what was 
said in Coveil v . Heyman, 111 U. S. 176, 182, a case of con­
flict of jurisdiction:— “ The forbearance which courts of co­
ordinate jurisdiction, administered under a single system, exer­
cise towards each other, whereby conflicts are avoided, by 
avoiding interference with the process of each other, is a 
principle of comity, with perhaps no higher sanction than the 
utility which comes from concord; but between state courts 
and those of the United States it is something more. It is a 
principle of right and of law, and, therefore, of necessity.”  
And see In re Tyler, Petitioner, 149 U. S. 164, 186.

W e of course agree that if a trial is in fact dominated by 
a mob, so that the jury is intimidated and the trial judge 
yields, and so that there is an actual interference with the 
course of justice, there is, in that court, a departure from due

M oore et al. vs. D e m p se y .



4 M oore  et al. vs. D e m p se y .

process of law in the proper sense of that term. And if the 
State, supplying no corrective process, carries into execution 
a judgment of death or imprisonment based upon a verdict 
thus produced by mob domination, the State deprives the ac­
cused of his life or liberty without due process of law.

But the State may supply such corrective process as to it 
seems proper. Georgia has adopted the familiar procedure of 
a motion for a new trial followed by an appeal to its Supreme 
Court, not confined to the mere record of conviction but going 
at large, and upon evidence adduced outside of that record, 
into the question whether the processes of justice have been 
interfered with in the trial court. Repeated instances are re­
ported of verdicts and judgments set aside and new trials 
granted for disorder or mob violence interfering with the 
prisoner’s right to a fair trial. Myers v . State, 97 Georgia 
7 6 (5 ), 99 ; Collier v. State, 115 Georgia, 803.

Let us consider with some detail what was presented to the 
court below.

There was the complete record of the cause in the state courts 
— trial and Supreme— showing no irregularity. After indictment 
the defendants were arraigned for trial and eminent counsel ap­
pointed to defend them. He cross-examined the witnesses, made 
exceptions and evidently was careful to preserve a full and com­
plete transcript of the proceedings. The trial was unusually short 
but there is nothing in the record to indicate that it was illegally 
hastened. November 3, 1919, the jury returned a verdict of 
“ g u ilty ;”  November 11th the defendants were sentenced to be 
executed on December 27th; December 20th new counsel chosen 
by them or their friends moved for a new trial and supported the 
motion by affidavits of defendants and two other negroes who de­
clared they testified falsely because of torture. This motion ques­
tioned the validity of the conviction upon the very grounds now 
advanced— torture, prejudice, mob domination, failure of counsel 
to protect interests, etc. It is thus summarized by counsel for ap­
pellants—

The grounds urged in the motion were the state of public 
feeling against the defendants, the fact that the defendants 
and witnesses were frequently subjected to torture for the 
purpose of extracting from them admissions of guilt and to 
make them testify against the defendants; that they were 
given no opportunity to consult with their friends and seek 
assistance, or informed of the charge against them until after 
their indictment; that they were carried from jail to the court-



M oore et al. vs. D e m p se y . 5

room without having been permitted to see or talk with an 
attorney or any other person in regard to their defense; that 
the court appointed counsel for the defendants without con­
sulting them, or giving them an opportunity to employ their 
own counsel; that the state of public feeling was such that 
they could not have a fair ju ry ; that the trial proceeded 
without their consulting with their counsel or any witnesses, 
or being given an opportunity to obtain witnesses; that they 
were never in court before and were entirely ignorant of what 
they could do to defend themselves; that the trial from be­
ginning to end occupied three-fourths of an hour and the ver­
dict was returned in from three to six minutes. Four of the 
defendants say that they never had a copy of the indictment 
served upon them, one had it only forty-eight hours before the 
trial.

Another ground was that under the practice which prevailed 
in the State only white men were summoned to sit on the 
grand jury or the jury, and that by this discrimination the 
defendants were deprived of their rights under the Constitu­
tion of the United States; that they had no notice or knowl­
edge of what steps they should take to raise this point before 
the trial; that the verdict is contrary to the law and evidence.

To this motion are attached two affidavits, one of A lf Banks, 
Jr., and another of William Wordlaw who testified to the fact 
that they were whipped, placed in the electric chair and 
strangled by something put in their noses to make them testify. 
These defendants did not suffer from what was done to these 
witnesses, as they did not testify at their trial, but their af­
fidavits confirm the testimony of the others as to the treatment 
to which the Negroes in confinement were exposed.

A  new trial having been denied, an appeal was granted to the 
State Supreme Court and sixty days allowed for preparing bill of 
exceptions; March 22, 1920, this appeal was argued orally and by 
briefs; March 29th the court announced its opinion, reviewed the 
proceedings and affirmed the judgment. H ick s  v. S ta te , 143 Ark. 
158. A  petition for rehearing was presented April 19th and over­
ruled April 26th.

A  petition for certiorari filed in this Court May 24, 1920, with 
the record of proceedings in the state courts, set forth in detail 
the very grounds of complaint now before us. It was presented 
October 5th, denied October 11th, 1920.

April 29, 1921, the Governor directed execution of the defend­
ants on June 10th. June 8th the Chancery Court of Pulaski 
County granted them a writ of habeas co rp u s;  on June 20th the



6 M oore  et al. vs. D e m p se y .

State Supreme Court held that the Chancery Court lacked juris­
diction and prohibited further proceedings. S ta te  v. M artin eau , 
149 Ark. 237. August 4th a justice of this Court denied writ of 
error. Thereupon, the Governor fixed September 23rd for execu­
tion. On September 21st the present habeas corpu s proceeding 
began, and since then the matter has been in the courts.

