West Virginia, A-D, 1805-1995, Undated

a

: ba is f ‘ay Ceo nagwhs 6/2 5/ os
SLCKNER, Willie, white 23, hanged OWASP (Kanawha) 6/25/1937
Sho? shoved “> § —

a “Heivering.- fi 2 —— , ——t
uuy 1 autre. . Time Not Set "

| | . Warden C. FY McClintic had not

| r 7 ust announced yet last night the exact
| CC ne time that Beckner will be taken to
|

ithe platform. Members of the fam-

: 1 . oht jily had arranged to return the body
| Die onl ‘. ‘to the Johnson-Cunningham mortu-
|
|

ait ‘ary here immediately after claim-
ue 25 NP 37 :

Spe ‘ing it at Moundsvile.

d to Pay With Life | Beckner was sentenced on June
Doomet to. Farmer; | 24 of last. year by the late Judge S.
For. Killing me | Collett Littlepage after a Kanawha
Mother Is ill | intermediate court jury had found
oh “the gal- the boy guilty of the ambush slay-
willie Beckner will £0 + ast visit ing of ae ee farmer on

awa tonight ubbaseoaie is confined 1¢ prece ng May 6. ,
with his mother a to make the He -originally was sentenced to

} .

die on Aug. 6 of last year, but both

ndsville trip. , Gov. Kump and Gov. Holt granted’
Mou Frog Creck farm. him stays of execution to permit

ear old f
! is ote die for the Bae ace, preparation of appeals, The su-
_you | ged Sissonville f% and preme court refused to hear his

. 7 a ° °
CF aan, n ighbors, frien al to appeal, and as a last resort, neigh-
«€ ¢ .

to her bed, too

ad cartl fi- bors petitioned the governor for '
ate supreme court and, commutation of the. sentence to life |
aire to Gov. Holt. imprisonment, Counsel, in the |
né ’ |

,; er, Richard Beck- meantime, asked for a mental ex- |

Only Shale ane Archie cane amination of the youth. Five: state
ner, and sisi¢ ‘ston, will see t doctors examined him week ago
- uy and sald. he showed no “eyidence |
he penitentiary of “peychosis,” and. Gov, Holt for- | |
lows. They w mally refused Tuesday night to “ine |

i the gal i morning : ey)

Moundsville early | this, at home i with the verdict et the
"hi heir ¢ ‘ $ i
WIN the stricken mother.

(sAzetTE
Bbatistn I, be

bas [1937

acelin.


om

Appeal
y oung farmhat

i
oN,

For Achibudh S aying
Of Aged Neighbor

une 25.—(M—
-year-old farm
tonight at the
state penitentiary for the ambush
ee of "Cy"/ Page, his 60-year-
old|neighbor at Frog Creck, Ka-
nawha county), The trap was sprung
at B:44 p. “(Eastern Standard
Time), *

Beckner
religion
fountain/.

MOUNDSVILLE,
Willie Beckneér, 2
hand, was hange

sought consolation in
nd was. baptized in a
in the prison yard this
mornin by Rev.: F. W.. Gisler.
prisrm chaplain. Before going to
the gallows he ate a fried chicken

nee ,

Whe: execution followed Gov,
Hélt’s refusal to extend clemency.
The supreme pee had denied an
for: al new trial on the
‘id's plea of insanity.

Page was ambushed while return-

ing to his home after a day's work |

in the fields. May 6, 1938.
killed by a shotgun charge.

State police ‘arrested Beckner and
quoted him as saying he had gone
to Page’s -house in search of money.
He/| didn't find any, but took his
neighbor's shotgun and waited be-
sid¢ a path for Page to come home.

eckner was sentenced: to die
last] July, but former Gov. Kump
gra ted ‘two. stays of cxecutfion
while the case was taken to the su-
preme court.

One hundred and
farmer-neighbors of the young man
petitioned Gov. Holt for clemency,
but! a board. of psychiatrists CX-
pressed the apinion ‘that Beckner
was sane. | °

He was

eighty-four

a ee

“In the record of the trial,”” the
governor said, “the admissions of
‘Beckner, freely Riven, show beyond
question the commission of first de-
gree murder ‘by lying in wait and
deliberate shooting x x x. I am|.

ey

(Please Turn to Page 2, Col. 7

Beckner Pays | With
Life on Gallows}

(Continued from Page 1) .

moved not to interfere with the
verdict of the jury and sentence of
the court %° X. ix.”

Walks With Firm Step

At His request Beckner walked
to the gallows ahead of the prison
guard, unessist ed and’ with>a tirm
step. |

Hefote. leaving his! cell tor the
last time he sang, “When Our Lord

Shall Come Again.”

As he reached the gallows, Dr.
C. F. McClintic, warden at the state
penitentiary, asked Beckner if he
had anything to say.

“No, |I reckon not,” he drawled.
The guards placed the black mask

‘over his head and then, just before

the trdp was sprung, he said:

“f do want to say goodbye to you
all." |

Prison attendants said he was the
first white man they had seen hang-
ed in years who hadi nat paled as
he teached the gallows.


%

1A)

ae (>. fs, ~} Ns ! ‘
acleston Yearly Pere

INPAGE DEATH

HANG BECKNER

res pie 2)

Body Returned to City
_for Funeral Rites,

. Set for Sunday ~~

' “The body of Willie Beckner, . 29,
who’ éxpiatec the murder of ‘a Poca
district neighbor on the allows at
the state penitentiary ‘Friday night,
was held Saturday at the Johnson
and Cunningham mortuary,
Last rites, !t was said gt the mor-
tuary, will be held Sunday at 2- p..
m, at the Beckner home on Frog
creek, which is near tht‘ scene of
the ambush slaying of J. S. (Cy)
Page, 60, for which Beckner paid
with his life, 4 !
Everett C. Cunningham, a mem-
ber of the undertaking firm, accom-
panied by a brother and two ‘sisters
of Beckner, returned to Char!-ston
from Moundsville at 2 a.m, Satur-
ay. 3 Re re
ai Dies In 10 Minutes.

8:44 p.m. E. S. T., Friday night and
Drs. R. A. Ashworth and Q, P. W:l-
son, prison physicians,. pronounced
Beckner dead 10 minutes later,

The gallows’ trap was ‘sprung at:

(Continued on Page 12, Column 8)

(Continued from Page One)

Deputy Warden. C, M. Stone ex.
pressed surprise at Beckner’s “wone
derful- recovery”, asserting the pris.
oner had been in a state of collapse
early this week when he iwas taken
tq the deathhouse, Tes oe

But Beckner, who. became religi-
ous during the long fight! to escape
the death sentence, sang symns Fri-
day and ate a hearty dinner of fried
chicken, At his request he walked.
to the gallaws-ahead of the prison

step, : Hee | =
Before leaving his cell for the last
timé he sang, “When Our

Come Again.” -: |

| pley:

guard, unassisteds and with a firm —

Lord Shall

F, McClintic, warden at ‘the state

penitentiary, asked Beckner. if ‘he
had any last wordy, -

, a do want to say goodbye to you:
a ds . . ; 7
Prison attendants said h was the
first white man they had. seen
hanged in years who had not paled
as he reached the gallows,! ‘.
Governor Holt. had. refused exec.
utive clemency and _the | supreme

court: denied an appeal fdr a new.

trial on the prisoner's pléa‘of ine’:
sanity, ae <P leat
Beckner was baptized in a founs
tain in the prison yard Friday:
morning by Rev, F, w’ Sigler, pris.
on chaplain, ae | mie dg be
Rev. Hobson Fisher and |Rev. W, .
Cadle will officiate at) the fus
neral and burial‘ will be jn the fame
lly cemetery near the home, |
.. Surviving:-are . his. widow, ' Mr,
Bessie Beckner; three so , Frank,
Donald and Hubert, . al] at home;
four brothers, Hamsford Beckner, of
Charleston; ‘Arlie, James and: Dans.
lel, at home; five sisters, Mrg. Archie
Casto, of Charleston: Mrs. Sylvia
Cobb, of Sissonville, and ‘Wilma, Atus
dra and Pauline Beckner, at home, |
and the parents, Mr. and Mrs. Vole.
Beckner. ; Sr a

Day Maire

CAa Ko shou " [a
Sune 251957

As he reached the gallows, Dr. Cig


BERKELE Va 0
JEFFERSON
LEAVE LL) G2WcERD

29 || $057


BRAGG,

Hugh

THE WEST VIRGINIA

““%. HILLBILI

Tf V hs

West Virginia

ISSN 0043-3241

(We OS bster) l= 30- 1920.

Vol. 24 — No. 24 — June 11, 1983 — Summersville, W. Va. 26651-0

Murder In The

Vebster Mountains

Defense Counsel Claimed Client
Didn’t Have Leg To Stand On

By Roger Beverage
and Harry Lynch
Hugh Bragg was a solitary
ung man, known but not
derstood. Crippled at the age
7 when a train accident
noved both feet, he led a non-
cript life, although some
cgation were made that he
is Of dubious character.
On January 12, 1920, John
-nnis Morton, a well respected
puty sheriff of Webster
vunty and father of three
ildren, had received a warrant
om neighboring Nicholas
sunty which he was to serve
1 Hugh Bragg, who was an ac-
,aintance — some claim friend
- of Morton. Bragg was charg-
1 with passing a bad check in
© amount of $500 to a car
-aler in Summersville.
Morton spotted Bragg in
vwen, and made the arrest in
vutine fashion. While walking
» the street on the way to the
il, Hugh Bragg requested that
be allowed to stop by his
ter’s home to gather some ad-
ional clothing. Morton turn-
around to look for someone
get the articles of clothing for
agg, dropping his guard.
agg drew a gun, shooting
‘puty Morton two times, one
llet hitting him over the left
: and the other entering the
ht lung. Hugh Bragg fled the
ne, limping on his cork legs
his sister’s house.
The wounded Morton was
“en to the Central Hotel in
‘wen, and a physician was
mmoned. The doctor cared
: Morton for three hours at
‘ hotel before ordering him
nuoved to his home. At ap-
ximately 5:00 p.m. the same
, some four hours after the
voting, Deputy John Morton
d from gunshot wounds.’
rhe constable at Cowen ap-
vached the residence where
igg had taken refuge, and
s informed that he too would
kifled if he did not leave.
turning, the constable
hered several volunteers who
eed to storm the house.
‘hin minutes Bragg was in
tody, and no other shots

were fired.

Several questions were raised
as to how Bragg could have con-
cealed a weapon from Deputy
Morton. One answer was that
Morton and Bragg were friends,
and the Deputy did not think it

necessary to search Bragg.

Another version was that Hugh
Bragg had hidden the pistol in
one of his cork legs.

The public thinking quickly
turned, however, from ‘‘how’’
it happened to revenge.

Deputy John Morton had
been in law enforcement in
Webster County for almost four
years. Through the perfor-
mance of his job and the way he
conducted his personal life, he
had become an extremely
popular person. When word
spread of his murder, people in
ivwth Wehster and Nicholas
Coun: be ‘gun gathering to seek
reiributic’ Plans were made to
spirit Bicyg to the jail in
Webster Springs if the crowd
could not be controlled.

One attempt on the life of
Hugh Bragg was recorded, and
that by Pearl Morton, a
brother. Pearl was understand-
ably upset over the death of his
brother, and decided to take the
law in his own hands, but a
Higher Power intervened, at
least according to a story hand-
ed down by family.

Pearl Morton lived with his"

mother, Nannie Bobbitt Mor-
ton, at the time of the killing.
Angered, he went to his home to
get a weapon to kill Hugh
Bragg, who was to be
transported from Cowen to
Camden-on-Gauley via train.
Mrs. Morton tried to dissuade

_ her son, but her efforts were of

no avail. Pearl stormed out of
the house heading for Camden-
on-Gauley bent on revenge.
~Lillian Morton, daughter of
Nannie and a sister of Pearl and
John Morton, thought she
heard her mother talking to
someone in the next room,
which surprised her since she
had seen her brother Pearl
leave. There was no one else in
the house.

She listened more closely, and

Hugh Bragg posed for these photos prior i

discovered that her mother was
praying aloud. Nannie Morton
was asking God not to allow her
son to kill Hugh Bragg, but to
let the law handle the matter.

_ When Pearl Morton arrived
at the train station at Camden-
on-Gauley, he approached
Bragg from the outside of the
train. He pointed the pistol at
Bragg, pulling the trigger five
times. Each time it failed to fire.
Pearl was then subdued by
several men and the gun was
taken from him.

The pistol was examined and
no reason could be found for its
not firing. Then the gun was
tested. It fired and discharged
Properly each time. Nannie
Morton was convinced that God
had answered her prayers.

After this incident with Pearl
Morton at Camden-on-Gauley,
Hugh Bragg was transported to
Webster Springs where he was

incarcerated in the county jail. .

The trial began on January 23,
1920 and the first four days
were taken up in jury selection.
Bragg was represented by Judge
H. C. Thurmond and E. L.
Cutlip, well-known attorneys in
the area with an_ excellent
reputation. Attorneys for the
State were J. S. Cogar, State
Senator; E. H. Morton; W. L.
Wooddell and John H. Hoover,

(Continued On Page 17)

WOME:: or a

A project of the *

mission and Humanitie
Virginia and the Wes
Foundation.

Harriet
1880.

By Dorothy Uptoa Davis

A wave of revivalistic fer-
vor swept northcentral West
Virginia just prior to World
War I and continued well into
the 1920’s. Evangelists held
mass meetings in tents, sessions
**protracted’’ to last as long as

the fervor remained high. The |

most spectacular of the revivals
in the history of Harrison
County occurred in 1915, when’
at the Hamilton Tabernacle in
Point Comfort services con-
tinued in a tent for weeks in the
spring. The theater of this event
helped keep enthusiasm high:
on May 25, 1915, a special train
carried people from Salem,
fourteen miles west of
Clarksburg, to attend the
m -eting; on May 29, 1915,
vusinesses in the ¢ity of
Clarksburg closed at 5:00 p.m.
in order that workers might

|


as

. €.

Murder

(Continued From Front Page)

Webster County Prosecuting
Attorney. During the trial, the
courthouse was packed to full
capacity with friends and
relatives of Deputy Morton.
There was a noticeable absence
of anyone there to support Mr.
Bragg, although there was some
indication his girlfriend from
Cowen did attend the trial.

The State presented a total of
28 witnesses, while the defense
did not present anyone. The last
witness for the State was B. S.
Wooddell, County Deputy
Assessor, who testified that
when Bragg was brought to the
county jail he stated his age was
21 years as of August 4, 1919.

During the trial, the defense
was going to put Mr. Bragg on
the stand but later decided it
would not be to their advan-
tage. The defense took only 15
minutes to summarize their
case. Judge Thurmond
presented to the jury that there
were only two questions before
them. First, they could place
Hugh Bragg in prison for life or
give him the death penalty. The
summarization for the prosecu-
tion began at 10:00 a.m. and
lasted until 3:30 p.m. on
January 27, 1920. The attorneys
drew upon their personal ties
and the knowledge they had of
the Morton family to paint a
picture of how cold blooded
and injust the murder was of
Deputy John Morton. The case
weit to the jury at 3:30 p.m.
and it took them 20 minutes to
make their decision; Hugh
Bragg was guilty of murder in
the Ist degree of John Dennis
Morton.

The jury did not recommend
mercy. Therefore, the sentence
would be death. Judge W. S.
O’Brien asked Hugh Bragg if he
had any reason why the Court
should not impose sentence and
the reply was a distainful ‘‘no!”’
Judge O’Brien then gave the
following sentence.

“The act which you have
committed was from the per-
sonal standpoint the more
atrocious, because it was un-
provoked. You killed a man
who did you no harm either by
word or act. From the com-
munity standpoint, your act is
most deplorable because your
victim was a husband and
father, and a useful man in the
activities of the social and
business life.

“From the standpoint of
organized society, the depravity
of your act is aggravated to the
extreme, in, that you with
premeditation and with malice
aforethought, willfully killed an
officer of the law in the orderly
performance of official duty.

“The evidence shows that
you deliberately arrayed
yourself against the law’s en-
forcement, and in your wicked
resistance, and with a heart
fatally bent on mischief, murder
was the result.

“The law of the land must be
vindicated in such manner as,
that men who see or hear of this
terrible and wicked deed will
know that it is not in vengeance
through frenzy of mob violence,
but by way of the calm,
deliberate regular, and orderly
processes of the law of the land,
through the medium of its con-
stituted courts of justice com-
mensurate punishments will cer-
tainly overtake and be meted
out to the transgressor of the
law.

**You have had a fair and im-
partial trial. A jury of your
countrymen have, by their
solemn verdict, found you guil-
ty of murder in the first degree,
but they, the jury, have not add-
ed to their verdict, a further fin-
ding that you shall be punished
with confinement in the
penitentiary during your life.
Therefore, in accordance with
the verdict and the command of
the law of the land, this court
finds that you be punished with
death.

‘It is therefore, considered
by the court that you be con-
veyed to the penitentiary of
West Virginia and that on the
second day of April 1920, you
be then and there hanged until
you are dead.

‘*And the warden and deputy
of the penitentiary of the state
of West Virginia are command-
ed to carry out the sentence of
this court in manner and form
as the law provides.

‘And, Hugh J. Bragg, in this
awful hour, I adjure and beg of
you to seek forgiveness for your
great sin and make your peace
with our God.”’

During the time Hugh Bragg
was incarcerated prior to his ex-
ecution, he remained calm and
appeared to have accepted his
fate. No one ever really knew
the reason Hugh Bragg
murdered Deputy Morton. The
charge of passing a worthless
check would certainly not war-
rant such an action. According
to several of John Morton’s
descendants, Nannie Morton
visited Bragg while he was still
in Webster County Jail. She
asked him why he had killed her
son. Bragg replied that he had
to kill someone that day and the
person he killed was his best
friend.

Hugh Bragg was not executed
on April 2, 1920 as ordered but
received a reprieve from the
Governor. On April 30, 1920 at
5:30 p.m., Hugh Bragg was
hanged at the WV Penitentiary
at Moundsville. Five people
from Nicholas and Webster
Counties were present to
witness the execution. David
Callaghan, a‘close friend of the
family and John Morton’s
brothers, William E. Morton,
George Morton, Pearl Morton
and Kennedy Morton.

One hundred ten days (110)
after Hugh Bragg took the life
of John Morton, his life was
taken in partial payment by the
State of West Virginia.

'
\

McCausland

(Continued From Page 11)

tions established a new church
at Palestine.

“Forest Nibert, Ashton, W.
Va., says that Uncle Jeff was
home on leave when neighbors
reported him to the local Union
homeguard. Grandpa Nibert, a
small boy at the time, was sent
to warn Hunter. Uncle Jeff
went to another neighbor who
had a large family with four or
more small children sleeping in
the same bed, their heads at
each end of the bed with their
feet in the middle of the bed.
They put uncle Jeff at the
children’s feet and completely
covered him. The homeguard
came in the room but didn’t pull
the covers off the bed and
didn’t find him.

‘Uncle Jeff told of looting a
keg of cider when Mc-
Causland’s troops were besieg-
ing Chambersburg, Pa., and
taking it to some woodland on a
hill near their bivouc area. He
then went into camp for his tin-
cup and for his buddies. They
opened the keg, filled their cups,
and found to their dismay that
the keg contained vinegar so
sour that it chocked them.

‘*‘My father and John Mc-
Causland attended Buffalo
Academy, Putnam Co., when
they were boys.’”’

e e
Fairchild
(Coatinued From Page 14)
temporary slowdown in the coal

industry.”’

In a related announcement,
Jack R. Fairchild stated that
Fairchild was also recently nam-
ed the exclusive sales agent for
the substantial amount of idled
underground mining equipment
from five mines of Slab Fork
Coal Company of Raleigh
County, West Virginia.:

®
Rish

Rish Equipment Company,
headquartered in Bluefield,
West Virginia, has been ap-
pointed the distributor for
Komatsu America Corporation
in most of the state of West
Virginia, according to Martin
Dotson, Vice President and
General Manager. The appoint-
ment was effective May 28th.

Rish will be one of the first
full line Komatsu distributors in
the United States. A key benefit
of this arrangement for the
customer is the ability to single
source vital product support for

-each of the models available.

The branch operations in the
West Virginia cities of St.
Albans, Bluefield, Beckley and
Parkersburg will serve as sales
and service outlets for Komatsu
products. Rish will offer
Komatsu products including
crawler dozers, crawler loaders,
off-highway trucks, hydraulic
excavators, rubber-tired loaders
and motor graders.

Rish Equipment Company is

‘a wholly owned subsidiary of

Bluefield Supply Company,
Bluefield, West Virginia.

THE WEST ViRG)

TIN
I wantta talk
Jist a little wi
] wish You cc
And let me se

You looked s
ture
Ahangin’ on |
You mustta b
And they saic

I jist wantta

. Anyway I cai

Cause in sc
Washingto
Abe Lincoln,

But I bet You
That ever live
And I jist wai
When I grow”

Them boards
They said it ¢
And they sai
Jist cause I v

I won’t git If
If You’ll let §
Pll mind ang
And I'll do

Last night mg
Cause him a
And Mom we
And he said,

Mom said, ‘
I’ll have Ma
You know I’
Not since I t

1 forgot abo
He moved a
We play anc
And his Mos

He took me;
And showet:
That’s wher}
Ahangin’ o1

His Mom sa
And that Y«
I wouldn’t ¢
If l hadn’t s

that tree.

“ae

Well, I’m g'
And there a
I'll talk to ‘
Now don’t


men live too long, this man died too
soon. In the midst of his
usefulness, where manhood's morning
almost touches noon, and while the
shadows were still falling toward
the west...while yet in love with
life...he passed to silent and
patheticen dust ." tRer. 4.1 C.. Jarvis

(Morton's photo and the eulogy were

provided by his grandson, Thomas
Morton, a Deputy Sheriff in San
Diego County, CA).

ON THE DEATH OF DENNIS MORTON

Nineteen and twenty the first and fourth
Sad news from Cowen came

That Dennis Morton had been shot
Through his lung and brain.

From Camden where his family live
The auto tried to fly

To bring his mother, wife and friends
Before the Sheriff die.

They found their loved one lying thus
Upon his dying bed;

Unconscious there mid tears and Brey St
His noble spirit fled.

They bore his lifeless body home
Upon the evening train

Amidst a host of weeping friends
Two nights he did remain.

His darling wife was all to him
That loving wife could be

Their home had been a happy place
And children they had three.

In business circles he stood high
And met with good success,

If friends in life mean anything
This man was surely blest.

The people came for miles around
Their last respect to pay,

Black's Chapel could not seat the crowd
That gathered their that ‘day.

The Preacher prayed to God on High
To loose his stammering tongue.

The message came in God's dear name
And hearts did melt in one.

Each one bid the deceased goodbye
While tears showered from their eyes,

And by his father he was layed-
In that great day shall rise.

Hugh Bragg, the wretch who shot.him down
At Webster Springs was tried,

The courtroom was completely packed-
All that could get inside.

Twelve jurors heard the evidence
The State's side did produce

The strongest moral man could give-
And every word was truth.

The jurors passed into the room-
No one allowed to see.’

They found Hugh Bragg had murdered him
And in the first degree.

The Honorable Judge has passed on him
His Majesty has said,

The fourth and second Hugh J. Bragg

Snall hang by the neck till dead.

By W.A. Thomas of Erbacon, WV, In the
vebster (WV) Echo, date unknown.
* * &€* & HH & & HN HH &F HH KH HR HR * * *
LEMA NEWS is published by the Law
Enforcement Memorial Association,
Inc. at least twice yearly. Address
is P.O. Box 72835, Roselle, IL 60172

NEW SECRETARY ELECTED

“We are pleased to announce the

election of Mr. S. Ronald Hauri, a
security manager for AMOCO
Corporation as the new secretary.
AMOCO has been a financial supporter
of LEMA for several years and Ron
will provide valuable assistance in
the attainment of our mission.

* *# © © & & & HH HH H H H HH HH KH KH KH

WYATT EARP LIVES ON!!

Jul 19-23, Western Outlaw/Lawman History
Association meets in Tucson with full day
trip to Tombstone. Registration $95. Call
406/363-0246 to register.


BRAGG, Hugh, white, hanged WVSP

LEMA

(Webster) April 30, 1920

NEWS

Official Publication of the Law Enforcement Memorial Association,
Number XI

Copyright 1995

Inc.

May 15, 1995

POLICE MEMORIAL DAY TO BE OBSERVED

FLAGS SHOULD BE FLOWN AT HALF-STAFF

On October 1, 1962, President
John F. Kennedy signed into law,
H.J. resolution 730, designating May
15 as Peace Officers Memorial Day.
This is in honor of the Federal,
State, and municipal officers who
have been killed or disabled in the
line of duty.

The resolution also designates
the calendar week in which May 15

falls as Police Week. Throughout
the country, law enforcement
agencies host various public
awareness activities, as .weldl..:as

memorial parades and ceremonies.

- that

In 1994, the crime bill passed
by Congress included a provision
requires the U.S. flag to be
flown at half-staff on May 15. Rep.
John Edward Porter authored the
amendment, stating,"It is certainly
appropriate that activities include
the lowering of our flags to show
our deepest respect for those
officers who have made the ultimate
sacrifice." Please ensure that your
local government officials are aware
of this requirement. We also
encourage all private businesses,
law enforcement agencies and private

citizens to do likewise.
ee * Ke Re He KH KH KH HH HH KH KH KF KF KR *

JOHN DENNIS MORTON

FEBRUARY 8, 18S7-JANUARY 12, 1920
Pictured at left is Deputy
Sheriff John Morton, Webster County
(WV), murdered in the line of duty
on January 12, 1920. Morton was 4
lumberman in addition to a lawman.
Married, He was survived by wife
Alice and 3 children. Another child,
Ruth, was born 4 months after his
death. He was killed while arresting
Hugh Bragg, whom he failed to
search, being a trusting Morton. The
community was so upset there was a
threat of lynching, but John's
cousins prevented the unlawful act.
Bragg was later convicted and
executed for the crime. Morton's 4
brothers witnessed the execution.
The crime for which "Dennis" was
arresting Bragg was for passing a
worthless check for $500. The
eulogy for Morton included, "he
walked in our midst as a man...some
(continued page two, column 1)


Originally published in 1874
by A. G. Brown & Co., Publishers, Boston

Reprinted 1970 by

Negro Universities Press

A DIvIsIon oF GREENWOoopD Press, Inc.
NEw York

SBN 8371-2856-0

®@ PRINTED IN UNITED STATES OF AMERICA

AFTER
obtainab]

scantiness

race. Hi
ful accow
concealin:

Several
brief, ow;
mation in

have beer

Cambri

Rc

'
|

‘one of intention. In this work,’ not

~The wrong I have dons has uct been’

man’s bleed rests upon my hands
had ne partin the death of thos
were killed atthbe Ferry. My, ord
were to remove the arms: eer,

guard them there.
the very letter, 1 was ang
what was the cause of ioe
Ferry, and es quick as Ly could
out vielating the orders. Larade
hurried on to learn. “a
brave comrades surrdandé
fired upon from every ite;
to draw the fire of a\pal 7
nents upon myself; and Re
tried iny best to disnov¥ Ci
save them, but. I’ tould! ;
with a heavy. hearts *
dest doy of my. difesae
there were more:
were brothora.’' tp
_ Whatever: may D
you will bear it wi
miasion. We ah
man dies but once. ‘
my fate, then you must bé
its guard apd. guides: ou
‘Tove the bein of) his}
bedtode dl worsh Bos ce

ie

Ye

be we ‘« VRpre VUVaA os chan a sola ge

"Capt. Joby +; Cog, Who an
ci'ed ‘at Chas les iow? youterdayy: 49.”
dressed tho pepfalnedterttg tt.9 bie fi (5
and litle eon: Tho man who coule
write such a letter could not have =
eatirely dce tituto of all the good traits
of humen nature.

N CuHaRLestown Jaix, (Va)
Nov. 6, 3859.
My Evcr Dear Wire asp Sox: A
cungeon bar confines me, a prisoner 8
cel! is mine. Yet there arero bars to

that can shut.up the gushing tounigip.

confine the immortal mind, and no cell

o! urdying love. Distance can not part
the twining tendrils. of affection, nor
can t'me sever the go'den links of that.
clernal chain which bicds my th obaing:
heart to my life’s partner and my child,
The lve I cherrished for yvu in my
hours of treedem, Las grown deeper and
stronger while gazing through my pris-.
on bars, Alone, within my’ cé!l’ tay’
heart is cver turniug to the fond mems¢
lorics of its love! ones; recalling from
'meamory’s history of life, all» the deaye
| words, the ioviog acts, and kindly smilesiz
‘of shove whose deep sige here. Ab:

| along tLe pathway of my lite. -
And tryht upon my memory now
i their luved faces beaming But, .
camid them all, thine own ja bednrfirgl
j Lrightest, with cur dear child. injuge iy
| xrms, Words huve no power to.telIQhea
| Fleeny athownd depth of that love |
for iny dea rbuy and thee, Nog ba
| power tu teil my deep regret. forg
haretor unceatte word I eve
thee, And the tnetnory of

ls! fur every el ry
unventl: word, I humblyag
Nera, And I feel and \:
, devotion apd thy love; ¥
Forgive. my einai <2!
| give, and love me. auill,.
a prisoner's chains.

Yon knew thatin ene

companions, and whish. had x
| prizoner, that 1 was actuat ed‘ WY:
‘the ten fifppet feelings of symp pa thy! :.

j humanity. 1 had been Jed to Believe,
| as hid my comradev, that it ‘was tho”

daily prayer and the life-wish of ‘the

masses of the slaves forfreedom. That
they were groaning beneath the yoke of
oppressicn, with no hand to aid them, or

poiut them tothe light of freedom, I

knew how dearmy own freedom was to
'me,and every sympathy of my heart was

‘aroused for tnem. It hed been repre-

, Sented to me and my comrades that when

once the Banner of Freedom ‘should be

raiscc, they would flock to it. by thou
, Gatids; ‘and ‘hut their echoing shouts of
freedoin would bo borne by the breeze
toour raost Sviithern shore, to tell of |
freedom there, I gave heart and baad to

/& work which I deemed a noble and a

holy cause, The result has proved that |
we were deceived; thatthe masses of
the sluves did not wish fer freedom.—
There was no rallying Leneath our ban-
ner. We were left to meet the conflict
all alone, to dare, and do. and die,--
Twelve of my comrades are sleeping
now with tre dump mold over them,
and five are inmates of these prison walls.

We have been deceived, but found out
our error when too late. Those who
are cead, dicd like brave men, theugh
mistaken. ‘Those who still live will
not shame, I trust, their comrades who
are gone, It they, too, must die, I hope
they will meot itina way that will
prove them worthy ofa better fate. Let
‘not the world judge them too harshly for
Whatever wrong they have done, for
they but crred upon the side of sympa- '

|
|
|

!

thy and love, It was an error of their | §
judgments eninge of their hearts. Bra= | Bid:

ver men never Ined; truer ones to. their
plighted word never were banded together.’
Let the vailof charity be dropped over. |
their errors. Remember them only for'|
their Sportan couraye, and their ely ‘a,
their} leader. fs

What may be my fate I know. ‘not
but whatever it may be, I trust that
may meet it as a brave man shovld=
flinchingly. Tnere is but one
that makes me waver, and that+
remembrance of the ties that:

my father and mother, bra
sisters. Did not theee. He
could neet my doom, whats
be, withcut a murmur.’ ‘Bate
I think of you ard my % Cay
heartiswung ith agon
words to tell my feelin; gs.$
of the terrible grief that tb rf
on all who have loved mé
sowell, Thoughts. lik Pid
down the spirit thats.
meet whatever doom‘ nig he

for me, withofft a Ture
It is o fearful struggle - of ;
hope. Wore I alone in the wal Pet atl
none to whom this. blow would. be. a!
thunder-siroko of agony, I: -conld mect, it”
calmly,and my soul, with no ain. of ins
tention upon ifs robes, could gaze un-
inoved upon the scaffold ar the tamh

Nashville, TN Dec. 17, 18§9

GAZETTE,

CNN

yO


ewe G a

(IN

i THE

| RISING SON;

THE ANTECEDENTS AND ADVANCEMENT

| OF THE COLORED RACE.

BY

WM. WELLS BROWN, M. D.

AUTHOR OF ‘‘SKETCHES OF PLACES AND PEOPLE ABROAD,” ‘THE
BLAOK MAN,” ‘‘ THE NEGRO IN THE REBELLION,”
‘* OLOTELLE,” ETO.

N
Ok

NEGRO UNIVERSITIES PRESS
NEW YORK


M

Claw end of hammer reveals horror 'The bush shrouded home of the J. E. Millers was tempting bait to a man who
story for Detective Lieut. Paden. made his living from such places. He cut screen in window to gain entry.

lenied ever seeing it.

iuspect without suc-
ind all proved fruit-
yptimistic as he sent
nost recent inform-

b Shy reached the
a man sprint across
ignored their shout-
k lots and dodging
went on for nearly
's had a clear oppor-
) a bystander. Then
it later a police car
m and Ernest Fox
a halt and blocked

dquarters, Sergeant
ie capture of Elmer
idjoining office, Ser-
shortly be signing in

but sullen Bruner
(e and the. arresting
talogued the articles
fully-loaded .25-cal.
a miniature license

“| DON'T MIND PAYING FOR ANYTHING I DID. BUT | DIDN'T KILL."

tag, a separate key with a letter and two numbers stamped
on it, a small amount of cash.

“These for your car?” Ward asked, pointing to the keys.
“And what’s this other one?”

The big-nosed man with the sandy, thinning hair looked
at the sergeant, but said nothing. His receding hairline and
the resulting appearance of a high forehead contrasted odd-
ly with his round, rather bulbous head. Ward judged his
height to be five feet eight inches, his weight at about 150
pounds. :

“Never mind,” said Ward .in disgust. “We'll find out
easily enough.” \

At 6:20 P.m., as Ward was filling out the forms neces-
sary for booking the prisoner, the phone rang in the ad-
joining radio room. A moment later the men in Ward’s
office heard Sergeant Smoot ordering a car to Washington
Boulevard, an exclusive residential district on Huntington’s
south side, to investigate a burglary complaint.

Two minutes later, Smoot took another call, and the re-
sulting flurry in the dispatcher’s office caught the officers’
attention. It wasn’t just a burglary case out on Washington
Boulevard .. . it was murder!

If Mr. Bruner had been a sensitive soul, or cared any-
thing about having a cop’s undivided attention, he would
have been highly insulted at this point . . . because, as in
police departménts everywhere, (Continued on page 62)

‘4 coat f

Patrolman Waller was one of the men who participat-
ed in capture of fugitive, relieved him of automatic.

tae ae ee eo ce


eee eee

Orie?

— Sua ’

or drink. Only last Thursday night he said,
‘When are you and Dad going to stop smoking
and really testify to the Lord?’

“T don’t think he took that girl out with an
ulterior motive. Two boys we know saw her

-walk over to his car and get in. She waved to

them. It was no premeditated date, I’m pretty
sure of that.

“When Ronnie was nine, he set a couple of
fires in our house. I spoke to our pastor about
it and he told me he thought our boy needed
specialized care. We took him to a leading
psychiatrist in Newark, but Dad and I can’t
remember that any treatment was advised
then.

“About four years ago, Rongie took all my
clothes and slashed-them with a razor ‘blade.
Later we took him to the Menlo Park Diag-
nostic Center. I felt I’d rather they’d put him
away then, before he could do serious damage
to anybody if that was God’s will. They said
he loved his father and hated me. They said he
had built up a terrific resentment. They
thought I was over-protective toward him and
suggested I undergo psychiatric treatment. I

didn’t go because, when I spoke to Ronnie
about it, he said, ‘They’re liars,’”

The Menlo Park Diagnostic Center, where .

Ronnie had been committed, said they had re-
ported Ronnie was “. . . A schizophrenic-
paranoid pattern (split personality and de-
lusions of persecution) . . . a passive person-
ality with a tendency to show eruptive ag-
gressive and sometimes homicidal behavior.
Such an individual warrants grave concern and
should have continued psychiatric treatment.
His bold outward actions are insignificant. He
has deep-rooted tendencies that are definitely
dangerous.”

Mrs. Marrone, however, interpreted the re-
port as nothing to worry about. “As God is
my witness,” she said, with great emotion,
“they said Ronald was a fine boy.”

“We felt Ronnie was cured,” Mr. Marrone
interjected. “He spent a whole summer at a
Christian camp after he had been at the medi-
cal center. He accepted Christ. He walked with
the Lord. The last two or three years he
straightened out.”

Starr’s father, however, recalled the only

time he had spoken to Ronnie, when the youth
had dropped by the Zeitler house two days

after Starr’s disappearance. He had this recol- ~

lection of the visit.

“That boy,” Zeitler said, “looked me right
in the eye and said ‘I’ve never had a date with
her. I never even knew she was absent from
school until I noticed’ she wasn’t next to me
in English class.’ If the boy was off balance, I
wonder why he wasn’t put where he could
hurt no one, not even himself.”

Ronnie Marrone is, at this writing, in a
Bergen County Jail cell. It is lighted and
guarded 24 hours a day and probably will be
‘until he comes to trial. He still has his Bible,
which he reads continually, and looks up from

*time to time to tell the guard, “God will for-
give me for my sins.’

eels Note: The names of Jim Franks,
Tina Green and Steve Harris are not the ac-
/tual names of the persons who were~in fact
participants in the incidents described in this
article. The names are used to avoid embar-
rassment to these innocent persons.

Case of the Perambulating Yard Man °

continued from page 55

murder has precedence over anything else. Mr.
Bruner, the burglar, was left with scant com-
pany .. . and the department’s emphasis
shifted to a brutal slaying.

Smoot could be heard dispatching the near-
est radio cars to the scene. Then in quick
order, he notified the detective bureau by
intercom and (by phone) Chief of Police
Clifford Jarrell and Chief of Detectives Her-
man Frazier, both of who were off duty and

. at home. .

The Washington Boulevard address was
that of J. E. Miller, prominent Huntington
contractor. The house occupied by him and
his wife, Ruby, 58, is one of the showplaces
in a section noted for its beautiful homes.
A two-story frame and stone structure, it sits
well back from the boulevard that winds
along a small creek, nestling on a wooded hill
and screened from the road by neatly-groomed
shrubbery and tall evergreens.

Mr. Miller had returned home from his
office at 6 p.m. He parked his car in the
driveway beside the porch at one side of the
house and walked in.

“Ruby, I’m home,” he started to call out,

_ but the disorder that met his eyes choked the

words back in his throat. Drawers and chest
doors stood agape, their contents strewn over
the floor. Books had been pulled off shelves.
Furniture was in disarray.

He didn’t pause for a close survey, but hur-
ried through the house, calling his wife’s name.

There was no answer.

He looked for the phone, a plug-in type

‘that can be moved from room to room, but

couldn’t find it. He ran to the home of a
neighbor, Davison G. Crawford. They made
a hasty call to police, and both returned to
the Miller home, followed by Mrs. Crawford.
Miller looked in the garage and felt a quick
surge of relief. His wife’s car wasn't there and
he assumed she had gone shopping before the
burglary and had not yet returned.
' Meanwhile, Mrs. Crawford was looking
through the house. She opened the ddor to a

little-used spare room on the first floor at
the rear. A large pile of clothing had been
flung onto a bed. She was about to turn away,
but an odd outline—like that of a leg—under
one edge of the pile caught her eye. She
pulled the clothing away ... and screamed.
The body of Ruby Miller, covered with
blood, was sprawled across the bed. A
crimsoned towel was taped over the head; a
stocking was knotted around her throat. Her
hands were folded across her chest. She wore

‘pajamas.

Mrs. Crawford ran back to her own home
and placed the second call to police.

Sergeant Bernard Tomlinson and Ted Barr,
one of the ablest teams in Huntington’s de-
tective bureau, and Captain Frazier, their
‘chief, were among _the_first of the 24 officers
to arrive on the scene. Frazier put Barr and
Tomlinson in charge of the case. While they
and others searched the house for clues to
the murderer and questioned Miller and the
Crawfords, uniformed men roped off the
grounds to bar the growing throng of cu-
riosity-seekers.

e

THE police department’s fingerprint expert

and photographer, Lieutenant Nelson Pad-
en, took pictures of the body on the bed and
dusted the bedroom for fingerprints. Then Dr.
Robert Russell Dennison, acting coroner, made
a preliminary examination and ordered the
corpse removed to a funeral home for an
autopsy.

Before Mrs. Miller’s body was taken away,
the towel was removed from her head. Even
the most hardened officers present were nau-
seated by the sight. Mrs. Miller’s skull had
been savagely beaten into a mcken, mis-
shapen mass.

None doubted that a blood-caked claw-
hammer found near the bed had been the
murder weapon.

A loaded, double-barreled, 12-gauge shot-
gun lay on a chair in the den adjoining the

the bedroom, and Lieutenant Paden found -

fresh fingerprints on it that proved to be those
of Mrs. Miller.

The murderer apparently had gained entry

* through the window of a bathroom at the
rear of the house, down the hall from the
bedroom in which Mrs. Miller had been killed.
A hole had been cuf in the screen to permit
the intruder to unlock and remove it. Then
the window had been jimmied.

“A professional job,” Tomlinson and Barr
agreed.

Both the den and the guest room showed
signs of a struggle—a vase had been knocked
over and cracked in the den, and the walls of
the bedroom were spattered with blood.

The grief-stricken Mr. Miller told officers
that his wife had visited him in his office on
-Huntington’s east side during the morning
and had left for home around noon, saying
she would have lunch there.

Barr and Tomlinson examined the kitchen
and found no indications ‘that she had pre-
pared lunch there. They did find dirty break-
fast dishes in the sink and tentatively con-
cluded, pending autopsy findings, that Mrs.
Miller had been killed before she had time to
prepare her mid-day meal .
around 1 o'clock.

This theory was borne out when Dr. S.
Werthammer, the pathologist, completed his
autopsy at 8 P.M. and reported that Mrs.
Miller had eaten nothing since breakfast.

Dr. Werthammer said that Mrs. Miller’s
head had been smashed by at least a. dozen
blows, probably from the claw-end of the
hammer. These were the cause of death, and
she was not alive when the stocking had been
tied around her neck.

The theory was advanced that the killer
had later: taped the towel around her head in
an attempt to mask the horrible sight.

This was the sum of the preliminary inves-
tigation, There were no clues to the killer’s
identity, no leads from the interrogation of
the residents and servants in the area, They
had neither seen nor heard anything suspicious.

\

. probably .

With the fir
cers returned
work; such a:
suspects .
example. Not
gotten. He’d b
the items fow
undergoing su:
handled by a
urally had to ;

The: key sta
was quickly i
public lockers :
made there, a!
matched the k
full of miscell:
cent series of t
the Hammock
Old on Enslow

Shortly afte:
called out of
Tomlinson at t
on the phone,
urgent.”

UNTING
good-loo
quiet composu)
dom seen ruffic
then crack cor
words that car
“What?” he
that cell and s
We'll be right «
to Barr and T:
we've got a bre
As they sped
ing, he told tt
been found on
late that afterr
“They check:
tached to thos
license on Mrs.
The interrog
lice headquart«
furnished chan
stand against
against anothe
under an over
with a single :
the other.

Elmer Brun:
chair in the fu
at the shadow
first he would
silence to deny
Mrs. Miller or

For the bette
that the detecti
tain Frazier fin:
and Tomlinson

“Let’s take I
might shake so
one who did it

Bruner show
no emotion, a:
home and tt
room and den.
approached the
gan to twitch
chamber.

Barr took th
resumed. A ha)
of 30, his curl
make him look
a detective. He
sympathetic rol

His teammat
a balancing rol
manner. A_ shi


inie, when the youth
ler house two days
. He had this recol- ~

1, “looked me right
2ver had a date with
he was absent from
wasn’t next to me
y was off balance, I
yut where he could
self.”

this writing, in a

It is lighted and
nd probably will be
e still has his Bible,
, and looks up from
sard, “God will for-

mes of Jim Franks,
iris are not the ac-
s who were-in fact
its described in this
ed to avoid embar-
t persons.

t proved to be those

ly had gained entry
a bathroom at the
the hall from the
‘iller had been killed.
the screen to permit
nd remove it. Then
mied.
Tomlinson and Barr

guest room showed
sxe had been knocked
len, and the walls of
-ed with blood.
Miller told officers
him in his office on
during the morning
around noon, saying
ere,

xamined the kitchen
s that she had pre-
did find dirty break-
and tentatively con-
findings, that Mrs.
fore she had time to

real . . . probably .

ie out when Dr. S.
logist, completed his
reported that Mrs.
- since breakfast.

| that Mrs. Miller’s
by at least a dozen
che claw-end of the
cause of death, and
he stocking had been

nced that the killer
1 around her head in
horrible sight.
he preliminary inves-
clues to the killer’s
the interrogation of
ts in the area. They
d anything suspicious.

With the first rush of excitement over, offi-
cers returned to more mundane and routine
work; such as the investigation of burglary
suspects . . . Mr. Elmer David Bruner, for
example. Not that he’d been completely for-
gotten. He’d been locked safely in a cell, and
the items found in his possession had been
undergoing such routine checks as could be
handled by. a stripped-down staff that nat-
urally had to give priority to the murder case.

The: key stampéd with letter and numbers
was quickly identified as the type used in
public lockers at the bus station. A search was
made there, and officers found a locker that
matched the key. It contained two suitcases
full of miscellaneous items stolen in the re-
cent series of burglaries, including things from
the Hammock house and the home of E. T.
Old on Enslow Boulevard... .

Shortly after 8 p.m., Captain Frazier was
called out of a conference with Barr and
Tomlinson at the Miller home. “Headquarters
on the phone,” he was told. “They say it’s
urgent.”

UNTINGTON’S chief of detectives is a

good-looking man in his 40s. He has a
quiet composure that his associates have sel-
dom seen ruffled . . . but they saw it waver,
then crack completely as he listened to the
words that came over the phone.

“What?” he shouted. “Yank him out of °

that cell and see if you can start him talking!
We'll be right down!” He hung up and turned
to Barr and Tomlinson. “Come on. Looks like
we've got a break!”

As they sped into the city with siren howl-
ing, he told them of the car keys that had
been found on the burglary suspect arrested
late that afternoon.

“They checked out the little license tag at-
tached to those keys. . . . It’s the same as the
license on Mrs. Miller’s missing car... .”

The interrogation room at Huntington po-
lice headquarters is a small, plain, sparsely-
furnished chamber. A couple of filing cases
stand against one wall, some small lockers
against another. In the center of the. room,
under an overhead light, is a battered desk
with a single chair on one side and two on
the other.

Elmer Bruner sat hunched in the single
chair in the full glare of the light and peered
at the shadowed faces of his inquisitors. At
first he would say nothing. Then he broke his

silence to deny that he knew anything about

Mrs. Miller or her car. |

For the better part of an hour, that was all
that the detectives could get out of him. Cap-
tain Frazier finally called a halt and took Barr
and Tomlinson aside. .

“Let’s take him out to the house . . , that
might shake something out of him, if he’s the
one who did it.”

Bruner showed no sign of recognition, and ,

no emotion, as he was led into the Miller
home and through the ransacked living
room and den. But he: held back a bit as they
approached the death room, and his face be-
gan to twitch when they entered the bloody
chamber. ;

Barr took the lead as the questioning was
resumed. A handsome, energetic, slender man
of 30, his curly blond hair and ready smile
make him look more like an entertainer than
a detective. He easily and plausibly adopts a
sympathetic role in interrogations.

His teammate, Sergeant Tomlinson, plays
a balancing role that ‘fits his appearance and
manner. A short, dark, hard-muscled man

with frank, appraising eyes, he has a quiet
reserve that makes his terse, hard-hitting
questions doubly effective.

“Now look, Elmer,” Barr said, “all we want
to do is help the best we can. It'll be a lot
easier for you if you just tell us what you
know about this. We don’t want to hang the
wrong man.” ’

Bruner looked at the bloodsoaked bed, then
turned away with a barely-perceptible shud-

der. He opened his mouth as if to speak, and °

closed it again. . .
“Here’s the keys,’ Tomlinson snapped.

" “They belong to Mrs. Miller’s car. She drove

it home. She was killed. The killer drove. the
car away. If you didn’t do it, how come you
had the keys?”

They kept at him, trying first one tack, then
another. At one point, Bruner knelt on the
floor and prayed. Then, gradually, he began
to talk.

At first he admitted only that he’d been in
the car ... not in the house. He told the
detectives where.they could find the car—in
the parking lot at St. Mary’s Hospital, a mile
north of the Miller house and some ten blocks
west of his own home.

Then he admitted having been in the house,

but he denied having killed Mrs. Miller. “I -

didn’t’ even see her!”

“That won’t wash, Bruner,’ Tomlinson per-
sisted. “You must have seen her. She caught
you robbing the place and you let her have it.
You'll be better. off if you tell it straight.”

“All right,” Bruner mumbled, burying his
face in trembling hands. “I'll tell you how it
was,” '

Following the Hammock robbery the week
before, Bruner said he’d left town. He’d. taken

a bus to Columbus, Ohio, then traveled to
Cleveland and Indianapolis. On the morning
of the murder he started back to Huntington,
traveling by bus to Ironton, Ohio, and walk-
ing across the bridge to Ashland, Ky., on the
other side of the Ohio River. From,there he
took a local bus the remaining 16 miles to
Huntington. He checked the two bags he was
carrying at the bus station and started walk-
ing again, with no particular goal in mind.

AS HE walked down Washington Boulevard;

he caught a glimpse of a large home up
on a hill. He noticed that it was screened
from the road and from neighboring houses
by lush; well-kept shrubs and trees.

“Why not?” he asked himself. He hurried
up the driveway and rang the bell. If any-
body answered, he would inquire about doing
yard work. ~

Nobody came. He went around to the back
and broke in.

He had gone through most of the first floor
without finding too much and was searching
the back bedroom when he heard a noise be-
hind him. He turned, and saw Mrs. Miller
before: he saw the gun. He couldn’t believe
the gun at first; it was so out of keeping with
the motherly, attractive woman’ who held it.
But the firm mouth, the piercing gaze, made
him believe she would use it. He knew he had

. to do something pretty quick.

He grabbed something—he didn’t know
what it was—and knocked the shotgun aside.
Then he hit her; he couldn’t remember how
many times, or with what. But he was sure
he had only knocked her out, he told the
detectives.

“Somebody else must have come in later

oe =

ve eg teem


a

» “ee 3 .

and killed her. I just left and you know’ the
rest.”

That was the substance of what he told
Frazier, Barr and Tomlinson that night, and
repeated in a statement he signed the next
day.

Later that day—Tuesday, May 28—Elmer
David Bruner appeared before Magistrate
Paul Stephenson and waived preliminary hear-
ing on two charges of burglary and one charge
of murder. He was remanded to Cabell Coun-

| ty Jail pending grand jury action. There he |

freely discussed the case, as well as his state-
ment to police, with newspapermen who had
gathered for an interview when they received
permission to see him at the jail.

“I didn’t admit to killing that woman. I
said I hit her. She was unconscious when I
left, but she didn’t have a stocking around
her neck.

“T admit that I’ve burglarized houses. But
I only hit her. I wanted to know when she
died, but they wouldn’t tell me. I went in
about 11 a.m. and was there only about an
hour. I may be able to prove where I was
at the time she was killed. I talked to sev-
eral people at different times Monday after-
noon.

“I was in the house and didn’t hear her
come in, I opened the door to leave and she
was standing in front of the door. I grabbed
the shotgun from her and hit her with a
brush or some kind of piece of wood. It
wasn’t over five minutes after I opened the
door to leave that I was gone. I had some

jewelry and stuff ready to leave when I opened
the door and saw her.

“She didn’t say anything. Just screamed
when I grabbed the gun.

“lve admitted that I hit her, but someone
else had to be there after I left. Anyone would
remember if he‘tied a stocking around her
neck, I didn’t do that. There was nothing in
the statement that I said I killed her. I didn’t
want to sign it until I found out what the
coroner’s report said, but they wouldn’t tell
me. If I’d killed her, I would admit it, you can
be sure of that.

“No one was at home when I went in.
About an hour and a half before, I stopped
at a house on Avondale Road, wheré I’d
mowed the grass, and asked to use their tele-
phone to call my mother. I was going to talk
to her and give myself up in the Hammock
case, but the line- was busy and I didn’t get
to talk to her.

“T had no reason to kill that woman. I'd
been identified by Mrs. Harnmock; and Mr.
Old knew I’d taken his car. I knew they
wanted me for those two jobs.

“J didn’t tie anything around her neck or
pile any clothes on the bed after she fell
on it.”

Asked how soon he left town after leaving
Mrs. Hammock’s home in Spring Valley, May
22, Bruner said:

“J left about an hour and a half later. I

‘went home to get some clothes, parked my

car, then took a bus’to Ironton, where I got
a bus to Cleveland. I was there one night and

went to Indianapolis. I rented a room for a
week, but was there only one night and two
days, I took a bus to Columbus. I waited all

* the next day so I wouldn’t get to Ironton un-

til after dark. I went to Chillicothe, then
Portsmouth, then got a bys to Ironton. I had
the money from the $170 check I got from
Mrs. Hammock.

“IT don’t mind paying for anything I did,
but I didn’t kill her.

“Common sense would tell anyone if I
killed her and took her car I wouldn’t have
stayed in town. I drove around town to stall
until dark so I could go home. I talked to
two or three people out of town, but I don’t

@want to get them. involved until I find out

when she really died. . . .”

Veteran police officers and crime reporters
received these protestations of innocence with
more than a single grain of salt. They are
inclined to treat it as a desperate attempt to
beat a murder rap, but are making every effort
to check Bruner’s story, for like the majority
of law officers they are interested in prose-
cuting only the guilty.

On June 5, the grand jury, in reporting to
Common Pleas Judge John Daniel, indicted
Bruner for the murder of Ruby Miller. He
also was indicted for the theft of the Miller
car.

The court appointed two Huntington law-
yers as counsel for. Bruner and granted a mo-
tion for a mental examination. Pending the
outcome of the tests, Bruner remains in soli-
tary in the county jail, awaiting trial.

What Makes An Innocent Man Confess?

continued from page 35

anger. He rumpled the newspaper angrily in
his hands and shouted: “It’s a dirty lie. The
man’s an impostor. I won’t have anyone grab-
bing my glory. J did it. That man is either a
liar or you dirty bums used rubber hoses on
him !”

The captain didn’t take offense. “I know

how you feel. But believe me, that bird did
it all right. He even led us to the murder
weapon and we found the girl’s dried blood
on his clothing.”

The little man’s shoulders sagged. Dejected,
he turned and headed for thé door. Suddenly
a thought struck him and he whirled back
around to the desk.

“Hey, the Rubinstein case,’” he babbled ex-
citedly. “There’s nothing in the paper about
that, is there?”

The police officer sighed and said no.