It appears that during September, 1919, bloody conflicts took place 
between whites and blacks in Phillips County, Arkansas— “ The 
Elaine Riot.”  Many negroes and some whites were killed. A  com­
mittee of seven prominent white men was chosen to direct opera­
tions in putting down the so-called insurrection and conduct inves­
tigation with a view of discovering and punishing the guilty. This 
committee published a statement, certainly not intemperate, about 
October 7th, wherein they stated the “ ignorance and superstition 
of a race of children ’ ’ was played upon for gain by a black swindler, 
and told of an organization to attack the whites. It urged all per­
sons white or black, in possession of information which might assist 
in discovering those responsible for the insurrection, to confer with 
it, upon the understanding that such action would be for the public 
safety and informant’s identity carefully safeguarded. I find 
nothing in this statement which counsels lawlessness or indicates 
more than an honest effort by upstanding men to meet the grave 
situation.

It is true that in October, 1920, almost a year after the trial here 
under consideration, the American Legion post at Helena— approxi­
mately three hundred ex-service white men— made protest to the 
Governor against commutation of the sentences. It is copied in 
the margin as printed in the record.* The Helena Rotary Club,

RESO LU TIO N .
It has been brought to the attention o f the Richard L. Kitchens Post, No. 

31, American Legion, Helena, Arkansas, that the Governor is contemplating 
commuting the sentence o f four o f the negroes, who are now under death 
sentences for their participation in the Elaine Riot, to lesser sentences, 
and we, the members o f this Post, feel that any action toward this end 
by the Governor would do more harm in the community and breed law­
lessness, as well as disregard for constituted authority, as at the time of this 
race riot the members o f  this Post were called upon to go to Hoop Spur and 
Elaine to protect life and property, and in compliance with this request, there 
were two American Legion members killed and one seriously injured, besides 
the other non-members who also perished, and when the guilty negroes were 
apprehended, a solemn promise was given by the leading citizens of the eom-



M oore et al. vs. D e m p se y . 7

November 10, 1920, expressed emphatic approval of this protest, 
and the Lion’s Club took like action. These resolutions are not vio­
lent and certainly do not establish the theory that defendants’ con­
viction in November, 1919— a year before— was an empty form and 
utterly void ; nor, as the petition recklessly alleges, do they ‘ ‘ further 
and conclusively show the existence of the mob spirit prevailing 
among all the white people of Phillips County at the time petitioners 
and the other defendants were put through the form of trials and 
show that the only reason the mob stayed its hand, the only reason 
they were not lynched was that the leading citizens of the com­
munity made a solemn promise to the mob that they should be 
executed in the form of law.”

The Supreme Court of the State twice reversed the conviction of 
other negroes charged with committing murder during the disorders 
of September, 1919. The first opinion came down on the very day 
upon which the judgment against petitioners was affirmed, and 
held the verdict so defective that no judgment could be entered 
upon it. The second directed a reversal because the trial court 
had refused to hear evidence on the motion to set aside the regular

munity, that i f  these guilty parties were not lynched, and let the law take its 
course, that justice would he done and the majesty o f the law upheld.

The twelve negroes now under sentence o f death, but whose sentences are 
suspended— account o f court procedure, and six o f these negroes cases h a v e -  
taken to the Supreme Court of the United States, which court declined to 
review. The other six cases, whose original trials were reversed and new trials 
given them, were convicted, and their cases were appealed to the Supreme Court 
o f  the State and attorneys of their own selection were permitted to handle 
their cases.

Now therefore be it resolved by this Post assembled on this the 19th day 
o f October, 1920, that we most earnestly protest against the commutation of 
any o f the sentences o f these twelve negroes convicted o f murder in the Elaine 
riot o f October 1919, their having received a fair trial and— proven guilty, and 
the leniency o f the court was shown in the balance o f the cases tried, these 
being the ring leaders and guilty murderers, and that law and order will be 
vindicated and a solemn promise kept.

Be it further resolved that a committee o f four be appointed by the Post 
Commander. This Committee is hereby empowered to represent this Post at 
a conference, or several conferences, with the Governor o f Arkansas and to 
take such steps as they may deem necessary to carry out the_ wishes o f this 
resolution and leaving nothing undone to have these sentences carried out. 
This committee to report in full to the next meeting o f this Post.

Passed unanimously 8.30 P. M. October 19, 1920, basement o f the Episcopal 
Church, Helena, Arkansas.



8 M oore  et al. vs. D e m p se y .

panel of the petit jury. B a n ks  v. S ta te , 143 Ark. 154; W a re  v. 
S ta te , 146 Ark. 321. The Supreme Court, as well as the trial court, 
considered the claims of petitioners set forth by trusted counsel in 
the motion for a new trial. This court denied a petition for cer­
tiorari wherein the facts and circumstances now relied upon were 
set out with great detail. Years have passed since they were con­
victed of an atrocious crime. Certainly they have not been rushed 
towards the death chair; on the contrary there has been long delay 
and some impatience over the result is not unnatural. The recent 
execution of assassins in England within thirty days of the crime, 
affords a striking contrast.

W ith all those things before him, I am unable to say that the 
District Judge, acquainted with local conditions, erred when he 
held the petition for the writ of habeas corpu s insufficient. His 
duty was to consider the whole case and decide whether there ap­
peared to be substantial reason for further proceedings.

Under the disclosed circumstances I cannot agree that the solemn 
adjudications by courts of a great State, which this Court has re­
fused to review, can be successfully impeached by the mere ex  parte  
affidavits made upon information and belief of ignorant convicts 
joined by two white men— confessedly atrocious criminals. The 
fact that petitioners are poor and ignorant and black naturally 
arouses sympathy; but that does not release us from enforcing 
principles which are essential to the orderly operation of our fed­
eral system.

I am authorized to say that Mr. Justice Sutherland concurs in 
this dissent.









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