The confessor was brimming once more.-

“You dumb coppers never would have got
me if I hadn't come in like this and given
myself up. ‘

The captain ‘nodded to a pair of patrolmen
and they quickly bracketed’ the man. He
glanced to each side. “Am I under arrest?” he
asked hopefully.

Turning on his heel, the captain walked
away. No charge of -homicide was recorded.
No assistant district attorney was summoned
to hear a confession. Instead there was just
a quick trip in the paddy wagon to the men-
tal ward of the local hospital.

This little drama, replete with thauiands
of minor variations, is perhaps the least re-
ported aspect of any important murder case.

As any veteran homicide cop can testify, in
many cases investigators have little trouble
obtaining more confessions than clues.

Los Angeles’ famous Black Dahlia murder
of 1947 is, with good reason, known to that
city’s homicide: division as the “Idiots’ De-
light.” No accurate statistics have been kept
of how many phony confessions have been
made in the case. They vary from 38 to over
200 depending on what is meant by a con-
fession—whether down in black and white on
paper or anonymous telephone. calls to the
police admitting the killing and offering to
surrender. ;

In another case, the bludgeon murder of
18-year-old JoAnn Carol Gillespie in Detroit
in 1953, police had to wade through no less
than 14 phony admissions before obtaining an
indictment on No. 15 this year. °

WO researchers who have done consider-

able study on phony confessions, K. and M. .

Wagner, have reported some truly remarkable
examples. There is, for instance, the harmless
old man who keeps busy in his confessing
routine by buying out-of-town newspapers
and traveling many miles just to give himself
up whenever a murder occurs. For years,
the New York police were plagued with one
particular character. who was believed to have
confessed to no less than 50 murders before
his death some time ago.

However, phony confessions are not a
laughing matter—however ludicrous the be-
havior of the many screwballs doing the con-
fessing seems to be. In almost any important

case, hundreds, even thousands, of man hours
are wasted checking up on worthless confes-
sions to. prove their perpetrators innocent.
Meanwhile valuable time is lost in efforts to
corner the real culprit. who continues to cover
his tracks.

Nothing pains an experienced police officer
more than talk of “third-degree .confessions.”
Not that such things don’t happen at times.
And there sometimes is just a fine line be-
tween “crackpot” confessions and admissions
wrung from suspects by psychological pres-
sures on low-grade mentalities.

_ It’s the warped personality who first comes —
to the police with a cock-and-bull story about

committing a murder and then, to the law’s
embarrassment, relents just when the police
seem to be giving public credence to the story,
that really drives the boys whacky.

There is very little that antagonizes police
more, or slows down their work better,
than being taken in by a bogus killer’s “con-
fession.”

The perfect example of the ensuing trouble
was spotlighted recently in the baffling murder
of the Grimes sisters in Chicago. The girls,
Patricia, 13, and Barbara, 15, left their neat
five-room home the night of Friday, Decem-
ber 28, 1956, to see a movie.

Twenty-five days later, their nude bodies
were found on a suburban road, their clothes
missing. Authorities swarmed over the site
where the bodies had been dumped. One news-
paperman summed up how the investigation
went this way: “There began a grisly, tangle-
foot game .. . replete with costly delays,

bobbles, ‘nonse
jealousy.”

Later a sta
sheriff’s office,
the state polic
of bungling an

Two days a
sheriff’s office
been picked u)
Bedwell, a 21
Skid Row dish
a-night hotel :
the Grimes si
home. Bedwel
cent of the s!
crime January
signing a 14-p:
the authoritie:
sweetly they h
rogation.

It was a go:
is, until discre
nie’s confessio:
presumably w
but Bennie b«
bauched the c!
for a week’ be
zero weather.

Nor did hi
puncture wou
inflicted after
autopsy repor!
had been slug
no other signi

Bennie’s cor
a toxicologist’
of the content
death had tal
left their hom

After Benni
versed himse]
been pure fe
cuffings of sh
hardly the w
ment on teley
of this repudi:
new facts unc
well in the Gr

One thing
whacky confe
more discomf:
did Bennie hi:

Very often
not being abl
an alleged sla
takes a team
a phony. Typ
who confessec
lespie in Detr

A handyma
man told of k
for another cr
ing Tom an
defective, he
the Gillespie
confession—th
by police. It
days of detai
was incapable
him a fast tic

Other phor
case were eas:
mate of the
from a Detr«
gation was to
pital at the ti

When, last
charged with
were sure th
Having antici


AGES EH, IRN

TOSS

CEE latuant pote ete

63 SOUTH EASTERN REPORTER, 2d SERIES

74 W. Va.

commission of the homicide as to whether
either used a knife in preventing interfer-
cin behalf of O’Brien and as to whether
either of them, were intoxicated to

by John Moore that he, John Moore, oper-
ated a “bootlegging business” at 29/2 Clen-
denin Street, but there was no showing enc
that O’Brien bought a bottle of wine at the they, or
time he was there. Beaver further testified such a degree as to render them incapable
est of O’Brien he drove to of premeditation. Inasmuch as Burdette
and Painter were acting together in the
matter, the evidence as it relates to each

that at the requ
the Greyhound Bus Station on Summers

Street, that O’Brien went into the station,
and that he believed O’Brien made a pur- should be stated. Witnesses for the State

chase there; and that he drove O’Brien to who saw some part of the fight will be first
the rear of the curtain shop mentioned considered.
above. This witness, as well as the other Myrul Burroughs, Gerald Burroughs and
witnesses who were in contact with O’Brict’ Grover Simmons, acquaintances of O’Bricn,
the evening before the fight, testified that 4, their way to the midnight show at the
O’Brien was sober and was ina good frame Greenbrier Theatre, were walking along
of mind. One witness, Lawrence Westfall, the westerly sidewalk of Summers Street,
testified that O’Brien drank “Two Tom year the parking lot, at about eleven-fifty
Collins” during the two hours he was in the P.M, and saw O’Brien fall from the park-
VEW Club, but that when O’Brien left the ing lot to the sidewalk, and saw Burdette
club he was sober and “In a good humor”. 34.4 Painter follow him immediately. They
Burdette and Painter were residents of — stated that O’Brien got back on his fect and
Charleston, were close friends, and “when that Burdette and Painter continued strik-
not working they were out together a great ing him, and that they, the three witnesses,
1”. Neither had been regularly employed undertook to interfere in the fight, to stop
for some time. Burdette at time of trial, it, but were prevented from doing so by
was twenty-seven years of age, marricd, and Painter, who threatened them with a knife.
the father of three children. On the morn- Myrul! Burroughs testified that when he saw
ing of July 30, 1949, at about ten-thirty O’Brien fall O’Brien had a newspaper in
A.M., Burdette and Painter met at a pool his hand, and that he did not have a knife;
room on Summers Street, and remained that Painter came toward him and said “he
there until about nine-thirty that evening. would cut my (witness) guts out”. This
Burdette was asked: “Q. Were you there witness further testified that Burdette
continuously all that time?”; and he an- knocked O’Brien down “and started stomp-
swered “A. Yes sir.” He was also asked ing him”, and stomped him about the face.
“Q, During the time you were there what Gerald Burroughs further testified that he
did you do?”, to which he answered “A. saw Burdette and Painter strike O’Brien
We drank whiskey and beer and shot pool, and that when he, Myrul Burroughs and
is all we done.” At about nine-thirty that Grover Simmons “started to pull them off
evening they Icft the pool room and went they started to fighting and cussing
“to a bootleg joint” on Reynolds Strect, * * *”, and that “The next thing I knew
“Just long enough to purchase a pint of fred Painter was striking me with a knife”,
whiskey.” They then went to the Smith and when “Painter came at me with the
beer garden and “drank beer and whiskey”. knife I started backing away and I seen
At about cleven-forty-five P.M. Burdette Burdette stomping” O’Brien “in his face
and Painter were back on Summers Strect, and throat.” He also testified that O'Brien
near the office of the Skyline Cab Company, had no weapon; that he saw O’Bricn use
and left there, going toward the rear of the his hands only to protect his face; that
Curtain Shop, apparently reaching the rear Burdette and Painter handled themselves
of the building housing that shop at about “pretty well”, and had no difficulty in stay-
the time O’Bricn arrived there in the taxi jing on their feet, and when asked whether
Burdette had any difficulty when he was
stomping O’Brien, replied “None at all”;
at he thought Burdette and Painter

dea

driven by Beaver.
There is conflict in the evidence concern-
ing the acts of Burdette and Painter in the and th

STATE v. BURD
Cite as 63 Ape aaa W. Va. 7

k ‘ :
nine et athe a sre Sim- She also testified that she picked up a piece
eftect that Burdette of newspaper b
en ie ‘ y a pool of blood a
ok poise were striking O’Brien with turned it over to an rip Rapp etoala be
es sts; that he did not see O’Brien do attorney. Robert Crouse, a former nice
ris ing only try to protect his face”, and officer of the City of Montgoniery arte.
Male, ave acer you Re na Say any- dette beating O’Brien and sestificd nae
ing somebody?”, answered O’Brien was | i i
Wek’ ¥en cee merely protecting himself
; y they would cut “was droopin i it li
ing 2 ga little bit like a
pi eet cat ae knocked O’Brien breath and like he was all oe oe
mn ‘he stomped him three or four times, dette knocked O’Bri , ,
about his face and throat; that he, M iwi i de God Ce
: , Myrul witness, told Burdett d Pai
Burroughs and Gerald Burrou i fie relia: Penis cee oe
ghs tried to O’Brien loose and that Pai ied “
stop the fight; that Painter had a knife and wi seat Piaes odessa
the fight; will cut your God damned h ban
was “trying to keep the people back”; that after O’Bri Fie we
is eke wees ; r Tien was down and after making
y weapon; the above quoted stat i i
that he saw Painter hit O’Brien i i ur teas ees
a few licks O’Brien, and then he, the wi mg
and also stomp him; and that after Bur- runni TA Son Atala
him; - running for the police’. Paul Arth -
cette eh O’Brien Burdette and Paint- tified that he saw O’Brien fall is: te side
ae ~— hands with the knife’ in walk and a newspaper fell from his fiand;
a ing the bystanders back. He made the that O’Brien got up, tried to protect hi
a ard sagt to questions asked him: self, was knocked back down, and Punks
: s to Harry Burdette, I wish you “straddled him
; and he came d i
ip wig ~ actions there with refer- with his feet”; that Burdette pip SA
ence to how he handled his hands and feet “seemed to be holdi
during that fight. A. It seemed to m i aligtel tot cic ee
» A, e he with what he believed i
knew what he was doing. H sind ee
g. Heknewthe way that he “was impressed
to keep his balance. He had Wenig? Neb dete,
ance, perfect bal- two men were drinking.” N i
ance. Q. Did he side step any? A. He testifi vi a Ha
f F ed to the effect that h B
did when he hit Eddie (O’Brien) the las it O’Bri ee eee
| t hit O’Brien; that he ran acro
; ss the st
es in ee Painter stagger at to the Pure Oil Station to call the a.
; o, sir.” These three that when he '
[ got back to where th
bi also testified concerning a bottle was going on O’Brien was ria fe
ane thrown at O’Brien by either Burdette that he started to help O’Brien and ia
or Painter, the bottle being broken, and of warned. by two boys who were with him
the contents thereof smelling like alcohol. “* * * not to go in it”, and shat b es
? oth

Mrs. Acie Neal, who lived at the resi- Burdette and Painter “stomped the man
dence above mentioned, shortly before mid- lying on the sidewalk”. Robert McCormick
night heard somcone say “If that is the testified that he saw part of the fight, saw
way you want to fight, go ahead and cut O'Brien knocked down, and that Burdette
him.” that she went out of the residence, CUrsed him and started at him. Thereon
saw someone lying on the sidewalk, thought Stone saw O’Brien down on the sidewalk;
that it was her brother, requested someone $4W Painter kick O’Brien at least twice in
to go for an ambulance, and stated that the upper part of the body. He also testi
About that time he (Burdette) was up to fied that a woman requested him to “ ;
me and the guy said ‘stomp his God damn_ over there quick, that somebody wa killing
brains out’”’, and that Burdette did stomp her brother”, and that he nia a ve f Pa
O'Brien “about three times”. Alice Cobb, the sidewalk. E, D, Schith a cit = i a
the girl friend of O’Brien, shortly after man, arrived shortly after th seg “a
she talked with O’Brien over the telephone, over, saw O’Brien lying on a ts ane
heard some loud talking and cursing and a lot of blood on the sidew: ik, ts cour
heard ke aps Hadar someone to call fied that he arrested Rasterie ee
an ambulance, and heard someone say “Oh, He also testi ai y at
you want to fight with a knife, do you?”, and that ek tae eA oh ae

—_

ot eo

hs

etme ere

ae ew erseae-e-w
—-


ing of
nd re-
y’s ac-
negli-
we can
- lepend-
negli-
lefend-
| in the
ie back
‘tion of
t which
d with-
ave re-
| ig|cause

ation of .
this ju-
very for
charged
eged in-
ilan, 125
v. Long

.E

115
Atlantic
E.2d 324.

risdiction
injury is
x thereto,
not have
1.Va. 405,
Price, 93
ick’s Law
Df course,
rstood as
sequence, un-
use, produced
4 event would
Baltimore
217, pes: 2
CAL TS
ker, 81 Ill.
jllation of
ses, Perm.
id Cumula-

is of “prox-
the allega-
aa

d neg-

BURDETTE, Harry Atlee, and PAINTER, Fred Clifferd, whites, electrecuted
West Virginia SP (Kanawha) en March 26, 1951,

STATE v. BURDETTE W. Va. 69
Cite as 63 S.E.2d 69

ligence of the defendant Lilly is, as this
‘eclaration would indicate, the sole proxi-
mate cause of decedent’s fatal injuries and
death, and the alleged negiigence against
the other defendants is remote as distin-
guished from proximate, and, therefore, not
actionable. The alleged hazardous condi-
tion of the airport, its proximity to the two
highways, and its height therefrom, in al-
‘eged violation of regulations and statutes,
could not, under the allegations of this dec-
laration, be the proximate cause of the al-
leged wrongful death. Where there is a
sole, effective intervening cause, there can
be no other causes proximately resulting in
the alleged injury. In Fawcett & Sons v.
Pittsburgh, Cincinnati, and St. Louis Rail-
way Co., 24 W.Va, 755, pt. 1 syl.: “The
cause of the inquiry (injury) in contempla-
tion of law is that which immediately pro-
cuces it as its natural consequence; and,
therefore, if a party be guilty of a default
or act of negligence which would naturally
produce an injury to another, but, before
such injury actually results, a third person
‘oes some act which is the immediate cause
of the injury, such third person is alone re-
sponsible for the injury.” Anderson v.
Baltimore and Ohio Railroad Co., supra.
ltkewise in this jurisdiction there is a clear
C:stinetion between the proximate cause of
an injury and the condition or occasion of
the injury. Stuck v. Kanawha & Michigan
Railway Co., 76 W.Va. 453, 86 S.E. 13.
Consequently, we are of opinion that the
vice in this declaration as to the demurring
Gefendants is that, though various acts of
negligence have been alleged against them,
the sole and intervening cause of plaintiff’s
Cecedent’s injuries was the alleged negligent
acts on the part of the defendant Lilly, and
the alleged acts of negligence against the
cther defendants are relegated to the posi-
tion of being remote causes of the injury,
and, therefore, do not constitute actionable

vn

Legligence,

For the foregoing reasons we affirm the
ruling of the Circuit Court of Raleigh Coun-
‘y In sustaining the separate demurrers of
Robert Sessler and Rebecca Sessler, execu-
‘Tix of the Estate of Herbert Sessler, do-
‘ng business as Beckley-Mt. Hope Airport;

Howard Keatley, doing business as Beckley

Flying School; Paul Neal, airport mana-
ger; and The New River Company, a cor-
poration, and in dismissing these defendants
on the court’s ruling on the demurrers,

Affirmed.

° 4 KEY NUMBER SYSTEM

T

135 W.Va. 312

STATE v. BURDETTE.
No. 10274.

Supreme Court of Appeals of West Virginia.
Submitted Sept. 12, 1950.
Decided Dec. 12, 1950.
Rehearing Denied Feb. 12, 1951.

Harry Atlee Burdette was convicted in
the Intermediate Court of Kanawha County
of murder of the first degree. The Circuit
Court of Kanawha County denied the de-
fendant’s prayer for a writ of error and su-
persedeas to the final judgment of the Inter-
mediate Court, and defendant brought error.
The Supreme Court of Appeals, Given, J.,
held that the jury was justified im conclud-
ing that the killing was done with malice,
deliberation, and premeditation.

Affirmed.

1. Homicide @=231, 232

In homicide prosecution, jury and trial
court were justified under evidence in be-
lieving that killing was done by defendant
and his co-assailant with malice delibera-
tion, and premeditation,

2. Indictment and Information €>19
Indictment substantially following form

provided by statute is sufficient. Code,
62-9-3,

3. Indictment and Information ¢>10
Question as to incompetency or dis-
qualification of grand juror can not be
heard for purpose of having indictment
invalidated, but this rule is not applicable

where fraud or corruption is charged.
Code 52-2-12.

4. Indictment and Information €=137(2)
Indictment would not be quashed or
abated because one of grand jurors who

sesemuene enteiemeerssumncnenneapensremenmeemenmeneneinoren


ae:
=

Ser Lor

Peery

2

OATS, engi mh erga

70 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

ound it was not at time resident of vioience that malice and pr enieditation will
county where indictment was made. Code be implied.

2(2), 147
np atalss ig] pia asa eg premeditation are ele-
96(1) elibers é se
Ss Aree : er in the first de
5 ee penteate prosecution, trial court ments me ie pas Ewe Sige
i i i ich mz a
i i iscretion in denying gree wh t specter
es tee ne hie “fe continuance on by inference according to circumst
Jena is icular case.
we Sit that witness was absent, where each particular
gr i

there was no suflicient showing that tes- 13. Homicide €=269

: : ate- at ion, where it ap-
timony of absent witness would be mat In homicide prosecution,

been
ial, or would probably be produced at peated that assault upon decedent had bees
ta ie trial, and it clearly appeared that continued by defendant and his co-assai _
itu Abies :
sbeteee of witness would have been merely even’ nticr (dechirat was Bolaless a
Aa P : .
| i y t merely with fists but
lative. assault was no :
sit defendant had said he would stomp vi
ss sarees ts ial court dent’s brains out and that he had repeated y
galanin +t cea a aks ch stomped decedent, and that after police
ithi iserction of su st C ; ‘
ie eae ear a arrived defendant had said “The God
siege damned son-of-a-bitch got what was coming
to him”, question of malice, under circum-
‘ stances of case, was for jury.

7. Criminal law €=938(1)
In homicide prosecution, iin
i $i fends
did not err in irs Bieri “adie dis- 14, Homiclde €=282, 332(1) mn
oe dere ‘Wd sce ‘such evidence was Question of whether particular omi
spaces oF lbeiiey sed nibetly not suff- cide is murder in first ar aeeond liste
ercly ¢ é a ! ay :
cn ‘ fin teens en ay am ah $e oe of murder in the
ae first degree, court should not disturb ver-
dict, unless the finding of murder in first
degree be plainly and manifestly contrary
to or without sufficient evidence.

8(6)
8. Criminal law C=95 ;
On motion for new trial on ground
of after discovered evidence, any moped
st disclose not only
in support thereof must ¢
mE sink to discover such evidence before 5, Homicide 28 Bea
Ang but that same is calculated to pro- Intoxication, to reduce unt: Be
trial, ae will support, different verdict ¢ide from murder in first ataree, i
rain Te turned by jury. such as to render accused incap; Be
ean forming intent to kill or of acting

9. Homicide C>147 malice, premeditation or deliberation.

ici ~cuti luty of prov-
In homicide prose cution, duty 0
‘ deliberation and premeditation is upon 16. Criminal law = 1165(1) Se .
sidten Verdict of guilty in criminal case wi
oe not be reversed because of error Sea 3
iz hat error is prejudi-
We Eric: ue eck litation nced not have by trial nat weir t
falice or premedité Ey Ue Gena
i ‘ for any great length of time before C1
pice nd if intent to take life is ex- 17. Homicide C270, 332(1)_
hd { : icliberation and premcditation, In homicide prosecution, question 0
ety at fe moment or instant, crime is whether defendant had been intoxicated to
ate in fist degree such degree as to be incapable of forming
n fir : . 3
area 147 intent to kill or incapable of sr Las
ei. ; ‘ se:
= prancie aie can not be inferred meditation and 2S ca Malt gam vs
° malic A 4 ae
Lise sie fist, but such assault may and where issuc we aed sett
anccs aa with such brutality and jury by trial court's :
be accompar

STATE vy. BURDETTE
Cite as 63 S.E.2d 69

ght to disturb jury’s first de

W. Va.
court would have no ri
finding.

18. Criminal law ©>1172(1) under evidence.
In homicide Prosccution, there was no 24. Crimin
Prejudicial error in trial court’s instruc-
tion based on sufficient evidence, that one did
of five verdicts could be returned, murder
in the first degree, murder in second degree, “after having he
voluntary manslaughter, involuntary man-
slaughter, and not guilty, where charge
defined cach offense and informed jur

to punishment provided for each of
crimes,

al law €>834(1)
In homicide Prosecution,

quested instruction by

and argument of counsel”

jury to not only consider e
y as

such reaching a verdict.

trial court by
oO presump-

20. Homicide ©340(1)
In homicide prosecution, there was no 26. Criminal law ¢>1213

Prejudicial error in trial court’s charge that Execution of sentence of death by

intent to kill need not have existed in mind electrocution does not constitute “cruel or

of accused for any particular length Of unusual punishment” in violation of con-

time Prior to killing in order to Constitute _ ‘stitution of West Virginia or United States.

wilful, deliberate and Premeditated killing. Const. art. 3 § 5; U.S.C.A.Const Amend
art: 3, , US.CAS : :

8; Code 62-7-3,

See publication Words

21. Criminal law ©>1172(1)

Homicide >340(1)

In homicide prosecution, there was no for other judici
Prejudicial error in trial court’s instruc- nitions of
tion with regard to right of aggressor or went".
assailant to rely upon defense of self-
defense and as to law governing burden of
Proof where self-defense

as excuse for killing.

and Phrases,
al constructions and defi-
“Cruel or Unusual Punish-

27. Criminal law ¢>1213
Purpose and intent of legislature of
1s relied upon West Virginia in enacting code amendment
Providing for execution of Sentence of
22. Criminal law €=814(3) death by electrocution was to provide for
In homicide prosecution, trial court humane and less crucl means of execiion
did not err in refusing to give requested Of death penalties, Code 62-7-3
instruction which would have directed jury 28. Criminal law €>1206(1)
to find defendant not guilty, where giving Enactment of code
ps a ghor not have been warranted by ing for execution of sentence of death by
: electrocution was within power of West
Virginia legislature. Code 62-7-3,

amendment provid-

23. Homicide €>308(3)

In homicide Prosccution, trial court did
not err in refusing to give instruction that
freatest offense for which defendant could 1,

be convicted was less than murder in the or abated because one o

Syllabus by the Court.

An indictment will not be quashed

f the grand jurors

71

gree, where giving of such instruc-
tion would have been clearly unwarranted

trial court
not err in amending defendant's re-
inserting words
ard instructions of court,
» thus requiring
vidence but to
consider instructions and arguments before


72 W. Va.

who found it was not at the time a resident
of the county wherein the indictment was
made. Code, 52-2-12.

2. “A motion for continuance based
on the absence of a witness is addressed
to the sound discretion of the court, and it
must be shown to the satisfaction of the
court that the witness is material and that
due diligence has been used to obtain his
attendance, and that his evidence would not
be cumulative.” Pt. 1, syl., State v. Bridge-
man, 88 W.Va. 231 [106 S.E. 708].

3. “In order to support a motion for a
new trial on the ground of after-discovered
evidence it must appear that such evidence
is material, that it is not offered simply to
contradict or impeach a witness, and is such
as will likely produce a different result on
a re-trial of the case, that it is not simply
cumulative and that due diligence was used
to discover it before the trial.” Pt. 3, syl.,
State v. Lemon, 84 W.Va. 25 [99 S.E.
263).

4, Intoxication to reduce an unlawful
homicide from murder in the first degree,
must be such as to render the accused
incapable of forming an intent to kill, or of
acting with malice, premeditation or de-
liberation.

5. “Deliberation and premeditation
are elements of the offense of murder in
the first degree which may or may not be
established by inference according to the
circumstances of each particular case.”
Pt. 1, syl., State v. Farley, 125 W.Va. 266
[23 S.E.2d 616].

6. Upon trial of an indictment for

63 SOUTH EASTERN REPORTER, 2d SERIES

punishmeat within the meaning of Section
5 of Article III of the Constitution of
West Virginia, or the Eighth Amendment
to the Constitution of the United States.

—_——_—————

D. L. Salisbury, D. Boone Dawson,
Charleston, plaintiff in error.

William C. Marland, Atty. Gen., George
W. Stokes, Asst. Atty. Gen., defendant in
error.

GIVEN, Judge.

At the September, 1949, term of the
Intermediate Court of Kanawha County,
an indictment for murder was returned by
the grand jury against Harry Atlee Bur-
dette and Fred Clifford Painter. The in-
dictment charged that the defendants “on
the —— day of July, 1949, in the said
County of Kanawha, feloniously, wilfully,
maliciously, deliberately, premeditatedly
and unlawfully did slay, kill and murder
one Edward C. O’Brien against the peace
and dignity of the State.” On the 6th day
of December, 1949, Burdette, then represen-
ted by counsel, entered a plea of not guilty
and, each of the defendants having de-
manded a separate trial, and the State
having elected to first try Burdette, a jury
was impaneled and duly sworn to try Bur-
dette. The trial continued until the 9th day
of December, 1949, on which day the jury
returned the following verdict: “We the
Jury find defendent guilty as charged of Ist
degree murder without recommendation.”
After overruling a motion to sct aside the
verdict, the court, on the 15th day of

STATE v. BURDE
Cite as 63 S.E.2d dee Ys "

guilty by a jury, sentenced to death
: , and the alley intersects S
: um
this co granted a writ of error and taxicab being headed ar ars the
aig p= to the final order of the Circuit Street, and, while payin “gr foie 9)
ate anawha County refusing to re- was asked by either Phirdets sehr fare,
pee e Ai of the Intermediate Court if he’ wanted to ‘purchase pes
ae AS cag ae and the decision of O’Brien answered in the ne é Meth ae
She ticns at case is rendered contem- having paid the taxi ‘a: aa ays aii
W.Va, 63 : wee See State v. Painter, behind the taxi and started oe
. sass . Street. Burdette or Pai
5 . ainter then
ae ses July 30, 1949, just before Beaver, the taxi driver, if he ue
— Hs , a fight wherein Burdette, Painter buy a newspaper, to which Beaver repli 4
pet Rien ry involved, resulted in the that he “had no use for a paper” pi s
fe) Brien. This fight occurred on then back i ij : wee’
. ed his taxi into th
: e alle
ne coe ee of Summers Street and drove toward Lee Street ei se
ity o arleston, between Lee had turned th i .
Street and Washingto ae ee eee
n Street. The Green- heard loud voi
beseg Wiktetra tae ; oices, looked back out of his
p , ing on Lee Street, is taxi, and testified that “ j
Situated southerly from the wt 1 et Se aes
place of the the street and abo i
rie Figs: Ds ut that time I se
ght, and a large dwelling is situated im- kind of scuffle and then some bare odin

mediately north of the rear of i
J the theatre. up and it was shad ’
The: satiety wall af dia Patlne (ot wae Cas adowy and I couldn’t see

practically to the edge of the w y of a ngle
, ester] Bri i
a ' £ Sa : O'Brien, thirty-one yea ge i g
north of the dw ea pees 2 ! tely five feet six inches tall ae we abo 5
elling, toward W ashin was an scgtiies : : he : : p
f t ";

Street, is an automobile parking lot.
1s an entrance to the dwelling on th Premieres, Pepsi <u,

thereof next to the rear of the t
building, and another entrance ther

continued to the sidewalk along the easter!

side of the residence. On the Opposite side
of Summers Street an alley intersects that
street at right angles and extends in an east-

murder by a vicious assault causing much Pecember, 1949, entered judgment against
bleeding, it is not crror to exhibit to the Burdette in accordance with the verdict,
jury, after proper identification, clothing that he “be punished with death”, on the
worn by the accused at the time of the 44th day of April, 1950, by electrocution.
homicide, which the evidence tends to show On March 14, 1950, Burdette filed in the
contained human blood stains. Nor is it Circuit Court.of Kanawha County a petition
error to exhibit to the jury a newspaper praying for a writ of error and supersedeas
saturated with blood, properly identified as to the final judgment of the Intermediate
having been placed over a blood spot at Court of Kanawha County, and on March
the scene of the homicide, within a reason- 20, 1950, the circuit court denied the prayer
able period of time after the homicide. of the petition. This Court granted a writ

7. Execution of a sentence of death of error and supersedeas on the 28th day of
by electrocution, as required by Acts of the March, 1950, to review the action of the
Legislature, Regular Session, 1949, Chapter circuit court. Painter was later tried under
37, does not constitute cruel or unusual the indictment mentioned above, found

erly direction toward Capitol Street

The record does not disclose the distance
from either Lee Street or Washington
Street to the place where the fight occurred
but the distance from Lee Street was proba

bly about 100 feet and further from Wash-
ington Street.

On Saturday, July 30, 1949, at about
11:45 P.M., O'Brien got out of a taxicab
near the rear of the Curtain Shop on the
easterly side of Summers Street, near where

63 S.E.2d—5%

,

in the residence above mentioned, obtained
a date with her and was requested by her to
bring a Sunday morning newspaper and “a
drink of wine”, He then called a taxicab
and left the club in five or ten minutes
Frank Beaver, the taxi driver who answered
the call, testified that he drove O’Bri

os “about 29 Clendenin Street” and Shine
O’Brien went inside and stayed “two or
three or four minutes”. It was testified to

wT een

——

OTR: ANN RI ai gall,

Se er er eee ee
spn “


oe

Rae ee

Ree ee raved patie foe aa oak a ae i

ba

fe ag

’ psa ee ce ae oh

—
"Deh ia:

ep et

ith

rey ea rey

tvebety fh SATE ES
Peete fe RST TEM Ed OT
4 ree USER TLS Seiteety us ais ks la

r

92 Ww. Va.

distinguished from temporary aberration,

even though such insanity
excessive and long continu

a defense to the commission of crime.

State v. Kidwell, 62 W.Va. 466, 59 S.E.

494, 13 L.R.A.N.S., 1024.
homicide, evidence of gro
so as to destroy the power

and capacity to meditate, may be shown so
as to reduce the homicide from murder of

the first degree to murder 0
gree. But that defense is
a person accus¢

has voluntarily and intentionally drunk in-

toxicating liquors so as to

is produced by f

SPE ee aed a aoe al

63 S0UTH EASTERN REPORTER, 2d SERIES

The evidence is conflicting whether de-
endant was suffering from insanity. One

ed drinking, is physician, who is a general practitioner,

gave his opinion that defendant did not
know right from wrong, in view of the

In trials for fact that he had used a quantity of intoxi-
ss intoxication, cants and narcotics, and was suffering
of deliberation from cerebral syphilis. Another physician,

who is a psychiatrist, after a somewhat
short examination, gave as his opinion that

f the second de- defendant, at the time of the trial, was
not available to sane. The psychiatrist further testified in

d of homicide, when he response to a hy
defendant had used the amount of intoxi-

pothctical question that if

prepare himself cants and narcotics assumed in such ques-

for the commission of the homicide. State
v. Robinson, 20 W.Va. 713; State v. Davis, state.
52 W.Va. 224, 43 S.E. 99; State v. Hert-
zog, 55 W.Va. 74, 46 S.E. 792; State v.
Dillard, 59 W.Va. 197, 200, 53 S.E. 117; jury verdict was wrong, and that the de-

State v. Kidwell, supra;

State v. Lemon,

84 W.Va. 25, 31, 99 S.E. 263; State v.

Corey, 114 W.Va. 118, 125

171 S.E. 114.

Similar principles have been approved in
other jurisdictions. See Boswell v. Com-
monwealth, 20 Grat. 860, 61 Va. 860; Wil-
lis v. Commonwealth, 32 Grat. 929, 73 Va.
929; Gills v. Commonwealth, 141 Va. 445,
126-S.E, SI;.- Little-v. Commonwealth, 163
Va. 1020, 175 S.E. 767; Cody v. Common-

wealth, 180 Va. 449, 23° Ds

2d 1225. Dirtc-

tor of Public Prosecutions Vv. Beard, 12 A.
L.R. 846; and annotation 12 A.LR. 861.

[8] Some of the wit
by the defendant testifi

resses introduced
ed that he was

grossly drunk. Other witnesses offered by
the State testified that defendant was un-
der the influence of intoxicants but was in
possession of his mental faculties. The cir-

cumstances surrounding
O’Brien; the ability of

the killing of
the defendant to

procure a knife from Burdette’s pocket;
and the fact that he made a connected and
coherent statement to the police officers a
short while after the homicide, coupled
with the testimony of the witnesses in be-
half of the State, support the verdict of
the jury. We cannot say as a matter of

law that defendant’s me!
impaired by intoxicating
extent that he was inca
tation and deliberation.

ital faculties were
liquors to such an
pable of premedi-

tion, he would have been in a comatose

The jury saw the witnesses and heard
their testimony. We cannot say that the

fendant was insane at the time of the fight
in which O’Brien lost his life. We do not
think this record shows as @ matter of
law that defendant was insane at the time
the crime was committed from any cause oF
combined causes. It may be that he was
easily led by his ‘companion, and that his
intelligence was of a low order. Never-
theless, he was at that time legally respon-
sible. He knew right from wrong and the
consequences of his and Burdette’s actions
in brutally, ferociously, and savagely as-
saulting the deceased.

[9] An outstanding feature of this case
is that the killing was accomplished by
means of the hands and fect of Burdette
and the defendant. In M’Whirt’s Case
(decided at the June term, 1846) 3 Grat.
594, 44 Va. 594, the defendant was found
guilty of murder of the second degree.
The court therein discussed the question
whether an accused could be found guilty
of murder in using weapons with which he
had been provided by nature. Judge Lo-
max quoted with approval the saying of
Lord Holt that “ ‘barbarity will often make
malice.” The acts of M’Whirt were char-
acterized as being excessively crucl, and it
was said that the fists of a human being
are not ordinarily regarded.as deadly weap-
ons, but may become deadly by often re-
peated, and long continued blows “applied

STATE v. PAIN
Cite as 63 S.E.2d Fp W. Va. 93

to the vital and delicate
2 parts of the body the ti illi
i eg ecg unresisting man on the vio: angie Hf ee 1 ese P52
a = : nd if to the injury they are S.E. 981; Giath: 9 ie Be ee ei
2 3 cages when wielded by a 127 S.E. 386 See A at Issue vee
g man, you add all the accompanyi a2. re oeck a Oe
anying W.Va. 217, 221, 185 S.E

; ; .E. 205; and State v.

inju ics which the more po e ful a I W V 7
I : wer Fenc F
; ; b y a Iey, 125 Va. 266, 2 Zz; 23 S.E.2d 616.

inflict, there mig F ree

yr rege night be strong ground to in- [11,12] A motion in arrest of judgment
intention not merely to c should be based Brae

bodily hartesbutevein dene 3 ee great etc sed upon.some error of law ap-
’ en death itself.” ing on the face of>tk > :

WI! ‘ : se: . ne record, which

ine sei yen are circumstances of bru- tse the proceedings. Part 1, Volume

. ed. awkins v. Common- will not be arrested ex

wealth, 186 Va. 55, 41 S.E.2d 500. M on- apparent on the rec ee

may be inferred tides th PS vie 38 W.Va. 568, 18 ek 3 Sar b> Pawnee

e use of fists-and av Even -E. 748. See Gerli .

Agricultural Ih % mien ty

stamping by feet, where the i
: sitack te Best isurance Co., 39 W.V:
st : ; : a 3 .Va. 689,
al, savage and violent, and an intention to 24 my ere eee eee
. 445, .E, 604; Dempsey v Poare 75
; s ‘ 79

kill may be presumed f
s rom those circ
stances. Carson v. Commonwealth, 188 Va. POS NT ene Sa eee

398, 49 S.E.2d 704. S : of ion i

: ee . See Maulding v. “ a motion in arrest of j

monwealth, 172 Ky. 370, 189 SW ee mon law has been ented Sac - te

Commonwealth v. Lisowski, 274 Pa ’ the West Virginia crimi ae bs

117 A. 794; Wilson y. State, 136 Tex. 222, fails, Code, 62-2-11 gs sn eel

590. 126 S My a chs ate, ex.Cr.R. WV , 62-2-11. State v. DeBoard, 119
: sien ; Shackelford v. Com- Va. 396, 194 S.E. 349.

pone 183 Va. 423, 32 S.E.2d 682. Cf. A search of this record disclose

peg M Ente 95 W.Va. 132, 120 S.E precluding the court from 58% os ated
A side from the M’Whirt’ eS judeineie f ; ering the

have én ae eae irt’s case, we : of sentence herein pronounced

i ‘ > authority in this jurisdicti and it was not er ;

involving a killing with fists and feet aah the motion,. in Fitest shinee a wa

gment.

as is here shown. We
‘ are, however, im-
pressed with : [13] The j :
ing in ne neon of the reason- to cruel and git as pf error relating
ve :
pringibles: of those nate: ed, and apply the supported in delenit bears oe
the instant case, with ro to the facts of of authority or ar CRE ee RE
in this case the tected 7 observation that the fact that this “pine egy, « Foe
iy Siesr ne aes e = done to death have ‘carcfully exami see en offense, we
’ we = : <2 1 - :
who assaulted ABET Es pea teers and The Legislature has ey : ce eR
shock the sensibilities of pens as to and define crimes and fix Sra nc Seco
In fact, defendant and hi ivilized persons. so only that such sila designe
’ n : n ss
sorted to “the law of ie ig rate re- or unusual or Pipstchccs: pte a
facts established by thi e jungle’. The fense.’” Cohn v Ket h are
malice is Bese ro th Bee Heh SRE SSL Seas 43 45 : Stat ree ee
'e from the acts of ay cheer: , 45; State v. Wood
fendant and B s of de- 68 W.Va. 66 ; ward,
urdette. .Va. 66, 69 S.E., 385, 30 L.R.A..N
1004; State v. W sey
. ’ : ams]
ares a have hereinbefore discussed ©9 S-E. 475; and 24 Mia theca 185,
fa od . hag gue the defendant. Dur- W-Va. 104, 69 S.Ei 476, In ee "4
ght in which O’Bri : ard awe ate v. Wood-
the defendan : en was killed Ward, supra, there is an i : ;
ant had sufficient ti : $1 i instructive ‘dis-
to delib- Cussion relative t th ee
crate and premeditate co o the provisions of Arti
on the cons III, Secti > rticle
of th y : ; equences , Section 10 of the Constituti
Seca: my - which he was then en- Virginia and the “ieee i 6ae
‘ . no ’ Stead endm
tion and et Pine Premedita-, °° the Constitution of the United Sisiee
xis : : ; :
ist lor any particu- with respect to punishments for crime.

ar lengt of time t cie endant witho t ‘mor Vv es_t
I 1S suffi ient if the e ’ u Ce, in k he
h I ) f 10)

intent to kill should i
come into existence at provisi i
sions of Article III, Secti
, Section 5 of the


epeprys geelee TOE EE Ve

BSUS SID

eapeeemtigmne cen ete ate re

96 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

Ith, 135 Va. 508,
; i. Groety v. Commonwealth, h
, a substantial repeti argucs that the
instance amounted to jready given. We 115 S.E. 561. Detetiiant sraee Tr a2
race age Tease . prejudicial error in instruction, as given 3 eérdict of mnat-
ee n ; of av
pay ae ++ the physician to reiter- precludes the return Sc pcente riot
refusing to permit the Phy der of the second degree, an h sed of
: 4 the accu
ate his opinion. the burden was put upon
: ion ? é i roof that
Defendant assigns as error the acts rebutting a charge of crime ae se. We
of the trial court in giving, over his ra he did not commit a higher offense. sas
; ‘ : : ee n sequitur.
‘ection, instructions Nos. 1, 2, 3,4,5,6 5) ink this objection poses a no ah f
9 and 10 tendered by the State. In discussing the instruction am: ims | fi
sesh tion No. 1 the jury Commonwealth, supra, Judge Burks said:
. By States sHch) rdicts “When it is said that ‘the burden is upon
was instructed that one cae ¥ cree ree to reduce the offense from
if the evidence S ~ the pr anslaugh-
could be returned, if x -. the second degree to manslaug
: the first degree, MU murder in az : ea
ranted: murder of ; ‘cide, all that is m
der of the second degree, voluntary ae pit gorge’ upon the prisoner
hter, involuntary manslaughter, an® js that it 1s inc fficient to raise a
Ceti ' The instruction defined the four to introduce evidence su oe eiee icy
not guilty. <s sess ; bt in the minds of the Jur)
offenses, and directed ms Jur. a a ake on offense is murder in the
to the punishments to be hy eee A as to 4 deers » We think the foregoing
i found for e1 secon . Svadlce i
event a verdict was ere : : icable, and paraphrasing
the four. offenses, ee kaa. he ¢ : pan errno that was meant in the
m i
correct, statement of the law, and ni *~ we think th tage. OM sarsinthert
tion of the court in giving It pie 4 sk ges nih 9s it ‘cagasble
ts, 122 W.Va. 93°, upon the de : either
error. State v. Roberts, : : i of the jury whethe
11 S.E.2d 172. See State v. Whitt, 96 qoubt =. < Lenape af the first de-
W.Va. 268, 122 S.E. 742. the homicide

D fend ant bj he ivit of ree In the Tre ort of he case of ims
< oO ected to t

1 list
alth, supra, a margina
5 ne lenges v. Commonwealth, : =. at page
ee on No. 2. and chal 5 : nd in 115 S.E. at pag
aye : re wk some lc ath in his brief. of cases “ie “ Pde dgaek instruction
ab eg 2 ceasls as follows: 387, wherem the @ oved. The
State’s instruction No. 2 reads that where or one similar has been appro eo.
‘ ur ; : A q
wee ee pan eeaet aa the pre- trial court eet - err in giving
lawful homici go ‘ ion No. 2.
an ena in this state is that it 1s murder igen: es
ae Jcerce, and the burden 1s State’s instruction No. y AE
pi: the: second (Cse ee that i omewhat abstract; neverthecicss,
the state of showing, if she can, as being somé tional basis for de-
on “nurder of the first degree; and it gave the jury a Pg ees the
it was ; if he can ining the lapse of time inv
d of showing, 1 » termining . : and de-
upon the accuse : d therefore tal process of premeditation
i s without malice, an mental ; ra: State
net 3 sc heaghies or that he acted law- jiperation. State v. ea be cates:
$ u ’ 4 .
only gee fore not guilty. The -y, Porter, supra. See Shitic :
f ty, and is therefore t . Va. 609, 130 S.E. 777; Jones
¢ rt further instructs the jury that ne wealth, 143 4 197 Va. 133, 45 S.E.2d
uu ; : . ty Se
ict i to the Commonwealth, ee
Rig verdict in this case as Seen & ; ving of
pitebis : muilt if any, the jury should 998. We can find no error in the giving
dg ae iaerition all the evidence State’s instruction No. 6.
ake

S i i ithdrawn
SO es and = Pat eta State’s instruction No. 7 was Wi

d the defen ;
both of the state an

: : ion is in substan- Aras : oint out
oo wines apg ey eee which Defendant in his bricf docs not p
the same form as

Pi * , + t c-
his Court in the case any error in the peer! z alee e oe
d by this » «1. Nes. & 9 and 10, and, a
: AA SIG. SkO\594 MORES Maye test instructions,
of. State v- Rado, - one was ap- ficulous examination wy Sere part of
S.E, 972. RUA ae Sims v. Common- we sce no grounds of on .
eK Mh Va, 736 115 S.E. 382, 387; the trial court in ey am
wealth, . ’ =

and not given.

tially
was approve

STATE v. PAINTER W.Va. 97
Cite as 63 S.W.2d 86

[27-29] The defendant assigns error to in the record. Furthermore, the defense

the action of the trial court in refusing to of insanity predicated upon intoxication,
give defendant’s instructions Nos. 2, 3, 4, use of narcotic drugs and the disease of
5, 7, 14 and 24. cerebral syphilis was presented by defend-
Instruction No. 2, tendered by defendant, ant’s instruction No. 20, as modified and
would have instructed the jury that the given.
greatest offense of which defendant could The modification of instruction No. 20
have been found guilty was involuntary consisted of deletion of the italicized words
manslaughter. Instruction No. 3 would from the phrase “and further that he had
have directed the jury that the greatest two or more yellow jackets”. The court
offense of which defendant could have been further modified instruction No. 20 by de-
found guilty was voluntary manslaughter; leting the following phrase: “if he knew,

and defendant’s instruction No. 4 would had not the power to control or restrain
have instructed the jury that the greatest

offense of which defendant could have been
found guilty was murder of the second de-
gree. It was not error to refuse defend-
ant’s instructions Nos. 2, 3 and 4. We
reiterate that the facts of this case justi-
fied the jury in returning a verdict of
murder of the first degree.

Instruction No. 5, is covered by instruc- . : r
tion No. 6, tendered by defendant and giv- [30] In discussing the theory of ir-
en. There was no reason for repetition of resistible impulse, as advanced in State v.
id testruesion: Harrison, 36 W.Va. 729, 742, et seq., 15

S.E. 982, 18 L.R.A. 224, after an extended

Defendant's instruction No. 7 was given, review of the decided cases, Judge Bran-
and, therefore, an assignment of error can- pon rejects the doctrine of irresistible im-
not be predicated upon its refusal. pulse as a defense to crime, and ably main-

tains that the true and simple principle for
Measure, attempted to give the meaning determining the responsibility of a person

of the phrase “reasonable doubt”, That for crime is: Did the accused at the time
part of the instruction should not have of committing the crime know right from
been given. The latter part of instruction wrong? State v. Maier, 36 W.Va. 757,
No. 14 was covered by defendant’s instruc- 15 S.E. 991; State v. Evans, 94 W.Va.
tions Nos. 6 and 7, tendered by the de- 47, 117 S.E. 885; State v. Fugate, 103
fendant and given. It was not error to W.Va. 653, 138 S.E. 318; State v. Beck-

refuse to give defendant’s instruction No. ner, 118 W.Va. 430, 190 S.E. 693.
14.

his actions”, and substituting the follow-
ing: “he did not know the nature and
consequences of his acts.”

The deletion of the language in instruc-
tion No. 20, indicating that defendant had
taken more than two “yellow jackets” was
proper, for the reason that the evidence
shows that he took two of the capsules.

Defendant’s instruction No. 14, in a

There are some departures from the
Defendant assigns as error the modifi- “right and wrong” test in other jurisdic-

cation of instructions Nos. 17 and 20, ten- tions, as shown by a discussion of the

dered by defendant. Instruction No. 17 theory of irresistible impulse found in 2

would have directed the jury that if they Bouvier’s Law Dictionary at page 1594,

believed defendant “was temporarily insane The doctrine of irresistible impulse does

at the time of the commission of the homi- not preclude the mental capacity of a de-

cide, they should find him not guilty.” The fendant to know right from wrong, but
Court deleted the word “temporarily”, The advances the theory that the mind of a
defense of temporary insanity to an indict- defendant is so diseased that he has no
ment charging homicide has, in effect, been freedom of will and that his powers of
approved by this Court. State v. Alie, 82 self-control and choice have been destroyed
W.Va. 601, 96 S.E. 1011. But in the in- by disease. This is a somewhat refined
Stant case proof of the temporary nature distinction. We think however that the

of defendant’s alleged insanity is not shown mental capacity to distinguish between
63 8.E.2a—7

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 itea aeisa al Aare nemere gant

94 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

ituti imitations, 8th

ighth Cooley’s Constitutional Limi ae
Segre ed., Vol. 1, Page 692 et scq-; -and O’Neil
: 144 US, 323, 12 S.Ct. 693,

Constitution of this State, and “eo
Amendment to the Constitution ¢ he Asay Feil
United States. “Excessive bail shall no
required * * * nor cruel and ees ae
punishment inflicted. Penalties bares a) ae ot ie tee

i aracter and ¢ 4 : :
ge is 7 eg, Article II,. see passage, provides that a sentence of
aie s, Constitution of West Virginia, death shall be carried out eh,
“Excessive bail shall not be required, NOr With some exceptions unne es eee
excessive fines imposed, nor cruel = note. We see no violation. © Be ee
‘unusual punishment inflicted.” _— iaitiogal provisions for i ing ere, un
Amendment to the Constitution of the ysual and disproportiona e ashes
United States. In State v. Woodward, SU- fold that there is Ms meri ‘is ite

the Court pointed out that the con- ment of error with respec -

sit ie ssaeyenrers to a discussion of
stitutional inhibition agal Ae [15] We now come ion of
usual punishment was directed towar the assignments of erfor based = a
former barbarous practices under the com- SE wad Feientioe "© ext: :

ORS Re 2 R : ith th
mon Jaw in inflicting torture .. ~ 10 appellate court will not von A.
tunate criminals. In State v. ‘Dn action of the lower court in ac mitti iba
W.Va. 166, 171, 130 S.E. 426, R ae dence, unless it can sce the eT a ve
ALR. 501, the following language ¥ clearly erred.” State v. Clark, Va.

used: “‘The power of the asia he - 625, 632, 63 S.E. 402, 405.

a . for offenses is = : . u
Gee hE A ES left to the [16] The State introduced, over defend
very Dr ,

gSera hich had ~
ish- ant’s objection, a newspaper W
‘ hat body as to what punis é . f a pool
agent . “adele for the purpose of been picked up by be dae ae +
pee is others from the commission of of blood ing oo oe ian = ae a
eterri : Z objection i
time, and for the reformation of the of ground of z two hours or more after
; 2” Although in State v. Page, su- picked up unt homicide. The gar-
prog Court ot under consideration the the occurrence of the ae ice iin
ge ee ; failure ments of a prisoner pro
: imposed for failure m = é ‘ idence,
pape e oe sepa we think while in jail were aot wraeeg
to retain pr a rer objection, in a trial for no >
; oted appropriate and per- over ob) , ‘ - fend
ee Bee cacmisal case. See Franklin v. it was held that a at wee ae 10
tinent in 4 Sele State v. Baker, he sh ’
ta. 727, 81 S.E. 405, t2R.A. ous: : . idence
oe is ns the case of Inre Kemmler, S.E. 639. The introduction ay < a
Ge 436 10 S.Ct. 930, 933, 34 L.Ed. similar to that here sens ae a o
2 ey 4 : : elc :
— ? . tu- in the case of State v. ,
rt considered the consti ‘ £ the court
7; i oF ie statute of the State of 690, 15 S.E. 419. a ts bo
tiona po k providing for carrying out a in permitting she ar B ee cane
a Si ice by means of electrocution. the jury yore: ees 51 W.Va. 283,
a statute was upheld as not being repug- een ~ nase dae aha Haney
risi of the Constitution. Pes risoner,
gee a kee case adverted case permitted pe cote ected
der gs 2 Po if the punishment provided ene gern: go to the jury as
by statute was manifestly en atl eae Sahdeges which had been ap-
‘ ifixion, PGES OS
ru ca Durga the ae von, SS re ised y the ac

i the whccl, , 4 itted in evi : °
be the duty of the courts to adjudge such ote 39 W.Va. 185, 109 S.E. 710.

: be within the constitutional PBS cipht of testi-
ene ae No such questions are pre- It is ppergreiime het Rs the jury.
prohib h ‘s McElvaine v. Brush, 142 mony 1s to be deter 1 Rene
OS 155,12 Ct. 156, 35 L.Ed. 971. See Even though the: newspaper

STATE v. PAINTER W. Va. 95
Cite as 63 S.E.2d 86

some exhibit and may or may not have quire no discussion, and we dismiss it by
carried weight with the jury, that does not saying that no error appears in the action
go to its admissibility. The newspaper was of the trial court in that particular.

at the scene of the crime, and, according [21] On rebuttal the State was. per-
to the record in this case, the altercation mitted to examine another police officer
started over the solicitation on the part with reference to certain portions of the
of defendant and Burdette to sell a news- statement above mentioned. Such action
paper to O Brien, or to purchase a news- of the court is assigned as error. De-
paper from him, _The relevancy of this ‘fendant argucs that since he did not testify
item is slight, but 1g not entirely absent. in his own behalf the introduction of parts
We do not consider the admission of that of the statement allegedly made by him
item of testimony error.

to the police officer on rebuttal was error.
[17] Objection is made by defendant This record discloses that parts of the state-

to the admission in evidence of the shoes ment were introduced for the purpose of
which Burdette was wearing at the time rebutting the evidence offered by defend-
of the homicide, and the testimony with ant as to his sanity, it being the State’s
respect to blood spots thereon. State v. theory apparently that since defendant had
Henry, supra, is authority for the proposi- attempted to show he was insane, the
tion that the shoes were admissible, since fact that after the homicide he made a
they were one of the instruments used in coherent statement to the police officer
the commission of the homicide. See West- would tend to disprove that theory. We
berry v. State, 175 Ga. 115, 164 S.E. 905; do not think that the trial court erred in
Spencer v. Commonwealth, 237 Ky. 283, permitting the examination of the witness
35 S.W.2d 319. It was not error to admit on rebuttal relative to the statement made

Burdette’s shoes over the objection of de- by the accused to the police officer.
fendant.

F E [22] The trial court refused to permit
[18] The testimony of a witness was a medical expert to testify as to the con-

admitted, over the objection of defendant, tents of capsules denominated “yellow
showing the number of times Burdette j-ckets”, There was no proof in the record
kicked O’Brien. Burdette and defendant sowing the actual contents of the capsules
having acted together in the killing of taken by the defendant. Moreover, this
O’Brien, the evidence was properly ad- record shows that he took only two of
mitted. State v. Cook, 81 W.Va. 686, 95 such capsules. Expert testimony is not ad-
S.E. 792, See State v. Baker, 84 W.Va. missible, when it is elicited by a hypo-
151, 99 S.E. 252; 2 Wharton’s Criminal  thetical question which states or assumes
Evidence, 11th ed., Section 699. This as- facts not admitted or proved. State v.

signment of error is without merit. Taylor, 105 W.Va. 298, 142 S.E. 254. See

[19] The State in cross examining a Cline v. Evans and Tallman, 127 W.Va.
police officer was permitted, over the ob- 113, 31 S.E.2d 681; Williams y. State
jection of defendant, to elicit information Compensation Commissioner, 127 W.Va.
with respect to a prior report made by the 78, 31 S.E.2d 546; Blair v. Clark Coal &
police officer. We can see no error in Coke Co. 107 W.Va. 507, 148 S.E. 849,

permitting the questions propounded to the [23-26] The trial court excluded evi-
officer, in order to lay the foundation for

: : dence of a physician which “was to the ef-
Bere Cate dd sack ch tamet oe fect that if defendant had syphilis, had
bee icc space drunk a large amount of beer and a con-
. siderable amount of other intoxicants, such

[20] Defendant assigns as error the acts and the diseased condition would af-

refusal of the trial court to require the fect the mentality of the accused. The
Prosecuting attorney to show his counsel physician had already testified that in his
the police officer’s statement. This assign- opinion the defendant was insane. The
ment of error is so insubstantial as to re- testimony intended to be elicited in this

—

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3

98 W. Va.

right and wrong carries with it the ca-
pacity to resist an impulse to do hs dl

The modification of defendant’s instruc-
tion No. 26, although adverted to in the
State’s brief, is not assigned as error. bass
case of State v. Manstoff, 118 W.Va. 21 ;
199 S.E. 698, is authority for the modifi-
cation made by the court.

We have discussed in extended detail
all the assignments of error made by de-
fendant. The events and result of this
trial are tragic indeed; but the defendant

63 SOUTH EASTERN REPORTER, 2d SERIES

has violated an old and basic law of every
civilized, social order; @ jury of his fel-
low-citizens has found him guilty of that
violation, and this Court finds no reason
to overrule that finding.

We therefore affirm the judgments of
the Circuit and Intermediate Courts of
Kanawha County, and remand this case to
the intermediate court for the purpose of
fixing a date for carrying the judgment
of that court into effect.

Affirmed.

STATE v. BROWN N.C. 99
Cite as 63 S.E.2d 99

233 N.C. 202
STATE v. BROWN.
No. 721.

Supreme Court of North Carolina.
Feb. 2, 1951.

Clyde Brown was convicted in the Superior
Court, Forsyth County, Don K. Moore, J.,
for rape, and he appealed. The Supreme
Court, Stacy, C. J., held that the evidence
was suflicient to show that the confession
was voluntary so as to be admissible in evi-
dence.

No error.

{. Criminal law G=1166(2)

Use by Board of Commissioners of only
the tax returns of county for preceding
year in selecting jury list from which was
drawn the grand jury that performed the
accusation against defendant was not prej-
udicial to defendant on theory that such use
resulted in discrimination against Negroes,
the race to which defendant belonged. G.
S. § 9-1.

2. Constitutional law €=22l1

The intentional, arbitrary and _ syste-
matic exclusion of any portion of the pop-
ulation from grand or petit jury service on
account of race, color, creed, or national
origin is at variance with the fundamental
law and cannot stand.

3. Constitutional law €=221

A person does not have a right to be
tried by a jury of his own race or to have
a representative of any particular race on
the jury, but has the right to be tried by
a competent jury from which members of
his race have not been unlawfully excluded.

4. Grand Jury ¢=8

The statute prescribing source from
which grand jury list shall be drawn is
directory, and not mandatory, in absence
of proof of bad faith or corruption on part

of officers charged with duty of selecting
list. G.S. § 9-1.

5. Criminal law €=970(3)
Indictment and Information €=137(2)
Motions to quash and in arrest for al-
leged failure of Board of Commissioners
to comply with statute prescribing source
from which grand jury list shall be drawn

were properly overruled where no bad faith
or corruption was shown on the part of

the Board. G.S. § 9-1.

6. Criminal law €=972

A motion in arrest was inappropriate
where the matters sought to be challenged
by the motion were not apparent on the
face of the record.

7. Criminal law ©=519(8)

A confession which is otherwise vol-
untary is not rendered involuntary as a
matter of law and incompetent as evidence
by reason of defendant’s being under ar-
rest and in custody and being held with-
out warrant at time of confession, unless
such circumstances, taken singly or all to-
gether, amount to coercion.

8. Criminal law €=531(3)

Evidence was sufficient to show that
confession was voluntary so as to be ad-
missible in evidence.

9. Criminal law @=519(1), 520(1), 522(1)

A confession is voluntary in law only
when in fact it is voluntarily made, and
such a confession is admissible in evidence
because it is presumed to flow from a
strong sense of guilt or from a love of the
truth, but an involuntary confession is not
admissible under theory that a statement
wrung from the mind by flattery of hope
or by torture of fear comes in such ques-
tionable manner as to afford no assurance
of its verity.

10. Criminal law C1178

Exceptions noted on trial but not
brought forward in defendant’s brief and
in support of which no argument was ad-
vanced or authority cited would be treated
as abandoned. Rules of Practice in Su-
preme Court, rule 28.

—_<

Criminal prosecution on indictment
charging the defendant with rape upon one
Betty Jane Clifton, a female.

On the morning of June 16, 1950, be-
tween 8:00 A. M. and noon, some man en-
tered the radio shop of Thomas E. Clifton
on West Seventh Strect, Winston-Salem,
N. C., found Betty Jane Clifton, 16 or 17
year old daughter of the proprictor alone

ee

wee

St ee we ee sw


G4

REAL

DETECTIVE

stop to get some they’l] have to aban-
don the car soon,” Brawley said.
“Exactly. And they haven’t stopped
so far. Every filling station operator
‘and his crew are on the lookout for
them.”
_ Again the phone interrupted. the
lieutenant. He lifted the receiver, It
was one of the troopers he had sent to
cover the pawnshops.
“We’ve drawn a blank everywhere

up until now,” the trooper said, “but:

this last shop sounds like what we’ve
been looking for. The owner says he
sold two .38 caliber guns to a young
man this afternoon. Says the man had
a pal who waited outside for him.”

“Very interesting,” Taylor ex-
claimed. “Doc says Hill was killed
with a .38. Got a description of the
purchaser?”

“Yes, sir. He was young, not bad-
looking, and fair. The pal was darker
and had a heavy face, a sulky expres-
sion.

Toll of the Terrified Thugs

(Continued trom page 25)

“We're sure accumulating people
who can identify this pair when we
catch up with them,” the sheriff said,
when Taylor relayed the message to
him. ‘Maybe Seal and Ballengee will
see that we do.”

It happened at that very moment,
that Seal and Ballengee were rolling
at moderate speed along Route 60
keeping a sharp lookout for cars
parked along the road or off on the
shoulders where they might be
masked by trees. For a time they saw
none.

“I wonder if we should try cruising
the side roads,” Seal said thoughtfully.

“We'd better go straight out to
Alloy,” Ballengee replied. “We can
cruise around when we get there.”

They were tooling along the USS.
Highway, faces set and eyes sweeping
both sides of the road, when the
silence was suddenly broken by the
car-radio: “Calling all Montgomery
patrol cars! Calling all Montgomery

Carlock burst into tears.

An Unhappy Citizen

When Judge Kurtz Kauffman ordered Ralph Carlock to return
his feur-year-old son to his diverced wife in Les Angeles,
He is shown leaving courtroom.

police cars!...A U.S. army lieu-
tenant has just reported to the
Charleston barracks that he saw the
Hill car parked on Route 60 near
Alloy. According to his report, two
young men were in the car. Patrol
cars will please conduct an immediate
rege ofthe territory indicated. That
eS os

‘Zowie! Here we go!” Ballengee
snouted, “Some action at last. You'd
better unlimber the repeating rifle.
These babies may get tough.”

“It’s right here on my lap,” Seal
came back. “They won’t get a chance
to start anything.”

By now they could see the lights of
Alloy. Ballengee slackened speed and
both he and Seal redoubled their
vigilance. “I don't see the car,” Seal
niuttered, “Maybe they got some gas
somewhere and pushed on.”

“IT don’t think they’d have the
nerve,” Ballengee returned. ‘They
must know by now there’s a dragnet
out after them.”

‘l was thinking they might have

phoned some out of a parked car,”
Seal explained.

‘They may well have done that,”
ballengee admitted. “If they have,
we may be chasing them all night.”

“Longer than that if they cross the
state line,” Seal growled.

“Don’t be so optimistic, you might
cheer me up!” Ballengee remarked
fucetiously. “I—" he stopped abruptly
and nudged Seal. “See what I see?”

He jerked his head toward the right.
Seal peered out the window. They
were a couple of hundred feet from
the Kanawha View Hotel and _ just
across the road from them was a
black sedan. “By gosh, that’s. it!”
Seal said. “It’s almost hidden by the
shadows there.”

Deftly Ballengee backed the car
under some trees and a second later
he and Seal swung themselves noise-
lessly to the road. Rifle at the ready,
the two officers crossed the highway.
As they did so, two figures piled out
of the parked sedan and _ started to
run,

“Stop or I'll shoot,” Seal shouted
after them.

The figure in the lead turned; see-
ing the rifle poised and ready, he
stopped short. “It’s no use, Weber!”
he cried out. “They’ve got a repeat-
ing rifle.’ Instantly the man in the
rear came to a halt.

“Up with your hands!” Seal said.
‘'wo pairs of hands went up slowly.

“One false move and you're dead
pigeons.” Seal said, approaching cau-
tiously.

A moment later he was scarching
them, while Ballengee covered them
with his .45, Both were carrying guns,
loaded and ready for action. Seal said,
“Like to do any talking, at least for
purposes of identification?”

grok a second or two they were
silent. Then they did as they were
told. The blond who had called to
his accomplice to stop identified him-
self as Richard Lee Collins, 22. The
other was Martin Curtis Weber, 21.

Questioned
they had fo
just gotten
“Vou car
tenant,” S:
mind mak:
self. Let’s
Hardly |
their priso
and E. C. (
racks. Gut!
“That one.
lins, “has
seen his
Called the
Seal.
Seal noc
he said.
When +
subjected
questionin
everythins
-patience.
“Get wi
snapped.
the murd
gun. We;
experts 4
means. W
ness to thi
talking a |
Collins
fear show:
“Okay, Ci
The mu
because }h
that they
wanted a
“We decid
the kind
somebod\

“Yes,” ?
won't hel
Sernsk\
way.” T!
“There's «
That's” th
beating
“How «
Creadie a
“Becau:
Street, ri
Red Cro:
there an
the gras:
ready to
abruptly
say anyt!
McCre:
Brown |:
proves si
back wit!

Hu

tion:
Foye and
force of ¢
ing the s«
Seaman ©
piece of <
parently
And thi

telephon:

woman ;

ocean.”
“And I


yy Heu-
to the
saw the
60 near
rt, two

Patrol
amediate
ted. That

sallengee
t. You’d
ing rifle.

ip,” Seal
a chance

lights of
peed and
led their
car,” Seal
some gas

nave the
i. “They
i dragnet

vht have
ked ear,”

me that,”
iy have,
| night.”

cross the

you might
remarked
{ abruptly
at I see?”
the right.
mw. They
feet from
und just
n Was a
that’s itt”
en by the

i the car
cond later
ves noise-
the ready,
» highway.
piled out
started to

i) shouted

vsned; see-
ready, he
-- Weber!”
a repeat-
in in the

Seal said.
ip slowly.
u're dead
ching cau-

searching
‘cored them
rying guns,
. Seal said,
at least for

)

they were
s they were
d called to
atified him-
ns, 22. The
Weber, 21.

ee ee

aici niitiin stat ik. a

Questioned, Collins first insisted that
they had found the car parked and had
just gotten in to rest awhile.

“You can tell that story to the lieu-
tenant,” Seal snorted, “if you don’t
mind making a prize fool of your-
self. Let’s go.”

Hardly had they checked in with
their prisoners when Troopers Coen
and E. C. Guthrie arrived at the bar-
racks. Guthrie looked at the prisoners.

“That one,” he said, indicating Col-
lins, “has a record. I’m sure I've
seen his mug somewhere before.
Cale the lieutenant?” he added to
Seal,

Seal nodded. “He’ll be right over,”
he said.

When the lieutenant arrived ‘he

subjected both prisoners to rigorous
questioning. At first Collins denied
everything. The lieutenant finally lost

patience.

“Get wise to yourself, Collins,” he
snapped. “We've got the bullets from
the murder gun and we've got your
gun. We also have very fine ballistics
experts and you know what thal
means. What’s more, we have a wit-
ness to the shooting. Now, how about
talking a little sense?”

Collins hesitated and a flicker of
fear showed in his eyes. He shrugged.
“Okay, Copper,” he said, “I’ll talk.”

The murder had happened, he said,
because he and Weber had decided
that they had to have a car. ‘We
wanted a good one,” he said brazenly
“We decided that the best wa to gel
the kind we wanted was to hold up
somebody.”

Unemotionally he went on to relate
that he and Weber had seen Hill in
his car waiting for the light at the
intersection of Lee and Truslow
Streets. They had gotten into the car
and had forced the 39-year-old sales-
man to drive to the spot behind the
Edgewood Country Club.

“When we got there,” the killer
pursued, “he didn’t want to get out
but I stuck the gun in his ribs and he
had to. I shoved him ahead of me into
the woods and let him have it. I had
to kill him or he’d have squealed, on
me to the cops.”

Weber’s story was that Collins had
planned the whole thing, and that he,
Weber, had had no idea that Collins
meant to kill anybody. “I thought he
was just going to take the car and
scram,” he said.

On Friday morning, Spat 19, evi-
dence was presented to the Kanawha
County grand jury. That same day
both Collins and Weber were indicted
on a charge: of first degree murder.
They were being booked at the county
jail when Deputy Sheriff Bradford
Carte stared hard at Collins.

“I knew him when he was here be-
fore in 1943,” the deputy said. ‘“He’s
a hard customer.”

Collins’ police record bore the dep-
uty out. He had served time in the
boys’ industrial school at Pruntytown
for larceny in 1940 and had been
lodged in the county jail in 1943 for
assault, battery and felonious cutting.

The two killers were tried sep-
arately, after Prosecutor Frank
Taylor announced he would seck a

conviction of murder in the first de-
gree without recommendation for.
mercy, which would make the death
sentence mandatory. :

Citing the fact that fecling in the
community was running so high
against the two men that he doubted
that his clients could get a fair trial
in Charleston, John V. Brennan, de-
fense counsel for Collins, requested a
change of venue. Judge Cyrus Hall
denied this petition.

Collins was brought to trial on
Tuesday, May 14. ‘Three days later,
the jury brought in a verdict of guilty
and Collins was sentenced to be
hanged on September 14. After sen-
tence was pronounced, Collins, who
throughout the trial had shown neither

‘interest nor emotion, went on a ram~

page, cursing the judge
tor and saying that he
them both in hell!

Twenty hours after Collins was con-
victed, Weber pleaded guilty to the
charge against him. After the evi-
dence against him was in, however,
his counsel pleaded for a continuance
of the case on the grounds that Weber
had such a low grade of intelligence
that he was not responsible for his
actions. The prosecutor, however,
maintained that he knew right from
wrong. After deliberating for two
weeks, Judge Hall sentenced Weber
to life imprisonment.

and prosecu-
hoped to see

Epiror’s Note: To protect an in-
nocent person, the name Anthony
Jennings, as used in this story, is fic-
titious

REAL

DETECTIVE

“Yos,” McGarry admitted. “But that
won’t help you.’

Sernsky shrugged. “It’s better that
way.” Then he turned to Durliny.
“There’s one thing 1 haven't told you.
That’s this: Harry really started
beating Marian back in Los Angeles.”

“How can we know that?” Mc-
Creadie asked doubtfully.

“Because it happened on Menlo
Street, right close to a palm by the
Red Cross Center there. You look
there and you'll find some blood on
the grass.” Sernsky seemed to be
ready to tell everything, but just as
abruptly he stopped and refused to
say anything more.

McCready telemhoned Captain
Brown in Los Angeles. “Tf this
proves straight, we'll bring the guy
back with us.”

HILE Sernsky was being qucs-
tioned, Deputy Sheriffs Koy

Foye and Howard Bowman and a large: °

force of Coast Guard men were conib-
ing the scene of the strange attack on
Seaman Seathen. They found a he:vy
piece of automobile spring which «p-
parently had been the weapon used.
And they also found what they
thought were traces of blood on the
jagged rocks leading down to the sca-

wall.

“We think,”
telephone, “that this
woman and threw her

Bowman reported by
bird killed the
body in the

ocean.”
“And I think you’re probably very

“We'll be

right,” Durling agreed,
down that way very soon.”

The party of Ventura County of-
ficers and Los Angeles officers left
immediately for the scene. While a
minute search of the area continued,
Chemist Pinker. began a careful study
of the trail of blood. Long experi-
enced in such things, Pinker definite-
ly established the trail to the seawall.
Then, he found also blood spots on the
top edge of the seawall.

“Gentlemen,” Pinker announced,
“you'll find a body somewhere in the
Pacific Ocean.” ,

Back in Los Angeles Hurst and
Lohrman were again on the move.
They located, without any trouble,
the blood spots on the grass by a palm
tree in front of 1137 Menlo Avenue.
A few feet farther down the street
they found a second blood spot.

“What's happened,” Captain Brown
concluded when he heard their re-
ports, “is that this monkey killed that
woman here. Then he drove up the
coast to dispose of the body. The Coast
Guard patrolman came along just as
he was finished heaving it into the sea.
He decided to kill the man to prevent
any witnesses sea» around.”

“T. guess he would have,” Lohrman
said, “if that dog hadn’t been there,
judging from the story.”

“Right,” Brown nodded. “I'll get in
touch with Dick and Bob up there and
have him brought here. You fellows
find out where Dave Berger is and
wire him to come back as soon as

Look for the Love-Mad Murderer!

(Continued trom page 21)

possible, We'll need him around.”

Returned to Los Angeles, Sernsky
clung to his last story as told in Ven-
tura. “You don’t think ’'d harm her?”
he said with apparent indignation.
“Why, Marian was my friend’s wife.”

“You're lying to us,” Brown told
him. “You didn’t slug that patrolman
for nothing. You didn’t want any wit-
nesses around.” -

Sernsky shook his head. “That’s all
I have to say. Anything else I have to
say, I’ll tell it to Dave when I see him.”

The intimation by Sernsky that he
might have something special to tell
Dave Berger spurred the officers’ anx-
iousness to see Berger return to Los
Angeles. They had only to wait until
the following day when he arrived by
plane from the east.

Met at the airport, Berger was pro-
foundly shocked by the possibility that
his wife had been murdered. He was
further shocked by the suggestion that
she had gone dancing with Sernsky—
or Peterson, as he was known at the
war plant—or with any other man.

“T can’t believe it,” he said. “Marian
disliked Jack. She wouldn't gO out
with him. I know she wouldn’t.”

Berger was taken to Ca tain
Brown’s office and questioned closely.
He revealed that he had befriended
Peterson, employing him while he was
on parole, He had taken special efforts
to help him. He also revealed that he
had siven his wife $65 in cash just be-
fore leaving for the east, and that she
was to have collected $35 in rent on a

65


been robbed. Maybe he got in somebody’s hair po-
litically.”’

“fhat could easily be,” the lieutenant said. “He was
honest and he was strong for reforms of one .kind or
another. He could have shown up some crook or spoiled
someone’s graft and—wham! They let him have it!”

“The widow suggested he might have come up against
some crook while he was doing charity work,” the
sheriff said. He gave Taylor the gist of the interview
with Mrs. Hill.

“It’s an angle,” Taylor said. “I’ll phone one of the
officers of his lodge and see if they have any ideas down
there. What else have you got?”

~ “Not a heck of a lot,” the sheriff admitted ruefully.

He reported briefly what had turned up so far. “Of
course it was a break having Anderson on the spot but
his description was too vague to be very helpful at this
stage of the gamc.”

“If we can find the gun maybe we can trace the
man,” Taylor said. “I’ve sent men out to cover the
pawnshops, to see if anybody has bought a gun re-
cently. We can check for caliber when we hear from the
coroner.”’

“Sure,” the sheriff agreed. “I don’t suppose many
guns are sold from day to day in those places. It will
save time to have a list ready when Doc’s report
comes in.”

While the sheriff and Taylor were discussing the case,
Ballengee and Coen were visiting the few jewelry and
cigar stores where it seemed likely that they might find
imported lighters. At the fifth they struck pay dirt!
The lighter had been sold to Anthony Jennings, a

.

The spot where an cye-witness saw a grim murder
take place. Hut Fate prevented his interference.

a
* <
a te
es
* ‘

i - % :
Sees? Seems ee

aS 3

8:

wealthy man, living in Charlestoi’s most fashionable
residential section.

The officers hurried to his home is rapidly as possible.
Jennings was not at home but his vife told the troopers
that he was at his club. Coen thnked her and he and
Ballengee returned downtown.

At the club the doorman told thm that Jennings was
inside. “First room on the left,” hesaid.

Coen didn’t go in immediately “Tell me,” he said
to the doorman, “is Denver Hill amember here?”
“Sure is,” the doorman replied. ““A mighty fine man,
too.”’ ‘

“He a friend of Jennings?” Cen inquired casually.

The doorman laughed. “Anythng but!” he declared.
“Seems like Hill was instrumeita] in getting som
gambling place closed up a while back. Jennings hac
a share in the place and dropped : lot of dough when it
was padlocked. They were fighting about it again on],
yesterday.”

“T see,” Coen said. “Well, we'll just have a word
with Mr. Jennings!”

ANTHONY Jennings, a sleek, urbane citizen with
piercing black eyes, was highly indignant at the
suggestion he could have had anything to do with thc
murder of Hill. Certainly the lighter was his; he'd lost
it several days before when he was hunting golf balls.
He hadn’t been near Edgewood drive for severa] days
It was true, he hadn’t gotten on any too well with Hill,
but he didn't go around killing people just because he
didn’t get on with them.

“Where were you at four-thirty this afternoon?’’ Coen
asked.

“J was driving back to town along Route 60,” Jennings
said. “I didn’t stop on my way back and I don’t believ«
anybody noticed me. Say, wait a minute!” He stared
at the troopers. “What time did you say Hill was
killed?”

“Four-thirty this afternoon,” Coen told him.

“Well, that’s funny. At five-thirty I could have
sworn Hill's car passed me this side of Alloy. At least,

Sheriff D. Earl Brawley. It was his case and the
dispatch with which he moved netted two killers.

|

2


mnable

ssible.
OPers
© and

, was

said
man,

ually.
lared.
some
s had
nen it
only

word i

with
at the
th the
“d lost
balls.
} days.
h Hill,
use he

fier

* Coen

nnings
pelievc
stared
1] was

1 have
t least,

ad the
stern.

the car I saw had a kink in the right fender just like
Hill’s had.”

“Did you see who was driving?”

“No, I didn’t payiany attention.
granted it was Hill.”

Coen and Ballengee took Jennings downtown with
them in spite of his protests. At headquarters, Licu-
tenant Taylor put the suspect in charge of a trooper and
sent for Anderson. While he waited for Anderson to
arrive, Coen relayed to Tayior Jennings’ claim that he
might have seen Hill’s car on Route 60. Taylor bright-
ened up. :

“IT wonder if hedid,” he said, “or if he’s just dreamed
up a good story io make us believe he wasn’t at the
scene of the killing. It’s. worth looking into, though—”
He stopped as the phone on his desk pealed. He an-
swered it, listened, asked a few questions and hung up.

“News?” Coenasked.

“Yes, thank Jeaven!” Taylor said. “That was a
garage proprieto! at Belle. Said two men,drove into
his place around live ogclock in Hill’s car. They wanted
gas, but when the at endant asked them to pull over
nearer the pump they said they were in a hurry and
drove off.”

I just took it for

TH phone rang again while the lieutenant was speak-
ing. This time it was the coroner with a report that
the slugs in Hill’s body were from a .38 caliber gun and

that the one which had entered the left shoulder had.

pierced the heart causing instant death.

The call completed, Taylor passed the information
on to his subordinates. “All we need now is the gun,”
he said. He thought for a moment. “We’ve drawn a
blank on the Masonic lodge inquiry,” he said. “Nobody
there has known anyone who might have disliked Hill
or who had quarreled with him. I guess the next step
is to try Route 60 on the off-chance that Jennings is tell-
ing the truth.”

“Okay,” Ballengee said, getting up.

“Take Seal with you,” Taylor said.

Ballengee and Seal gone, Taylor phoned the Mont-
gomery state police and relayed to them the infor-

An innocent mau paid with his life for owning this car but it,
in turn, trapped his brutal assassins on a murky country road.

mation he had received from the garage proprietor
at Belle and the possibility which Jennings had men-
tioned. The officer to whom Taylor spoke promised com-
plete cooperation. “P}] send men out to search the high-
way immediately,” he said.

As Taylor hung up Anderson entered the office.
“Sorry to trouble you,” Taylor apologized, “T’ve brought
you down here to look at a suspect.”

“No trouble at all,” Anderson was saying when a
trooper led Jennings in. Anderson looked at him
quizzically.

“Let’s see you run a few steps,” Taylor ordered.
Jennings obeyed.

“Now let’s see you walk.”

Again Jennings complied, albeit with poor grace.

“Okay, take him back to his cell,” Taylor ordered.

Jennings gone, Taylor turned to Anderson again. “Tf
you have any idea he’s the man,” Taylor said, “we'll
take him out to the murder-spot and have him perform
for you there.”

Anderson frowned and shook his head. “That won’t
be necessary,” he said. “At first I thought he might be
the man. He’s about the same build and his hat and
coat are like those the killer wore, but he hasn’t got the
same gait and I’m almost positive he’s older.”

“Then you wouldn’t swear that Jennings was the
man you saw.”

“J could almost swear he wasn’t,” Anderson said.

Taylor nodded. “Well, thanks for coming anyhow,”
he said. “Too bad we got you down here for nothing.”

“That’s all right,” Anderson assured him, getting up
to go. “I'll be glad to help in any way I can to put that
butcher where he belongs.”

As soon as Anderson had left the office, Taylor im-
mediately ordered J ennings’ release. “And that’s that,”
he said to Brawley who had dropped in to ask about
further developments in the case. “Now let’s hope
this Highway 60 won’t turn out to be a pipe dream. The
Belle garageman heard the men saying they were
pretty low on gas.”

“That means that unless they (Continued on page 64)

Mr. Denver Hill was a chance
victim of two callous

thus.

25


(Continued from page 27)
Brawley had remembered, too, that
Collins was. a car. thief, and had
fired a 38 revolver at a man in

he was arrested in ’43.°

yo ab y Still has it:
“Thought you'd: want ‘to know
quickly,”
the bullets match. I mean, it’s cer-
tain enough to warrant any ac-
tion you plan. W’ll have to make
further comparisons for court pur-
rz ”

It was enough for the officers.
‘With highways well barricaded, it
»< was possible Collins, who could
»» hardly know he had been identi-
P ed, had slipped home by a cir-
cuitous route.

- Brawley trailed the. two radio
-cars full of heavily armed patrol-
men that sped to the Gardner
Street address. Approaching the
-two-story house. without warning
sirens, the cars were halted quiet-
ly and the men poured out. They
“quickly circled the place with saw-
» ed-off shotguns and sub-machine-
guns.

Strong spotlight beams from the

alleys. the instant Brawley and a
lieutenant began banging on the
downstairs door. Surprised neigh-
‘bors were shouting to each other
.and a crowd was forming by the
time Collins’ pallid and fearful
oung ;
with a baby clutched‘in her arms,’
The killer wasrt’t.there, Four. of-
ficers made sure of that by search-

other.
band started off for work that’

‘he often was away nights, and
*claimed she knew nothing of eith-
er his activities or-his pals.

“I .almost. always. stay “home

tearfully. “Twice a month, maybe,

_ DUCKED LEAD

he poker game fracas in which
“The slug: was. dug out of. a
wall,” ‘he said. ‘But we didn’t get.
e gun: from Collins. He prob-
“One of the technicians hurried.

he said: “We believe’

' parked cars stabbed into’the dark |

wife answered the door,

ng from cellar. to. attic :while>
rawley questioned the distraught °
She told -him her. hus-.

‘morning as usual, She -admitted ~

ith the baby,” said Mrs. Collins ©

she takes me out to dinner. Rob-

‘> ee ——_— Luipi
«pi Rey ing iat t,o ee

UES Poni te ah atl

Wei ae,

Bim sr a
“How “about

of the “E.0:U. and: prowler » Hill
hid cHidsed: 2 tse te

and’ called’ each other: by’ their first,
names’ when we ate ‘there, is all.”

Guards were posted,-and the
raiders: departed. |The ‘sheriff

phoned Brabban instead-of return- -

ing to headquarters. The chief was
sorrythe raid failed“ He: said.the

“gamblery: Cahill appeared -to :/he:
- keeping: undercover, and: the man-
~ hunt -around* the “Alloy“and ‘Belle
-eountryside™so “ far™was) a: bust.

“Only*thing is this chap Berger

seems to be’acting kind of funny,”.
said the «chief. “I'-can*understand :

Cahill ducking into’ a foxhole: if
he got it. over the grapevine that
the boys.are looRing for him. “He
knows there are ‘plenty of reasons,
even. ‘without’ murder,
ger’s different-” . fee,
_ Brabban explained a detective
had talked to the restaurant man’s

wife. She was on pins. and needles. °

Berger, it appeared, always was
punctual. But he hadn’t shown up
for dinner, nor had he phoned.
She said he had been worrying.
over something the past. two
weeks. He hadn’t been himself. -

“She was afraid we’d found him-
hinging from a tree when the. of-
ficer rang her bell,” the chief re-
lated. 1 : "A

“Keep after that angle hard, will
you?” requested Brawley.

The ‘sheriff glanced ‘at his poc-

‘ket watch and noted it was 9:30

P. M., before he climbed: back into
his car. Nearly four hours. had
spun by since the fugitives abdn-
doned -Hill’s sedan, How had-they

eluded ‘sucha. close-meshed -net? -

Had the murder and“escape been |
-planned with ‘diabolic’cleverness, ~
with perhaps: another, car°and. a’

luck?

Brawley had’ # sudden, curious»
feeling that he had ‘overlooked :

something far back’ in. the inves-
tigation as he sped off southward.
Just: what remained elusive as he

drove slowly. down .Alloy’s. main .

thoroughfare, watching for Charles
Street. ° Hee Ay eet a © Va cht TS Wr) es

Seid Wiis eee seme Set
ert Reeves? No, .F never, heard:oft +

. a Harry Berger?’
_ ~The: young woman looked startl-.’
_ ed. «Why, yes. We: usually went -
to hig restaurant. Is;-he, — how.
yy could. he be mixed-up’ in ‘this 2”
'-. “Are'he and your’ husband good:
friends?” asked Brawley,. thinking

“Well, they—they: “walked: some.

‘But “Ber- —

| A state: police car drew sharply
ed, “Hi, sheriff! Just got part of
a radio message. Something’s up
at the barricade. I’m:not-sure, but
I think they nabbed “someone.”

» “Thanks,” yelled: Brawley. He
’ Clicked..on: his. siren, tore out of
the suburb and on down through.
' Belle.at, an 80-mile clip.. Coming
to a jarring halt when the: white
sawhuck line barricade bobbed up
in his headlight beams, he saw
Taylor was. energetically’ there.
The lieutenant was issuing orders:
over a: two-way portable “radio
and.tersely directing troopers and
deputies ‘who swarmed up in pa-.

trol cars. A slim, swarthy young: - cae

‘man stood nervously at* his “side.

Brawley ‘hurried to them» Tay-, =! »
lor explained that. the youthi:had se

;.come’ walking: up: ‘the highway. a
few’ minutes before: “The killers
flagged him down about ‘a: half
mile to the south,” the lieutenant
said. “He thought they were of-
ficers- and stopped. . They ‘drew
guns, ordered him out, and-blared. ,
away.” oe ees
“Lucky they. didn’t kill you,

son,” said Brawley. ~:~

' "Yeah, guess I was,” said the
. youth. He laughed shakily. “They
- weren’t foolin’, I saw that fast

“up alongside, and the driver shout-*. ’ “S

=-

and’ got out like a Jumpin’ Jack.”_ >

Taylor had flashed a radio alert,.'.
describing the car, to authorities
in. the adjoining counties of Ra-
leigh, Fayette and Boone. “Those
fellows must have skirted way
around this spot a long time ago,”
“he said. “No wonder we weren't
getting anywhere up ‘around Al-
loy.” He started for his car, called
over his shoulder, “Coming on
down?” _ oy :

“No, I’d be out of my territory
a few miles south anyway. Ill
keep tabs up this way. ‘They °
might backtrack some way or oth- ..~
er. Wait up...” He walked over °
and explained about Collins. .

wake ‘of two. others. Only two ~

and youth remained. Brawley felt. -
- as though he were stariding’ on a

deserted: sector of a battlefield, ~~
- the smoke and din .fading-away.

He asked quietly, “Where do you ©

live, son; and what’s your name?”
“The youth said he was Sam D’-

Iorio, of Charleston. He eagerly:
accepted -the offer’ of a lift... 2. |

»as he ‘drove‘northward, whether.

Taylor's car roared away in the.) ~

deputies who had taken over man- |:
Akar ar ning of the. barricade, the sheriff,
change of clothes awaiting the’
‘ pair near the:-Kanawha View Ho-
tel? Or were: they just: fools for

2 ees 3 :

“What. did these fellows Iook> « -
“ like?”> asked: Brawley, wondering

p ere

y

Tite

m
} rv
Y

4

there ‘migh'
where in the

“Gee. I...
about. that,’
“It’s. awfull

_. know, Thes

right hand

;,me get ‘out
the wheel.”
_ “Didn’t-o1

and show y

~ Brawley, pu

youth nodde
he look like
hat?”

D’Iorio w
then blurted
Tire

“Yow. cou
suede. jacket
couldn’t you
“Yeah. Th

- in had a suit

The sherif
youth’s lap.
‘ly clasping
slender hanc
began ta gi
mind like s
checked ther
Reeves’ hou

He told [I
few minute
Looking ar<
dim lights o
Hotel only
mile away.

Reeves w

~ tall, dark-ha

. >

years ‘old, s
verge ~of sh
of the sherif:
ily, he led tt
room and

Brawley dec
and at once
the note. “Y:
ver Hill, did:

pe ed...

2”Reeves’ p

green. He f

between thir
“matches ligh

sats; Ss guess
I shouldn’t

much,; I. .

count of the «
~ Brawley ht
wer my ques

“Yes, I ow

’ mean nothi
His voice r

~~ heard Hill »

.... that not

ees

‘ks department.

v seems to be a bit
mentally,” said the
don’t know who he
told me a couple of
’ was pestering him
to think ‘Red’ could
the payroll witha

igers. I don’t believe *

hreats, though. ‘Red’
y worried.”
tent sheriff {finally
1 who laid another
sundation supporting
nst Cahill. The poli-
ill had encountered
featured gambler as
ut of the Masonic
sday afternoon. He
2d an amiable greet-
sneeted, “When are
mp the lid on dom-
rbles, Blue Nose?”
y.
details, the victirn’s
ibered suddenly a
had been walking
irb at the time. “He
e thought Cahill had
ld’s smartest crack.
whether they were
have been, What?
out twenty, medium
lid built. Hair? .. ,
h blond.”
iting a blue jacket?”
eagerly.
e suit, though. No

YY cut in with an
ll, and the sheriff
off the conversation.
\I. Ballengee was
Alloy, a suburb
leston. Hill’s sedan
1, abandoned!
sideroad near the
Hotel, just outside
Ballengee. “Jt must
e some time. because
ol. There’s nothing
and the gas tank’s
got a radio, and
ist have heard the
her lammed it on
1 another car.”
to the police garage
‘an,’ said Brawley.
heriff and Taylor
d orders flashed by
ies and troopers. to

Marvin Weber, who got life im-
Pprisonment for his role in this
crime,

helped him get started; and this
seven-fifty seems to have been to
keep him from going bankrupt. It
should have been paid
couple of weeks ago.”
“Did you locate Berger?” asked
Brawley.
* “No. He hasn’t been at his home
or restaurant since five o'clock.”
The lieutenant hurried out, and
Brawley phoned Chief Brabban.
He told him about the I. O. U.

_Brabban promised ‘to put two: of

his best sleuths on the lead at
once. The chief said Anderson
still was painstakingly studying
photos in the record room, and
technicians were trying to compare
the murder bullet with the scores
filed as: evidence in “previous
crimes. :

“That comparing is a tough
job,” said Brabban. “Théy might
work for days .. . and still nothing

1é sector and comb ] come of it. The men have agreed
to stay on most of the night,
down,” said the though. if we think it’s. worth-
, about this I. O. U. | while:”

| Harry Berger. He The sheriff said he thought it
South Charleston, was, and hurried to the police
ll restaurant there. garage. Troopers Ballengee and
uple of calls. Hill W. R. Seal brought in Hill's sedan,
| shortly -after his arrival. Seal
handed Brawley a calfskin brief

a rer eliaeiiit a os waabans i ial aii nail ita nee N

back a.

‘case as he got out. “Seems to be

the only.important thing of Hill’s
left, in, the car.’

Sergt, William Boone, tech-
nician of the state police bureau of
criminal investigation, arrived.

+ Brilliant. lights were installed in

the car, and Boone and the sheriff
examined it thoroughly. “Plenty
of fingerprints,” announced the
sergeant elatedly. He started dust-
ing them. ‘

Brawley went through the glove

compartment, but found its con-
tents uninteresting. Something on
the right hand. floorboard that

. glinted in the bright light caught

his: eye. He bent closer, and saw
many stiff, hair-like particles scat-
tered about. Noticing-some on the
seat also, he asked Boone what
they were.

The scientific. sleuth scraped up
several and studied them through
a hand magnifying glass. “Why,
they’re glass fibers,” he said final-
ly, and glanced around the car.
“I don’t see where any glass re-
pairs have been made lately.”

The word “glass” nudged a re-
cent memory in the sheriff’s mind,
In a moment, it flashed out clear-
ly, and- he said, “Would a man
who worked in a glass factory be
apt to have such fibers clinging
to his clothes?”

“Sure .. . especially to tweeds.
They might get caught in the trou-

_ ser cuffs too. Got an idea?”

“Thave!” said Brawley. and hur-
ried to the chief’s office. At his re-
quest, Brabban had his ballistics
men turn from their methodical
examination of slugs by their
numbers and concentraate on one
filed under the name of Richard
Collins. The chief also sent an
officer to dig out the man’s pic-
ture for Anderson to view.

The sheriff and chief scrutiniz-
ed the’contents of Hill’s briefcase.
They found a note scrawled on
schoolpad paper that transformed
the jobseeker who had been troub-
ling the victim from a mild pest
into a sinister suspect! It read:

“Mister Hill. .I told you f ain’t
looking for no gravy train ride.
It’s a matter of life and dying.

I got to have that outdoor park

job account of my health. You
quit stalling and get me on that
job, or else. You're going to be
plenty sorry. Anser.”

“Man!” said Brabban. “You've

got something there! But he did
not sign... .”
“Here it is,’

’

said Brawley, turn-

Richard Collins played his last role
on the gallows.

ing the sheet. Written on the back
was: “Robert Reeves, 203 Charles
Street, Alloy.” The sheriff shov-
ed the threatening letter into his
pocket. “I'll look him up myself.
But 34.0”

The officer came back from the
record room and cut in excitedly,
“I think you've hit it right, sher-
iff. Anderson is nearly convinced
Collins is the killer, Here’s the
record.”

Brawley noted briefly that Rich-
ard Lee Collins, 22, of 277 Gard-
ner Street, had followed the sor-
did pattern a stay at the
Pruntytown boys’ industrial school
for larceny . .. a term for auto
theft at Chillicothe, O.,....a
term in Kanawha County Jail in
1943 for assault with intent to
kill .. . and now .

“How did you hit on Collins?”
asked Brabban.

The sheriff explained briefly
that when. the county parole of-
ficer reported the week before he
mentioned that Collins had gone
to work at the nearby Kanawha
City glass plant of Libby-Owens-
Ford. The young ex-convict was
under court order to give by-
monthly accounts of his activities.

(Continued on page 32)


ed someone.”

ed. Brawley. He -.\~;
ren, tore out of .‘*

n down through, ©
ile clip. Coming’

when the: white i

icade bobbed up
beams, he saw’
rgetically there.
is issuing orders

portable “radio
ing troopers and

irmed up in pa-. |.
swarthy young“) <”

isly at-his “side.

| to them, Tiga: t
the youth-had ~

Bc: highway. a

car drew sharply, es;
the driver. shout-~
Just .got part of °
Something’ S$ up.
('m not. sure, but. peat

e! “The killers" =

n ‘about ‘a half:
” the lieutenant
t they were of-

. They drew

out, and blared .

lidn’t kill you,
was,” said the
| shakily. “They
saw that fast

. Jumpin’ Jack.”

ed a radio alert,_
, to authorities
counties of Ra-
Boone. “Those
e skirted .way
long time ago,”
der we .weren’t
up ‘around Al-
r his car, called

“Coming on

of my territory
h_ anyway. I’ll

is way. ‘They |

me way or oth-
te walked over
ut Collins,

ed away in the
ers. Only two

aken over man- ©

de, the sheriff,
1. Brawley felt
stariding on a
a_ battlefield,
. fading -away.
“Where do you
‘s your name?”
> was Sam D’.
n. He segcey.
of a-liftia =
» fellows: look”
ley, wondering
ward, whether.

5 \

touring, and. the dash: light was...
re

~ tall, dark-haired man,

* mean nothin’.

awfully. ‘dark. nee yout
gh hand® Side: and. ‘they:
che ibe ee oon ane
~ “Didn’t-one- of: pons eae ‘ever

youth nodded, he said; “What did ®
Se mcok like? Was. he vesting a:
at?” “ :

ee D’Iorio was silent a cnontent:
ae then blurted, “Gee, I don’t know.

you see, I’ve: ‘got an old .

on: the’ fritz. - Those’

"You Soalit: teil, it he: had a”

“hie jacket. on, or. a suit coat,

couldn’t you?” ;
“Yeah. The fellow who: igh

in had a suit coat.”

The sheriff glanced down at the,
youth’s lap. D’Iorio was nervous-
ly clasping and unclasping _ his
slender hands. Vague suspicions
_ began. ta gather in thé» sheriff's
mind like storm ‘clouds, but- he
checked them as he halted before
Réeves’ house in Alloy,

He told D’lorio he’d be only a
few minutes, and stepped out.

Looking around, he noticed’ thee

dim lights of the Kanawha’ View"
Hotel only about a quarter of a.
mile away.

Reeves .was eine alone. The
about 30
years-old, seemed almost on the

- verge~of shaking: apart at sight

of the sheriff’s star. Walking jerk~

ily, he led the way into the living- \

room. and slumped ‘in a. chair,
Brawley decided on direct attack,
and _.at once confronted him with

the note. “You wrote that to Den- °.
Be ver Hill, didnt you?” he demand... ~

wet !
“Reeves?

“Le BUCSS:...°% Quéss”.' 3. kak’.

I shouldn't drink and° stioke ’ so
much,;-I . . . I’m jittery on ac-
count of the drinking.” -

Brawley hunched “forward, “ Ans- ae

Wer my.question !”

“Yes, I. wrote it. But. it don't
I was just mad.”
His voice rose sharply. “I: just’

heard Hill was killed. ‘TI stippase:.
. that note .

and,, show: ‘you~ his. gun?” asked.-
~ Brawley, puzzling: » ‘When - thes

‘the sheriff called -Brabban.
trace had: yet been found of the

pallor. turned” a. sickly i
_gteen.. He fumbled a cigetet in - if
between thin lips, and used three st
ae “matches - lighting it. ‘He coughed,

you think . ft

ul mean. ” 4 as

nigee Wek
eMers

Rees pa ania
. These. guys* -were . on’ the: 4

bat ities

Brawley, heddlieg while he list-
' ened to the anticipated alibi, notic-

ed something on the blue trousers

that’ hung loosely over Reeves’
vothin shanks... “Where'd:..you - get .

“those: ‘burrs 2” ‘he intetrupted.

‘The. ‘man’s -hand es down’ ‘and
them. “Why, I...

got in. awhile: ago. Wife’s out: to:
the: movies,’
The -sheriff.switched back to

“the noté. Reeves claimed he: meant

only that he would get all “his
friends. to vote against ..candidates

Hill backed .in the next county

election. .
Brawley. hesitated. The more

’ sinister*threat that could also be

read into the note »-warranted

Reeves’ arrest. But there was Ber-

ger . ... Using the man’s phone,
‘No.

i~ to. swear on the
_ that Collins was the vicio™
‘ cutioner, .

4 ree rE ‘must As
- have: got’em cornin’ ’ cross-lots. Just »

ag oe

strangely vanished restaurant «nan:
And .... Anderson now. .vas ready
witne 's aoe
exe-

alibi on the way-back into Castes.
ton. He had driven several blocks
‘before he became aware that D’Io-
tio was smoking a cigar. He had
‘ been so engrossed in thought, even -
his sense of smell didn’t register.

It did so now .. keenly.
“Say, that’s a fine aroma,” said

’ Braw ey, half turning. “What kind

+.” He saw. slender fingers nerv-

ously ‘working off the band. D’To-...

rio stammeréd, “Why I don’t .

The curious feeling Brawley had
‘had when he started southward

‘after the raid on Collins’ home -

flooded back. But now, he real-
ized suddenly what it was he had
overlooked far back in the in-
vestigation. The fistful of Peter
Schuylers Hill bought at the lob-
by stand before setting out for

home .. . they weren’t on the
corpse .. . they weren’t in- his
car ... the fiendish killer had

stopped where his victim lay .. .

i
y
) wi

/ My

ih : i

“HE BUILT IT: TO GIVE HIS CELLA HOMEY ATMOSPHERE

2 ~ AND WE - HAVENT SEEN HIM SINCE!”

et een

x i ys Ae ae
Pe er ia 9


£4

Oe eed? 22 0 eae

Brawley didn’t take time, then,

to ponder.on the crazy paradox of .

the murderer grabbing cigars and

‘neglecting valuables. He jammed

_on his brakes, seized the cigar, and

snapped on the rear, overhead
light before D’Iorio could utter,
another word, Dropping the smoke
at his feet, he expertly frisked
the youth.

“What's the big idea?” yelled
D’lorio shrilly. ,

Brawley ignored him. Finding
no weapon, he picked up the cigar
and inspected the band, It was a
Peter Schuyler, “All right,” he

_ Said _steelily, “where did you get
it? Don’t lie. A fellow like you
-.-driving an old touring car doesn’t

buy Schuylers.” s

“A... a fellow gave it to me."

~ “One of the fellows, who’ hi-

jacked your car?”
“Yeah!”

“You'll have to do better than:

”

they gave you a cigar?

it had bee tossed out to him as”
the pair sped away. Brawley scoff-'

youhave been .all the way.
through,” he accused. “Why, I
don’t think you even own a Car.

I think this is some kind of a

trick to...” . ; :

“Here!” D’lorio jabbed a fegis-
tration card into the. sheriff's
hand. “That’ll. show you!”

It showed the sheriff something
far more important than the fact
that the youth owned a, car. The
card told him D’lorio lived only
a couple of blocks from the mur-
derer. When the young man wild-
ly ‘denied that he knew Collins,
Brawley yanked a set of: hand-
cuffs from his pocket. “That does
it,” he growled. “You're the one
who did the driving.”-

D’Iorio broke at the sight. of
the gleaming steel bracelets and

_the sheriffs charge. ‘

He said he knew Collins’ well.:
The surly young ex-convict lorded

- it eover him and several other  -
~ youths with threat of fists and

knives. : : -

“He ‘never made me do. anyr
thing wrong before, though,” D’-
Iorio claimed. “I was just driving
down to see the excitement, and
stopped at the Kanawha for a

beer. That was about an hour. -:

that, D’Iorio! You told.me.you .-
-‘can’t describe these fellows; yet
you got so friendly with them,

ed at the idea. “You're lying, and

sieeamls Neue: ihe, patie mt
ribs and telling me he’d

“Was he alone?’ :
low, but he. stayed back ‘in the
dark :there. Collins: said he’d fig-
ured. outa smart’ one. I’ was to
drive on down and ditch my car
in the woods, thei walk back, and
se o Well, like Didi?) sv taf

:‘‘Why didn’t you tell the troop-

ers where he -~was instead of obey-

ing him?’ demanded Brawley.
D’lorio’ shrank back against the

cushion. He cried, “He said hes

‘kill. me if I did. How could'I be
sure you'd catch him? Maybe you
won't! Maybe he'll still kill, me!”

-« “Not if ‘you'll tell -the truth,”
the sheriff grimly promised.

_ Heartened;,the youth explained
he was to have made ‘his' way to
Charleston and gotten a change
of. clothes: and. box_, of. food . for

Collins and his mysterious com- ~

panion, He was ordered to drive
‘back at midnight in a friend’s ‘car.

“He told me to start going slow
a mile above’ the hotel, and keep

The trembling youth claimed : blinking my lights. I'd stop when

I heard. him whistle a certain way.
Collins thought by then every-
one would be hunting way south
for him and it would be safe. for
-me:to- drive him and his pal part

way to a’ hideaway back in the

\ hills,” » ore
_.“He gave you the cigar?”

~ “Yeah. He.told me he found |

’em on the ground after-the guy’
fell. He laughed and ‘said, “That
was right’ kind of the fellow,
treatin’ me to smokes after I
bumped-him off.” :
Brawley consulted

It was 11_ o'clock.
D’Iorio’s taut, worried face. Had
-he ‘told the truth? The youth
flinched and asked, “What’s the
matter?”
“Oh, I was just wondering how
you could enjoy a cigar stolen
- from a murdered man,” lied Braw-
‘ley grimly. D’lorio’s cheeks flam-
ed and he protested, “I’d forgotten
‘all about it, I was so nervous
waiting out in_the car for you, 1
didn’t know what I was doing, I

his watch.

--* The shrewd sheriff replaced the

“handcuffs‘in.his pocket. The youth

?

said he had’ seen Collins’ tcéme +:
‘panion only vaguely, ‘but «might»
be able to identify him. ‘There. still *

“was time, and there was. a.chance
Brawley- whisked. his car”

ago. When’ I came out, Collins * around and sped hack to Reeves’

grabbed me’ on the dark porch,

-He. kept poking his ‘gun in my

on the door, br gh

rth

ill me if ©

I didn’t do, what he wanted.” taken the man into custody, th

Now There ‘vas thie other’ fele.-

He studied .

ake

TY hardly*realized I.was sinok--
~ing till you asked’ me the’ brand.”

“livid With rage. “Rat!” he shout
“residence, It- was dark: Pounding .
no response. |

‘i Berating mself for not havin

sheriff drove to a. restaurant for
hi§ first snack since noon. He

‘made D’lorio stay in the car. There

‘seemed to be no telling what kind

of long distance: “‘cat’s eyes” the ~

clever Collins possessed. After
ordering a hot..beef sandwich, he
phoned Brabban. Still no trace of
Berger or Cahill. Wary even of
party line listeners-in, he relayed
no hint of the startling break im
the case. | :
- Luck was with the
Troopers Ballengee and Seal drop-
ped in. Brawley enlisted their aid.
They ate quickly, then drove their
plainly marked cars to a garage.
The ‘proprietor readily, loaned’
them an old touring car, and in-
stalled their powerful spotlights |

vanite Y

At midnight, the old jalopy roll-
ed slowly south on -the highway
-above the Kanawha Valley Inn.
“Brawley, at the wheel, switched

the headlights from dim to bright
every few yards. He braked to'—

a stop as bright lights: loomed
up behind, and let the car race-
past. Abruptly a sharp whistle

sounded from the dark silence off ~

to the right of the road. ~
D’Iorio, huddled on the floor in

the rear, raised his head slightly |
and called out, “It’s‘nie ... Sam.” ~

There was no answer, but pres-
ently the stalkers heard the swish
of legs through brush, then. the

dig of shoes into the steep grassy .

embankment.

_ Brawley’s eyes, strained through
the darkness, and saw two dark
forms rise slowly up on the rim

of the bank. Swiftly he. clicked»

the spotlight buttons. Blinding
light smacked the eyes of the two
fugitives. They halted, rigid. Bal-
lengee cut loose with a warning
burst of machine gtn fire over-

their ‘heads. from the ‘rear seat. .

Seal shot up from his crouch be- |
tween the front seat and dash-
board’ and yelled, “Drop those

. ‘guns or we'll riddle you!” tie
©” "Pwo. revolvers thudded on: the
-ground from the right hands of | ~

.the-yoiing desperadoes.

“.. "You were right, sheriff!” said —

. Seal““They sure were ready.” —

The sandy-haired gne—Collins—

“spotted D’Iorio, and his face went

“Tl kill you!”

sheriff. ©

‘snarled, “You'd have had a good... ..
fight on: your hands if it hadn't»
_ been: for’ that machinegun.” He»...
ed.

“Don’t move,” warned Ballen- | ®

i Ss le a od

gee, lea
weapon
couldn’t
lets do:
they wh
they?”
Collin
Reeves,
: He was
Ra sluggi
F ~. imost-cle
~ neveg h:
At he
cockily
talked \
of hold
“He’s
stuff, as
- Collins,
‘a thirty
ternoon,
getaway
at Lee
over for
“You
ing the
Collin
looked :
ee judged
eee! said, “S
fe and gag
ee Soe ~ Braw
Meee. er offic
a the call
Shoe plicatio
them.
ee °Thursd:
AEN ee good cz
; a3 tersecti

=?

ye eae


GomnIZAuiey FREE ea WASIMIGER, whine, bang 42 Vic 6°"
a , 2 We Va. SP’ (Harrison) on 1-l-192);

Dear Watt:

Recieved your letter of Jan 20. Thanks alot for the W. Va.
matetial! Should you order the film on the Chambers case write
Colson Hall Archives, WV University, Morgantown WV. They have all
available wV newspapers on microfilm for anyone interested. The
State archives at Charleston also have such a collection, but I
um rot sure if Charlestcn loans theirs on inter library loan.

The list of WV executions was very helpful. The Read and Tross
listed were the correct ones. Now, I do not know what you have on
the ones on the list but can elaborate on a couple. Perhaps you
already know. The Harry Powers listed 3+18-32 was known as the
Bluebeard of Quiet Dell. Powers was a man with a habit of marrying
rich widows and then poisoning them, and, burying them in a dungeon
beneath his garage. At this time this ts all I have on him. The Sam
wuratore listed 2-15-24 was hanged as part of the same case as Phillip
Connizaro,Salamente, Ferri, etc. Enclosed find copies of clippings
cn that incident. Also, am enclosing a copy of clipping on Wiifred
Devis!t execution. My grandmother knew him well. She says that he
was an honest, christian, hard working young man who was essentially
railroaded by the law.and should never have nanged. The newspapers and
court case file tell us otherwise. The real truth may never be known.

Also, I-fcund a couple that you may want, although I cannot
confirm at this time. The Nov 27, 1976 'Wwest Virginia Hillbilly'
has two: Milly, a slave girl, hanged in Monongalia Co for murder of
her masters son, She was sentenced to death and hanged Sep 1, 1796.
Another: Slave Joshua, hanged on Falling Run below Morgantown Aug
, for assault cn white woman. The Milly, above was a slave cf
be. snd Joshua was a slave of James Collins.
afreind cf mine has done several years on a projeet similar to
ycurs, documenting every desth for ary reason in this county before
1904, He tells me that he has found no evidence of execution here . -
legal or otherwise prior to that time, except the lynchings.

Will close for now. Thanks again. If you have any questions,
Tet me know. .


SHSEFSESCHEFESEEPHVESOS

an 1S

S,

SHHPSSESHEPHSSHHEHHETVE

ain in Street

ISUAL TIES

YTAL OF 114

el
lsked

Deaths Number Thirty-'
four; Authorities Com-
mandeer Ulster Hall.

ee

; | BEJ.FAST, Feb 16 The author.
i, tles Thursday cammanderre4 Llater
PORE See commodiua siructure oo
Hedford street ordinarily used tor}

eane erts ‘AG adseniblages, for the use
of the troops saw engaged in con-
dating the disorders here Up to 10
o¢tock Thursday morning the caeu-
paltes had reached a total of 114,

MINE CASE

with § DK -

7 Declares ee the deaths numbering thirty
An atempt was made Thursday
ished Dy- | forenson to burn the disused work,
rowd. house at Strabane north Tyrone,
H : Pwhich the q.litary had signified its
at finteni€fton af occupying (bis week A
“PB Va, Feb lpelice patrol noticed AMames coming
mony beran' from the atructure and the entire
fond (rial of! furce was moblilzed aod checked the
fs charge of, tre Esamtination showed that
eelty building. petrol had been atreen over the;
eGruary, 1ydi jatairs and bedding The dtatrict hos-

on the stand: Plal adjoins (he work house
dainage dote, The fre arte act $s now
was tleed toi /n northern Irelaod and the sxuthor-

f the Willis) ites announce that tf will be stricuy
gpd which wag: adhered to The possession or sale
> P. A. Grady rot firemarms without police certifi-
SH tile Branca | cates ia punishable by two yours’
fd the dumage (hard labor ~The period of xrede for
fhe machinery (Re surrender of arms expires Sat-
to about; @rdas in Belfast. and February 28

'elaewherr.

TUT
ELAN WILL
it

in force

Yoself already

tence in the
tr dynamitiog,
shed dynamite
frowd of mena

Tlaville who

be sub-eta-

wis in the,
mnere, tlubert,
eas tn the ticat)

mished ais-;
7° Romine, he
Fehe dynamitu
pd while Jonny -
own to the
‘command of!
Nained on the;
fre to prevent:

Annual Convention of Gael-

oGUSSED:

es ~ Am”
of

ANOTHER DIES IN-
‘UNDERWORLD WAR ~

a Frank Napolitano, Kelly

EVACUATION 0 “ah
| TRELANT il MURDERERS ESCAPE
ONT

Flee in Automobile after
Riddling Barber’s Body

with Bullets.

bl

No arrests

: eye . . fate hour Thursday afternoon tn
Collins Admits He is Not larksburg'’s boldest murder anee.
Dissatisfied with Results : Although they werqg running down

every rumor and report. officers ad-
'inttted they did pol nave a eyo
;tungidle clue that mught teed to

| apprehension of the three bandits
iwho sho’ and killed Frank Soeeeane
{aged 27. Itallan Barber, of Kelly Hill,
fus he waiked along the street near
the Capparrotta apartiventa on Me-
chante. street. -{n broad daylight
i Thursday Morning.

: Vanish in Auto.

{ The offcerg :ollowed the trail at
‘the bandits down or south on Wator

of Conferences.

LONDON, Feb. 14. — Prewtle-
tion chal a coup dielac th ire
land, which would realt ta
the setting up of a soviet repa
Uc, would ruin Ireland's cattac
for ms semtury, wea made by
Winston Churehtll, secretary for
the colonies, in mouving tn the
House of Commons  tmiay the
aewond reading of the Irish free

|

afreet fo the swinging bridge, crose-
ak ae ales ast Nevotes, [ite Elk creek to Monticello avenue,
in the opinion of aie British whera the three gunmen got tnto a

bi black curtained Butck automo-

. he bays: been driven by an
merican driv “There the i Eig ‘
; seemed to have vanished as complete-
‘ly as tf they were awallowed up Dy an
ccean wave.

.

government, he said.

sone pean i
LONDON, Fed. 16 ->Michael Cal-
pine a return to Dublin after only
twelve hours in London and his ad- : ‘i
i Mission that he was not dissatisned ; Bele tests ial cid Be
a ee eee seer ee were working on telephone lines on
i % 2Q Tt ul te H i e
: eae eae ee ee? avenue sav they saw three
Putfon oof ei Laan wil} ne. cumbd {ato the autowmodtie there
sumed forthwith, aid coptinue unin-: pad (a cio at the lineaen bas
Slerrapteddy oo 5 ae :
i ‘This will relteve the situation of ate dq: ae bu te ee es a
Che of tls most serious features. Not tecibnire. he chek whAG Ae
cMctal explanation of the assurances , wis at the wheel of the pels. appar
> } par
Be ae oe Pee ae its the driver Walle jor tite juae
No Troops Moved. ae on, He drove away rather ragp.dly
{ but no one got the t{cenee number o
lithe south since Monday except 400 |

{

be fe.)

No troops haye been moved from the car eo far as the authorities can

cavalrymen who emdarked at Dub- learn : :
jin for Liverpool Wednesday night. -. eee fe fn Vain.
The other troops which srrived tno { -faraing thao big black auto-

had been made at so


~

Philip Connizarro ("Big Nose Philip")

NAME Richard Ferri ("Dapper Dick") PLACE — CITY OR COUNTY DOE & MEANS

Nicholas Salamante (The Sphinx Man"). Va, SP (Harrison County) h l--192);
DOB OR AGE RACE OCCUPATION RESIDENCE GEN

26-26-33 white
RECORD
CRIME DATE, 16-1923 OTHER

Murder
VICTIM (a Kelly Hill barber) AGE RACE METHOD

FRank Naples white

MOTIVE

"Black Hand" plot
SYNOPSIS

On night before executions, all showed signs of nervousness, All slept some, but the m

obt ner-=

played the greatest nerve of all but prior to execution was wreck of former self, Connizarro

; st_of trio, In order that all three might be hanged at one time, and addibhdnal
trap added to scaffold which theretofore only had provisions for two men to hang. For last
meal they (all Catholics and refrained from other meats) ordered baked fish, cream of corn soup,
mashed potatoes, celery, lettuck, olives, pickles, bread, butter, coffee, cake, pie, ice cream
and cigaretts. CLARKSBURG DAILY TELEGRAPH, 1-192, Mrs. Le first woman to witness in WVA

Mrs. M, E. Layton, sister of Governor of West Virginia, witnessed the-execution,_Naptes-kitted
on Clarksburg street at a period when "Mafia" warfare was at its heigth, Trap sprung promptly

sid-< ; ZaAFYLO o-had earlie x. AXXEXS kK bu oe head
against cell bars was too weak to stand and was bound securely to a board, Connizarro was also

scolisness, Ferri pronounced dead after 10 minutes, 30 seconds; Connizarro after 1l minutes,
20 seconds: Salamante after 13 minutes, and , unusual in hanging, his entire body moved 8 minut ed

after trap fell, None of their necks were broken, They made no confessions as far as Was KMOWMT,
Cinnizarro and Salamahte both buried in prison cemetery. Ferri's body claimed by woman who he
had once befriended while she was ill in hospital. CLARKSBUE : Ts

Note: While I have received the TELFGRAM once for date of murder, did not read. Am ordering in-
Stead Mrs, Davis" HISTORY OF HARRISON COUNTY throuph ILL and should get what i want tt

TRIAL

APPEALS

LAST WORDS

EXECUTION

SOURCE

FRANK NEWTON OFFICE BSUPPLY-DOTHAN


NAME

Samuel Muratore

PLACE — CITY OR COUNTY

We Va, SP (Harrison)

DOE & MEANS

h, 215-192),

OOB OR AGE RACE OCCUPATION

Whit e

RESIDENCE

Clarksburg

GEN

RECORD

CRIME

DATE
Murder 1-20-1922

OTHER

VICTIM

James Papara, alias "Jimmy
Little" Italian merchant

AGE RACE METHOD

Yh

MOTIVE

SYNOPSIS

Papera, Clarksburg Italian merchant, killed at Kelly Hill,

U + W

Feb, 15, 192h.
HM 2

One hour before Ferri had been

aiming Muratore annocent and he was granted a stay of

VaAULY

s led to HAAKEK XX XUA
Original date of execution had been

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execution for investigation, Governor declined further intervention when investigation showed

gallows

Jan .11 when granted respite,

Until an hour before death, hoped for commutation, When time

for death grew near and it became obvious he would not receive commutation, he appeared resigned,

Maintained innocence until last,

TETPGRAPH, XHKX Feb, 16, 192)

Body taken in charge by Catholic priest. CLARKSBURB DAILY

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TRIAL

APPEALS

LAST WORDS

EXECUTION

SOURCE

FRANK NEWTON OFFICE SUPPLY-DOTHAN

NO APPBAL

CRABTREE, Walter, 35-yeareold white man, hanged at West Virginia State Prison (Hampghire Co,)
on 59 Hd 306

"Romney, We Vaey Dec, 18, 1929~ Seeking vengeance, authorities believe, upon those who had
sent him to jail, an intoxicated man set forth with a shotgun and a 'death list' here today,
killing three men and wounding two women and a child, Walter Crabtree 35-yearseold, the
killer, who was released from the county jail two weeks ago after serving a sentence for
possessing liquor, was held tonight in a cell at Keyser, in an adjoining county, authorities
fearing the possiblity of violence, Sheriff J. B, Saville, who said Crabtree was
intoxicated, expressed doubt the man was czazed by liquor, He believed Crabtree sought out
his victims in revenge for his incarceration,

"On Crabtree's person, the sheriff said, a list of names, including those of two of the men
slain, was found, This was regarded by Saville as a 'death list' which Crabtree had inten-
ded to complete by adding the sheriff and former Sheriff Joseph Ruckman to his victims, The
slayer first visited the home of Asa Wolford, 28, and killed him as he sat at the bedside
of his sick father, The killer then shot Mrs, Grace Wolford, mother of the mam glain and
Mrs, Carrie Wright, a visitor, The women escaped serious injury, County authorities could
not explain why Wolford was shot, They believed, however, the slayer might have mistaken
him for another man as his name was not on the 'death list,!

"From the Wolford place, Crabtree went to the home of Mrs, Blaine Hott, where he shot and
slightly wounded Mildred Hott, 11, The reason for Crabtree's attack on this home likewise
was a mystery. Crabtree next went to the home of Justice of the Peace H,.C,.Inskeep, 50-
Yearseold, the sheriff said. Inskeep, who had figured in Crabtree's arrests, was called to
his door and killed. The last victim was Ben E, Miller, county jailer who was summoned from
his headquarters at the jail and slain, Crabtree returned to his home after shooting
Miller, the sheriff said, but set out again, He went to the home of Dr, J. S. Easton,

where the physician was treating Mrs, Wright. When a knock at the door was unanswered,
Crabtreefired through the door, investigators said. Crabtree was arrested about an hour
later at his home by the sheriff and a state policeman, He offered no resistance," TIMB-
PICAYUNE, New Orleans, La,, Dec, 19, 1929 (1-6),


FHS ME AD en Ce et Yer RP le»

100 48 SOUTHEASTERN REPORTER.

sight. No warrant was necessary. Nor
would the fact that he was illegally arrested
justify the killing of the officer. The instruc-
tion was only calculated to mislead the jury,
and hence it was properly refused.

Third, for refusing the following instruc-
tion, to wit: “The court further instructs
the jury that if they believe from the evi-
dence that at the time the fatal shot was
fired the accused and the deceased were en-
gaged in a’ struggle, and the accused saw the
deceased drawing from his pocket something
bright which he believed to be a revolver,
with which the deceased was about to shoot
lim, then in that case the accused would be
excusable for firing at the deceased, if he had
reason to believe and did believe that it was
necessary to do so to preserve his own safe-
ty.” The instruction is bad because it fails
to show the prisoner was without fault.
The prisoner was resisting arrest, and was
acting in an unlawful manner. The cireum-
stances did not justify the accused in believ-
ing that the officer was going to do him any
bodily harm, but they show plainly that the
officer was doing’ nothing more than his duty
required of him. If there was a struggle go-
ing on, it was entirely occasioned by the un-
lawful conduct of the accused. If in a rea-
sonable state of mind, he could not have pos-
sibly drawn the conclusion that the officer
was about to shoot him, and that it was nec-
essary to shoot the officer to preserve his own
life, which is reilly,the true import of the
instruction asked. While we must view the
matter from the standpoint of the accused, it
must be done in a reasonable manner. There
is not a particle of evidence to justify the
accused in believing that the officer was going
to shoot him other than that of the accused
himself. Of course, he might be so intoxi-
cated as to be in an unreasonable state of
mind, and imagine that the officer was about
to execute him then and there. This instruc-
tion, however, does not present the question
of intoxication, but it is framed on the theory
that the accused was at the time in a rea-
sonable state of mind. Being so, there was
nothing in the conduct of the officer to lead
liim to believe that he was in danger of any
more force from the officer than that made
necessary by his own unlawful conduct. The
accused testifies that, “When he arrested me
and started to the jail with me, when he got
up to the jail I said I wouldn't go, and he
said, ‘I will show you if you don't go,’ and
he reached in his hand and pulled-out some-
thing bright that I supposed to be a gun. I
supposed he was going to shoot me.” This is
a supposition that the evidence does not jus-
tify a reasonable mind in entertaining from
the acts and conduct of the deceased. As it
is said, “Apprehension of danger, to justify
a homicide, ought to be based not alone on
surmises, but there ought to be coupled there-
with some act on the part of the party from
whom danger was apprehended evidencing
an immediate intention to carry into execu-

(W. Va.

tion his threats or designs.” State v. Cain,
cited. There were no threats or designs on
the part of the officer except that he would
compel the accused to “go to the lockup,”
and that he reached in his pocket to take
out something bright, being a pair of nippers
to compel the accused to submit to arrest.
There is nothing in the evidence, admitting
his testimony to be true, justifying the al-
leged supposition of the accused that the of-
ficer was going to shoot, therefore he had no
reasonable grounds to believe the officer was
going to treat him unlawfully. Counsel rec-
ognize this fact, but rely on the alleged in-
toxication of the accused as blinding his men-
tal faculties to such an extent that he had
unreasonable or imaginative grounds for his
belief. As heretofore shown, this is not in-
cluded in the instruction, nor does it justify
it. It is founded on a reasonable, and not an
unreasonable, belief, and therefore the court
committed no error in refusing it.

Fourth, for refusing to set aside the ver-
dict. The only pretense of justification for a
willful and deliberate killing of an officer in
the discharge of his duty is the alleged in-
toxication of the accused. That he was in-
toxicated to some extent, there can be no
reasonable doubt. In Robinson’s Case, 20
W. Va. 713, 43 Am. Rep. 799, it is held that
“a person who is intoxicated may yet be
capable of deliberation and premeditation;
and if the jury believe from all the evidence
in the case that the prisoner willfully,” ma-
liciously, deliberately, and premeditatedly kill-
ed the deceased, they should find him guil-
ty of murder in the first degree, although he
was intoxicated at the time of the killing.”
This is the conclusion the jury appears to
have arrived at in this case, and the court is
powerless to disturb their verdict, for it is
impossible to say that it is plainly contrary
to the decided preponderance or weight of the
evidence. Such intoxication may be a matter
for executive clemency, but it is not for ju-
dicial consideration. The accused is a young
man 21 years old, and his conduct on this
occasion evinces unusual depravity for one of
his age, either through neglect or heritage.
The law of the land makes no excuse for
either, but punishes every offense alike,
whether occasioned by inherited or acquired
depravity not amounting to legal insanity.
Such law may be unjust, and society, which
permits conditions to exist that pander to
men's vices and make them wicked, depray-
ed, and criminal, may not be wholly free
from blame, yet this court, the tribunal there-
of and created thereby, can do nothing but
enforee the law as it exists, and leave the
final adjustment of such matters to that Su-
preme Tribunal whose unerring judgments,
free from human frailties, rest upon truth
primordial and wisdom infallible.

The judgment is aftirmed.

BRANNON, J. (concurring. I do not think
that the instruction on self-defense is good, or

W. Va.)

could be ntade good under the conceded facts.
It does not put to the jury as an element the
question whether Davis was without fault in
bringing the necessity upon himself. One
who brings upon himself the necessity of
killing is denied the plea of self-defense. Un-
der this instruction he might have been held
guiltless of any degree of offense. Killing in
resistance of a lawful arrest cannot be justi-
liable upon the ground of self-defense. The
instruction does not in other respects fill the
standard of self-defense. If even the evi-
dence would justify a proper instruction on
self-defense, there is no error, because this in-
struction is bad. Judge POFFENBARGER
concurs in this note.

LOWTHER OIL CO. vy. GUFFEY et al.
(Supreme Court of Appeals of West Virginia.
Jan, 14, 1903.)

OIL LEASE—CONSTRUCTION—DURATION—
FORFEITURE.

1. Where a grant of oil and gas, and oil and
kas privileges, in consideration of $1, without
limitation as to time. contains a forfeiture
clause in these words: “In case no well is
completed within two years from this date,
then this grant shall immediately become null
and void as to both parties: provided, that sec-
ond party may prevent such forfeiture from
year to year by paying to the first annually in
advance eighteen and 75/;99 dollars, at her
residence, until such well is completed,’—such
lease is thereby converted into a lease from
year to year, at the option of the lessee, until
a well is completed. It would then continue
So long as oil or gas is produced in paying
quantities.

(Syllabus by the Court.)

Appeal from circuit court, Calhoun county;
Warren Miller, Judge.

Bill by the Lowther Oil Company against
James M, Guffey and others. Decree for
plaintiff, and defendants appeal. Reversed.

Edward A, Brannon and R, L. Bland, for
appellants. John M. Hamilton and T. P. Ja-
cobs, for appellee.

DENT, P. James M. Guffey appeals from
a decree of the circuit court of Calhoun coun-
ty canceling a certain oil and gas lease ex-
ecuted to him by Ella Youk and husband in
a certain chancery suit wherein appellant
Was defendant and the Lowther Oil Company
Was plaintiff; and the lease filed with the said
Dill from Ela and A. T. Yoak to James
M. Guffey, and referred to as “Exhibit B,” is
in the words and figures following, to wit:

“In consideration of the sum of one dollar,
the receipt of which is hereby acknowledged;
Mla Yoak and Agnew Yoak. of .\thens coun-
ty, state of Ohio, first party, hereby grant
unto James M. Guffey, of Pittsburg. Penn-
§Yivania, second party, their heirs and as-
signs, all the oil and gas in and under the
following described premises, together with
the right of ingress and egress at al’ times
for the purp se of dilling and opcrating for

LOWTIIER OIL CO. y. GUFFEY. 101

oii, gas, or water, and to conduct all opera-
tions and lay all pipes necessary for the pro-
duction and transportation of oil, gas, or wa-
ter taken from said premises, reserving, how-
ever, to first party the equal one-eighth (1%)
part of all oil produced and saved from said
premises, to be delivered in the pipe line to
the credit of the first party free of charge:
All that certain lot of land situate in the dis-
trict of Center, county of Calhoun, in the
state of West Virginia, bounded and describ-
ed as follows, to wit: North by lands of
Taylor heirs, east by lands of Holbert, west
by lands of James Metz. south by lands of
Wilson Richards; containing seventy-five
acres, more or less. To have and to hold
the above premises unto the parties of the
second part, their heirs and assigns, on the
following conditions: If gas only is found,
second party agrees to pay two hundred dol-
lars each year in advance for the product of
each well while the same is being used off
the premises. Whenever first party shall re-
quest it, second party shall bury all oil and
gas lines, and pay all damage done to grow-
ing crops by reason of burying and remoying
said pipe lines. No well shall be drilled near-
er than 500 feet to the house or barn on said
premises. In case no well is completed with-
in two years from this date, then this grant
shall immediately become null and void as
to both parties: provided, that second party
may prevent such forfeiture from year to
year by paying to the first party annually
in advance eighteen and 75/;99 dollars, at her
residence, until such well is completed. The
second party shall have the right to use suf-
ficient gas, oil, or water to run all necessary
machinery for operating said well, and also
the right to remove all their property at any
time. It is understood between the parties
to this agreement that all conditions between
the parties hereunto shall extend to their
heirs, executors, and assigns. In witness
whereof the parties hereto have hereunto set
their hands and seals the 13th day of April,
A.D. 1895. Ella Yoak. [Seal] A. T. Yoak.
[Seal.] James M. Guffey. [Seal.]

“Signed, sealed, and delivered in the pres-
ence of H. CG. Sherard, J. F. Kimpton.”

Appellant did not drill a well on the land,
but paid up the commutation money until
the 15th day of April, 1901. In March, 1901,
he took possession, and began drilling, and
tendered his lessors the commutation money
of $18.75, and a further sum, increasing the
aggregate to $75, if they would permit him to
continue operations without molestation.
They having executed a second lease to the
Lowther Oil Company, the plaintiff, on the
Dd day of October, 1900, subject to appel-
lants lease, declined appellant's — tender,
Therenpon the plaintiff instituted this suit,
and succeeded in having appellant's lease
held void, and all operations thereunder per-
petually enjoined. This whole case therefore
depends on the validity of appellant's Tease.
An examination of it shows that it is a lease

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COX, Ebenezer W., white, hanved Charleston West , Vas, August a7, 1830,

"EXECUTION. = (RROM THE VIRGINIA FREE PRESS). = The execution of Hbenezer W,

Cox, for the murder of Col, Dunn took place yesterday at precisely half past 1
o'clock, Not less than 5,000 persons were present = many of them from a con=
siderable distance = and it is but justice to say, that we have never seen so
large an assemblage behave with more propriety, - During the solem preparation
at the scaffold, a death like stillness prevailed, and a feeling of deep sympa-
thy seemed to throb in every bosom, = He met his fate with great firmness, and
himself gave the signal to let the drop fall which launched his soul into the
world of spirits, He admonished from the platform, in an audible and unfal-
tering voice, the young men present acainst an indulgence in the soul destroying
habits of gambling and dissipation, Though he gave evident tokens of internal
agony, and prayed fervently to the Throne of Mercy, yet he maintained his self-
possession to the end, without change of color or features; and surveyed with
scrutinizing eye the vast crowd which had gathered to witness his ignominious
exit; looking in vain, as he said, for his 'pretended friends,' by whose evil
suggestions he had been lured to ruin. He died without a struggle - the only
indications of suffering which he exhibited, were, during the first three
minutes, five or six slightly convulsive shrugs of his shoulders, He was
suspended about half an hour, when his body was conveyed about a mile out of town,
and given over to his kelatives for interment in Loudon, He was attended in his
last moments by the Rev, Mr, Gildea and the Rev, Mr. Grace, of the Catholic
Church - the former of whom had been visiting him for the last five months with
pious (?). He has left a minute confession, in his own hand-writing, of the cir~
cumstances connected with the murder, in which he perseveres in imlicating those
persons whom he had formerly accused as the movers and accessories of the foul
deed," REGISTER AND NORTH CAROLINA GAZETTE, Raleigi, NC, September 9, 1830

(2-5&6)

ae Loa danas oh ee ale es ee ek

98 43 SOUTHEASTERN REPORTER. (W. Va.

Statute. It left the jury to determine a mere
question of law, with the necessary intima-
tion that there was evidence tending to prove
that there existed a contract or understand-
ing between Vincent Stutler, deceased, as to
the possession of the land, when there is not
the slightest competent evidence as to any
such contract or understanding. Had there
been such, the defendants would have been
parties to it, for it would have been a sur-
render of their possession as recited in the
deed. This possession neither they nor Vin-
cent Stutler have been shown ever to have
surrendered. It looks hard to turn a plaintiff
in such a case to his action of ejectment,
which will only afford him the same relief he
could have here if it were not for the statute;
but so the law is written.

The judgment is reversed, the verdict of
the jury is set aside, a new trial awarded,
and the case is remanded.

ARMENTROUT v. SMITH et al.

(Supreme Court of Appeals of West Virginia.
Jan. 14, 1903.)
ACTION AGAINST JOINT OBLIGORS—SEPARATE
JUDGMENTS—RES JUDICATA.

1. Section 52, c. 125, Code, so far changes
the common law as to permit a plaintiff to
take several judgments against. several joint
obligors, as they are served with process in
the same suit. It does not authorize more than
one suit: against all or any of the obligors,
whether served with process in the first suit
or not. As to the bringing of more than one
suit on the same joint cause of action, the
common-law rule remains unchanged. ‘

2.A judgment against two joint obligors
served with process is no bar to a subsequent
judgment against a third obligor in the same
suit who was not served with process or be-
fore the court at the time the first judgment
was rendered.

(Syllabus by the Court.)

Error to circuit court, Grant county; R.
W. Dailey, Jr., Judge.

Action by Aaron Armentrout against S.
H. Smith and others. From a judgment of
dismissal, plaintiff brings error. Aflirmed.

I. M. Reynolds and L. J. Forman, for
plaintiff in error. J. N. McMullen, for de-
fendants in error.

DENT, P. Aaron Armentrout complains
of a judgment of the circuit court of Grant
county dismissing his action against S. H.
Smith & Bro. and John G. Harmon on the
plea of res adjudicata. The facts are as

- follows: At February rules, 1897, plaintiff

instituted an action of assumpsit against the
defendants on two joint promissory notes.
No service of summons was had on defend-
ant Harmon, and at the March term of court
judgment was taken by default against S.
H. Smith & Bro. for the amount due on the
note, $338.20. The mistake having passed
undiscovered until after the term had ended
at the October term of court, 1898, a mo-
tion was made by the plaintiff, after due

notice, to set aside the judgment, which mo-
tion was overruled. No effort was made to
sue out a new summons in the same suit
against the defendant Harmon. At the Feb-
ruary rules, 1899, a new action was instituted
by the plaintiff on the same two notes, total-
ly disregarding the former action and judg-
ment. The defendant thereupon appeared
and pleaded the former judgment in bar.

The sole question now presented is as to
whether the judgment against the two joint
promisors in the first is a bar to any judg-
ment that might be rendered in the second
suit. At common law this is unquestionably
true. In 2 Tuck. Comm. 212, it is said:
“There is, however, this objection, in the
ease of a joint contract, to the nonjoinder
of one or more of the several parties liable:
that, if judgment be obtained against one or
more of the several parties liable, that if
judgment be obtained against one in a sep-
arate action against him on such contract,
the plaintiff cannot afterwards proceed
against the parties omitted, and consequent-
ly loses their security.” 15 Am. & Eng.
Ene. Law, 342, 344; Freem. Judgm. § 231;
20 Am. & Eng. Enc. Law (2d Ed.) 599.
Plaintiff insists that this rule of the common
law is abrogated by section 52, ¢c. 125, Code.
in that it authorizes a plaintiff to proceed
to separate judgments against several de-
fendants, as they are served with process,
and that a joint judgment against them is_no
longer necessary, unless served with process,
and thereby several actions may be brought
against them severally on the same joint
obligation. Judge Edmiston, in construing
this section in Snyder v. Snyder, 9 W. Va.
420, says, “Under this statute, there may be
had as many several judgments on a joint
obligation as there are parties to the ob-
ligation, dependent wholly upon the service
of process.”” That is to say that the plaintiff,
notwithstanding the judgment taken against
S. H. Smith & Bro., bad the right in the
same suit to sue out summons against J. G.
Harmon, and, when the process was returned
executed, could take a separate judgment
against him, without regard to the judgment
already taken against the other joint obligors.
The statute, being in derogation of the com-
mon law, must be construed strictly, and
its meaning cannot be so extended as to
authorize separate actions on a joint con-
tract against each of the obligors. To hold
this would be to entirely destroy the dis-
tinction between joint and several contracts,
and make all contracts several. The mo-
tion to set aside the judgment in the first
action, which was overruled, has nothing to
do with the question in controversy, as, un-
der the statute, that judgment, though not
set aside, would not be a bar in the same
suit to new process, and a separate judgment
against-a defendant not served, for the stat-
ute expressly authorizes this course, Be-
cause, however, tlie statute authorizes a new
summons and a separate judgment in the

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W. Va.) STATE y. DAVIS. 99

same suit, it cannot be held to authorize a
hew suit on the same cause of action, with-
out regard to the first. Such looseness of
pleading could not possibly be tolerated.
Even on a several contract, 1s many separate
suits cannot be brought against all the ob-
ligors as there are obligors, but one separate
suit may be brought against each or any
number of the obligors. No one of them
can be sued twice. In the present case a
second separate suit is brought against all
the obligors, although judgment has already
been obtained against two of them. This
judgment at common law was a bar to any
further proceedings against any of the obli-
gors on the same cause of action. The bar
has not been changed by the statute, except
as against further process and judgment in
the same action as to obligors not before
summoned. Beazley’s Adm’'r v. Sims’ Adm'r,
81 Va. 644. This case is exactly in point,
and, since it was decided, the Virginia legis-
lature, to obviate the effects thereof, has add-
ed to the section these words: “Such dis-
continuance of the action as to any defendant
shali not operate as a bar of any subsequent
action which may be brought against him for
the same cause.” This clause has not been
added to the section of the statute under
consideration by the legislature of this state.
Whether it is wisdom to do so, future legis-
lators must determine. As it stands now, it
does not authorize the present suit. Hence
the circuit court conimitted no error in dis-
missing it.
The judgment fs affirmed.

(52 W. Va. 224)
STATE v. DAVIS.

(Supreme Court of Appenls of West Virginta.
Jan, 14, 1903.)

HOMICIDE—INTOXICATION—INSTRUCTIONS
—SELF-DEFENSE.

1. A person guilty of homicide may reduce
his crime from murder in the first degree to mur-
der in the second by showing that he was so
intoxicated at the time the offense was com-
mitted as to render him incapable of doing a
wiltful, deliberate. and premeditated act, and
that he did not voluntarily become intoxicated
for the purpose of committing the offense. All
this may be shown by his owu and the state's
evidence, and the facts and circumstances sur-
rounding the case.

2.It is not error to refuse instructions not
justified by the evidence.

3. Where there is no evidence tending to show
that the acensed had reasonable grounds to be-
lieve that the deceased intended to commit
murder or felony, or to do the accused great
odily harm, it is not error for the court to re
fuse to instruct the jury that “the accused
would be excusable for firing at the deceased if

e had reason to believe and did believe that it
Was necessary to do so to preserve his own
safety.”

(Syllabus by the Court.)

Error to circuit court, Randolph county;
John Henry Hall, Judge.

Wilford Davis was convicted of murder In
the first degree, and brings error. Affirmed.

C. H. Scott, for plaintiff in error. The At-
torney General, for the State.

DENT, P. Wilford Davis, convicted of
murder in the first degree by the circuit court
of Randolph county for killing the chief of
police of the town of Elkins, assigns the fol-
lowing errors why the judgment of the cir-
cuit court should be reversed:

Iirst, because the following instruction was
given on behalf of the state: ‘The court fur-
ther instructs the jury that a man is pre
sumed to intend what he does. or which is
the immediate or necessary consequence of
his act; and if the prisoner, with a deadly
weapon in his possession, without any, or
upon very slight, provocation, gives to an-
other a mortal wound, the prisoner is prima
facie guilty of willful, deliberate, and pre-
meditated killing, and the necessity rests
upoo him of showing extenuating circumstan-
ces, and unless he proves such extenuating
circumstances, or the circumstances appear
from the case made by the state, he is guilty
of murder in the first degree.” The only ob-
jection to this instruction is that it does not
take into consideration the alleged drunken
condition of the accused at the time the of-
fense was coinmitted. ‘The claim {s advan-
ced that it was the duty of the state to show
that the accused was “of sound mind, mem-
ory, and discretion.” The burden of show-
ing want of “sound mind, memory, and dis-
cretion,” as an excuse for homicide to the
satisfaction of the jury, is on the accused,
which he may do by all the evidence and the
facts and circumstances surrounding the
case. State v. Jones, 20 W. Va. 764: State v.
Robinson, Id. 713, 43 Am. Rep. 799; State
vy. Cain, Id. 679. This instruction places the
burden where it belongs. Intoxication {gs in-
cluded In the words “extenuating elreum-
stances.” It properly propounds the law as
applicable to the case, and it was not error
to give it.

Second, for refusing the following instruc-
tion, to wit: “The court instructs the jury
that although they may believe from the
evidence that the accused had been guilty of
an infraction of the law of the town of EI-
kins by firing a gun on the highway, and
although they may further believe that the
deceased was chief of police of said town,
still the accused could not have been legally
arrested and placed in jail for such an of-
fense unless the jury still further believe
from the evidence that such offense had been
committed in the presence of said officer, or
unless said officer had a warrant of arrest,
properly issued upon complaint, commanding
such arrest to be made.” This instruction
does not fit the case. According to the de
fense, the accused was publicly intoxicated.
and he was carrying a revolver contrary to
law, as shown by the fact that he used it to
shoot the officer. Therefore the officer had g
right to arrest him without a warrant. For
two reasons he was subject to arrest on

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124 Historica Notes ON FAYETTE County, W. Va.

Turner’s body as he hung there between heaven and earth.
Sol Walker, Turner’s victim, was a white man.

Wash Adkins Murders Isaac Radford

Between six and seven o’clock on the evening of November
11, 1893, Wash Adkins, William A. Burwell, and Charles Bays
went to the home of Isaac Radford, a butcher, at Deepwater.
The three men wore masks and were bent on robbing Radford.
Adkins shot the butcher with a .32 calibre, Smith and Wesson
pistol, killing him. After killing Radford the three assailants
fled but were captured after some days. When Burwell was
brought to trial, Milton C. Bibb of Oak Hill was foreman of
the jury which tried him. Life in the penitentiary was ac-
corded Burwell. At that time C. W. Dillon was the Prosecuting
Attorney. Charles Bays, an illiterate man, likewise was given
life at Moundsville. Wash Adkins was found guilty and sen-
tenced to death. Honorable H. W. Brazie was the presiding
Judge who sentenced the three men. The attorney who de-
fended the trio was L. G. Gaines. The trial of Adkins opened
on January 19, 1894 and he was sentenced on January 22, to
die on the gallows. To avoid possible death at the hands of a
mob, Adkins and Bays had been confined in the Kanawha
County Jail since November 20, 1893. After the sentencing of
Adkins a writ of error was granted the condemned man. He
was accorded a new trial but a new jury returned another
death verdict. Adkins was hanged on Friday, July 20, 1894 at

Fayetteville before a crowd estimated at three thousand per-
sons.

Sheriff Hinman served as the executioner and was very
nervous. Noting the sheriff’s trembling hands, Milton Koontz
grabbed the sharp hatchet from the Sheriff and cut the rope
which dropped the trap from beneath the feet of the con-
demned Adkins. The rope securing the trap was tightly
stretched over a beam. To drop the trap the rope had to be
severed with a blow of the hatchet.

Sam Short sawed and supplied the lumber to build the
scaffold on which Adkins and Jim Nichols were hung. The
scaffold was a twelve foot square frame affair. The platform
atop the scaffold was sixteen feet square. The drop was
arranged to be five feet. It was his knowledge of how to build

CATALOGUE OF FAYETTE COUNTY CAPITAL CRIMES 125

EXECUTION OF WASH ADKINS
—From photograph in Shirley Donnelly Library, Oak Hill, W. Va.

Standing on the forefront of the scaffold that was shortly to claim his
life, Wash Adkins is seen addressing the crowd of some 3,000 persons
who had come to see him put to death at Fayetteville, W. Va., on Friday,
July 20, 1894. After the condemned man had finished what he had to
say he calmly stepped on to the death trap where the Sheriff placed
the hangman’s noose about its victim’s neck, taking care to see that the
lethal knot was adjusted at the butt of the man’s left ear. Quickly the
trap was sprung and in a few minutes the murderer of Isaac Radford
was dead.

a scaffold that led the State of West Virginia to employ Koontz
to go to Moundsville and there erect the gallows which served
to execute condemned felons until the stated changed its
method of execution from hanging to that of electrocution.
The day Wash Adkins was hanged he made a touching address
to the gaping crowd just before he swung into eternity.

What Adkins said is as follows: “I don’t know what to say,
but suppose you all come here for a warning to see me die.
This ought to be a warning to all here if they came for that
purpose. It ought to be that. I want to tell you nothing but
the truth and to speak truthfully about it. I know I have to die.
I know that Jesus has forgiven my sins, and I know He is able
to save me. I want all here to take warning and not get into the
shape I am in. I do not fear to go. I do not fear to die. I do not
fear this (Ed. note: Here Adkins pointed to the scaffold) and


126 Historica, Nores ON FAYETTE County, W. Va.

this (Ed. note: Here Adkins held the rope in his right hand)
has no dread for me. It is a pretty hard way to die, but I am
going to meet my God, and I know He has forgiven me. I have
trusted in Him and prayed that He would save me. Some peo-
ple have said that if I had a chance and could get out I would
go and do Mrs. Radford like her husband, and take her life and
the children’s life, and if I could I would be satisfied. I never
said anything like it. All I said was when I said my prayers
at night and knelt down to pray, was that God would protect
her and the children. Today I wish that I could bring Mr. Rad-
ford back to them, but I can’t and I hope to meet him in heaven,
as he was a Christian man. If he could come down from heaven
and stand here he would take me by the hand and tell you that
I am speaking the truth and hope to meet him in heaven and
shake hands with him there. I have no malice for anybody and

hope you will forgive me. I have no malice and hope to be
forgiven.”

The Slaying of Henry Carr by “Ear Ring” Jim Nichols

“Ear Ring” Jim Nichols was a Virginia Negro who hailed
from Buckingham County. When but a boy, Nichols felt a
hankering to see the world. Because of this inner urge, his
travels carried him over much of the eastern section of the
United States. Finally, he landed at Fire Creek in Fayette
County. Nichols worked at Fire Creek, then at St. Clair, and
next at Powellton. When “Ear Ring” Jim left Powellton he had
$71 which he had accumulated by gambling and working.
Three of his weaknesses were gambling, whiskey, and bad
women. On one of his forays at St. Clair, Nichols lost or spent
all his money. In a house of bad repute he was asleep with his
head on the lap of one Kate Armstrong when a big, bad Negro
by the name of Henry Carr came in. A quarrel ensued and
Henry Carr, according to Nichols, reached toward his hip
pocket. This threatening gesture on the part of Carr caused
“Ear Ring” Jim to shoot him. Carr was shot a number of times
and died with curses on his lips, cursing his killer—“Ear Ring”
Jim. The murderer escaped to Charleston where he was ar-
rested and brought back to Fayette County for trial.

The Rev. Henry Light, a Methodist minister, was foreman of
the Grand Jury which returned the indictment against Nichols.

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BECK (RA BECCA) va
(Monroe County, West rangi) Aenea may or June,

who Ynurdered a LPAAs girl of &
han;ed on the road leading to the

"Beck, the negro
Robert Coalébe
Alexander fa

THa MONROZ COUNTY HISTORY by Oren F. Morton, Page 187 |

The féllowing from Archives of Virginia, Audi-
tor' s Records, Box 5, Item 153, 1825 Env.: |
Monroe County Court of Oyer & Terminer, May @,
1825, Rebecca, girl slave of Robert Coalter,
KOMKKRKERKOMXXKKEEK Murdered 4-year-Gld Adaline
Coalter on April 13. Valued at $150.00, The


KDKINS, Washington, black, hanged Fayetteville, wV 7/20/1894...

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BOARD, Thomas, white, hange Phillipi, Vest Virginia, on a 28, 1853.
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From the Barbour County History:

In 1853 occurred the first murder trial in the county. Thomas

Board waylaid and shot his nephew, Strickler I. H. Chrislip, a small
child, and was indicted for the offence in April, was tried in July

and hanged in October... | ) (Oe ieee eee id

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The only hanging in the history of Barb-our County.

YS a FF] ; N

Mary L. Leach, Librarain

)


THOMAS BOARD, hanged Philippi, Virginia (now West Virginia)
on October 28, 1853,

"On October 28, Thomas Board was hung at Phillippi, Barbour County, Virginia,
for having on Feb, 27 last murdered Strickler J, H. Chrisliph, his nephew, aged six years,
We have already noticed his execution, but the DISPATCH publishes a more minute account of
his execution, It understands that he died under the delusion that he could commit no sin,
and that it was 'no harm for him to kill a hundred men,' He was about 26 years of age, and
h,d grown up in ignorace and idleness, These considerations, perhaps, induced a number of
citizens of Barbour County to petition Governor Johnson for a commutation of his sentence, ®
which however, was of no avail,

"We extract from the Baltimore SUN the following account of theexécution:
'By daby=break the people began to assemble, and notwithstanding it rained all day, not less
than five or six thousands persons, among whom were not less than five hundred women, wite
nessed the execution, The gallows was erected about one half a mile from town, and consisted
of a rough unhewn trunk of a tree, about 19 feet high, with a horizontal arm of about five feet
in MEH length, Under this was thescaffold, about 12 feet from the ground, The prisoner,
dressed in a plain white shroud, reaching to his feet, was carried from the jail in a
wagon, attended by John R, Williamson, theHigh Sheriff, and several assistants, guarded by
"the Barbour Blues,!

"tarrived at the place of execution, theprisoner ascended to theplatform with
apparent alacrity, and was seated in a chair, and covered with a blanket, to protect him
from the rain which fell incessantly, Rev. Henry Stevens, of the M, E. Church, then
addressed the immense throng for about 20 minutes, in a slow and impressive manner, well
calculated to move the hardest heart, These services ended, commenced the most horridaand
appalling tragedy tjat ever disgraced the annals of public executions, The prisoner stepped
upon the trap, the rope was adjusted abouthis neck, and secured to the arm of the gallows;
the Sheriff then asked him if he was ready to die, He answered he was, he touched the trie
gger, the brap fell, and the prisoner dropped to the ground, the rope breaking at the arm
of the gallows. A shudder, a suppressed cry of horror ran through the vast multitude, which
was not lessened by hearing the poor wretch on the ground cry out: 'Oh, Lord, Murder§
Murder '

"The sheriff immediately loosened the rope abouthis neck, and then might have
been heard the gurgling, strangling sound, made in the effort to regain his breath. He
was carried to the scaffold, and seated in a chair, and while the sheriff was endeavoring
to readjust the rope, the prisoner, with a convulsive effort with his feet, which were tied
together, preciptated himself to the ground, with the intention of breaking his own neck,
and thus ending his sufferings, For a while, life seemed extinct, but the vital spark
returned, and he was carried up to the scaffold, and the rope being again adjusted, the
drop again fell, and the prisoner, in his white shroud, covered with mud and dirt, hung as
was appareht to all by his struggles, strangled to death,"

NEW YORK TIMES, New York City, N. Ye, November 9, 1853,

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eeaaz SUNDAY, OCTOBER 23, 1988

The Atlanta Journal AND CONSTITUTION

The Jut of His Jaw Attracted N.C. Women,
But John Brown Oil May Bring Big Bucks

The Associated Press

‘MADISON, N.C. — Jerri Griffin and Barbara Joyce
sort of liked the way the old guy looked.

:“There was something f
about him,” said Ms. Griffin
one of two owners of The Sta-
tion Antiques in Madison.
“Look at his eyes. Look at
that jaw. We just thought he
was handsome.”

What the two bought at a |
Mebane auction turns out to f
be .an original, 21-by-25-inch f[
oil’ ‘portrait of abolitionist |
John Brown. :

The painting, done by art- Ea _
ist‘ John Collins about 1840, aah Brown

up —'a young man with short, wavy hair and an author-
itative square jaw, minus the long, bushy beard preva-
lent in later portraits. The painting is in its original
black frame, with Brown wearing a black topcoat, look-
ing almost on the brink of a smile.
, Ms, Griffin and Ms. Joyce will not say what they
paid for the ancestor — antique-buyers’ jargon for an
old painting — but it could be worth thousands.
.Madison’s finest Civil War heroes would turn over
in their graves if they knew that Brown, considered an
enemy of the South after he led his unsuccessful raid
on the United States arsenal in Harper’s Ferry in 1859;
was right on the main street.of Hogtown, as this town in

‘. western Rockingham County was once called.

‘Brown was convicted of treason and hanged Dec. 2,
1859. At the time, critics called Brown crazy for his

' zealous opposition to slavery. Abolitionists said he was
a martyr.

TO Ms. Griffin ‘att Ms. Joyce, he is just the old guy.
“When I-saw Brown, | liked him,” Ms. Griffin said

oe her first’ encounter with the painting at Boggs Auc-

tion in Mebane. “Besides, Brown is my maiden name.”
Once the two got Brown back to Madison, they were

like two junior high school girls who put off a research

paper until the last day.

~. “All I could rememF2r was Harper’s Ferry and the
childhood song, something about, ‘John’s Brown’s body
lies here i in the grave,’”’ Ms. Griffin said.

The more they forind out, the more they wanted to
know.
“He was gutsy,” Ms. Griffin said. “He stood up for

: what he believed in.’

. At first, Ms. Griffin and Ms. Joyce kept Brown in the
cardboard carton he came in. They finally decided that

wap Stupid and hung him in the shop next to a roll-top |

desk. Lately, they have taken him down and locked him
away in a Safe.

“Who knows what he might be worth?” Ms. Griffin
said. “He has... to be worth something.”

Just how much i is an interesting point.

If the dating of the painting is correct and if Brown
posed for the artist, the new owners could have a real
find, said Tom Vince, librarian and curator of the Hud-
son Library and Historical Society in Hudson, Ohio.

Mr. Vince, who is interested in the painting, said he
knows of only one other Brown portrait that has been

authenticated. That one hangs in the National Portrait

Gallery at the Smithsonian Institution in Washington.
The portrait, painted by Ole Peter Hanson Balling, was
left in the basement of the Washington State Historical

Society Museum for more than 100 years before it was

found in 1974.

The National Portrait Gallery will not say what it
paid for its Brown. It was not a “priceless” price but
was less than $20,000, according to registrar Sue Jen-
kins.

Brown’s letters have brought as much as $1,300 to
$1,400 at auctions. The painting should bring at least
$5,000, Mr. Vince said, adding that value is flexible.

“Whatever a buyer is willing to pay,” he noted,
“that’s how much it’s worth.”

Mr. Vince said he has examined several Brown por-
traits; Ms. Griffin and Ms. Joyce’s painting has a differ-
ent facial expression and face angle.

Ms. Jenkins said the Smithsonian has a list of about
12 known paintings of Brown; the Collins portrait is not
on the list. Fewer than six of ‘the portraits were painted
during Brown’s lifetime, How many of those he sat for
is uncertain.

After making i inquiries across the country, Ms. Grif-
fin and Ms. Joyce have received two requests for addi-

tional information that may lead to offers to buy —:
‘from Silverman’s Galleries in Alexandria, Va., and from

the West Virginia. Archives sn History Museum in
Charleston, W.Va.

West Virginia has the Boyd:B. Stutler Collection,

the largest private collection of Brown’s artifacts. That
collection includes a negative of the painting, but no

notations about it are made, according to Debra Ba-
sham, a staff archivist.

Ms. Griffin and Ms. Joyce still have a lot of ques- ©
tions about the old guy, but one thing is certain.

“We'd like to keep the old guy, but we have to pay

the rent,” Ms. Griffin said. “Besides, Barbara and I |

would fight over him. I couldn’t stand it if she took him

to her house, and she couldn’t stand it if I took him to:

my house. He needs to be where everybody. can see
him.” é

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John, white, hanged Hherlestown,

The Wild Sid

“10 Catch: A: Thief”

“The most scrupulous and honest law-enforcement organization in
American History began in 1850, according to Allan Pinkerton,
founder of the Pinkerton Agency.

In 1849, newly-elected Chicago Mayor Boone appointed -Allan
Pinkerton as Chicago's first detective. This husky, young Scotsman
sogn made a reputation with his fists and with his defiance of armed
thugs. Consequently, he acquired a number of enemies. There were
many attempts .on his life — one almost succeeding. In this case, the
assailant was so close that his pistol set Pinkerton’s coat on fire, and
the bullet shattered a bone in his arm. This bullet was later removed by
a Surgeon.

Jesse James once remarked that he followed one of the Pinkertons
in Chicago so as to kill him in retaliation for the dynamiting of his
mother’s home, which resulted in the loss of his mother's arm.
However, he decided against this because he felt it was so easy and
the Pinkertons would never know who killed him, and Jesse desired to
shoot them face to face.

Allan Pinkerton solved the 1849 Great Chicago Post Office Theft
that caused considerable embarrassment to the postal authorities.
Many thousands of dollars were pilfered by the employees — among
whom were nephews of the postmaster. Pinkerton, when threatened
by the postmaster to produce evidence, thoroughly searched the
suspect room and found over $3,000 of the stolen money behind some
of the wall pictures — ao found behind a picture of the Virgin
Mary. é

in the early 1850s. Pinkertdn decided to open his own private
detective agency. A young Chicago attorney named Edward A.
Rucker was part of what was called the North Western Police Agency.
which was located at 89 Washington Street, on the corner of Dearborn
Street. The Agency claims the date was 1850. However, Rucker soon
disappeared without a trace. In 1856, Allan wrote a letter on stationery
still bearing Rucker’s name on the letterhead. This is debatable,
according to the testimony by Allan in a conductor's trial. He started
his firm in 1852, and the records show that the North Western Police
Agency is successor to Pinkerton and Company. It is possible Allan
formed the Agency with Rucker in 1850 while he was still employed on
other jobs. Rucker's disappearance was never solved. and Allan
Pinkerton was now the sole owner and director of the Agency.

Among his clients were the railroads, and his annual retainers were
as follows: Illinois Central. $2.000; Michigan Central, $2,000: Michigan
Southern and Northern Indiana, $2,000 each: Chicago & Galena
Union. $1,000. These amounts totaled $11,000, which was, at that
time, a huge outlay of money for the protection which they received.

When additional cash was requested by Pinkerton, he was quickly

’ paid. He had free access to all trains and services. Pinkerton solved
‘the famous French Forger Case, which resulted in the conviction and

imprisonment of Jules Imbert. This action made Pinkerton famous in
New York.

Pinkerton was responsible for hiring the first woman detective, as
he recalled. Her appearance. mannerism, and straightforwardness led
him to believe that she was honest, direct, and trustworthy. She was
hired the next day. Pinkerton stated that in all her years with the firm
she never let him down. -

Many historians claim that Pinkerton’s was not the first detective
agency in the world. However, Pinkerton did pattern some of his
investigations after Bidocq Memoirs, a book by the French detective
who in 1811 published the slogan “Set a thief to catch a thief.” This
French detective also founded, in France, his bureau, Des Renseigne-
ments: Information Office. Also in 1832, in the United States. two St.
Louis police officers, Messrs. McDonough and Breuil, opened an
independent agency.

Pinkerton, who had an excellent instinct for selecting the right
people for his agency, was an enigma to his employees. He knew
instinctively if a man could be trusted. He instilled in all his employees
the motto, “All detectives must be men of a high order of mind, and
must possess a clean, honest, comprehensive understanding force of
will and vigor of body.” Criminals, he insisted, eventually reveal their
secrets. if pressured long enough. “Know the criminal in his weakest
moment and force from him the secret that devours him.”

In the 1850s. there were no court rulings restricting the gathering of
evidence, and the Pinkertons were well aware of this fact. So the
secret behind Allan Pinkerton's success was pure and simple: obtaina

=. confession by the most efficient method necessary.

—

by H. Franklin Greene

Allan Pinkerton, the son of Isabella and William Pinkerton, was born
on August 25, 1819 on the River Clyde's Left Bank in Glasgow,
Scotland. Allan's formative years were spent on Muirhead Street, where
crime of every description was a common occurrence. This street,
known as the Gorbals, was considered to be the most filthy and wicked
area in the country. Numerous brothels could be found, and muggers,
thieves, and hoodlums were in every other building or doorway. Those
who dared to enter this section had to be heavily armed with a club or
pistol in order to fight off the assailants who waited to chloroform or rob
them.

The city jails were filled to capacity from Gorbals. Even the other
sinister sections, such as Shoreditch and The Jago, were tame in
comparison to the Gorbal sections. Allan Pinkerton, himself, was a
renegade with a price on his head and warrants for his arrest in Europe.
He belonged to the Chartist Movement, a revolutionary movement
headed by Julian Harney.

On Nov. 3, 1839, in Scotland, this Chartist group attempted to take
Monmouth Castle by force and was shot down by the English Red
Coats. A warrant was issued for Pinkerton’s arrest, but he escaped and
fled to America. Not finding work as a printer in Chicago, he becamea
cooper in Dundee, Illinois. Cooperage was hard work (making hoops,
staves, and poles for barrels). So it was not long before he became an
amateur detective and shill for the County Sheriff and merchants of
Dundee.

On a visit to Chicago to testify against a counterfeiter, he realized
where the action was with money: Chicago.

John Brown, the abolitionist, was not a lawbreaker in the eyes of
Allan Pinkerton. He became a close friend and also a partner in the
slave underground railroad. It was reported there were more slaves in
his Chicago home than ever in the Dundee cooperage. As Lloyd Lewis
observed: “While Pinkerton’'s right hand served the law, his left hand
broke the law.”

Even after Brown murdered the group of Midwestern settlers in the
infamous Pottawatomie Massacre in retaliation for the death of five
Free-State teri orists, Pinkerton continued to protect Brown. Pinkerton
also played an important part in Brown's Massacre of Missouri
Farmers. Brown's followers who were thieves and adventurers not only
freed the slaves, but also stole watches, jewels, horses, oxen, saddles,
and provisions after murdering the farmers.

Even after President Buchanan placed a reward on John Brown's
head for murder, looting, and theft, Pinkerton protected him in his
home and shielded him from the police. On one of his secret trips,
Brown informed Pinkerton he needed money. Pinkerton approacheda
convention hall where a Democratic meeting was being held and
threatened the entire group, along with the U.S. Marshal, if they did not
raise $500 or $600. Pinkerton was too well-known for his violent
support of Brown — so within a few minutes he was given $600. Brown
informed Pinkerton of the Harper's Ferry Raid which would take place
in the months to come. Apparently Pinkerton approved of this because
he did nothing about it.

In the early part of the 20th century, Pinkerton’s Agency became the
pattern for the Federal Bureau of Investigation (FBI) and the late Edgar
J. Hoover took over where the Pinkertons stopped. According to the
files of the FBI, released under the Freedom of Information Act, Hoover
seemed to be a vengeful operative who collected defamatory material
and gossip, no matter how trivial. unreliable, or inaccurate.

In the late 18th century, Kentucky became known for its thorough-
bred racehorses; a standard set of rules invariably included as a
guideline for judging thoroughbreds was, “It takes one to know one.”
So Vidocq. when writing his memoirs, only updated this rule by wisely
noting “It takes a thief to catch a thief.” :

Allan Pinkerton really was no puzzle at all — he knew a thief when he
saw one.

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for heresy before the Preghy
rated. He died in New You
I

80), lian journali
Scot., on Nov. 29,181
+h his father, Peter Bro
1843 they moved to Tor
supported the newly f
at first with his father’
| journal, the weekly T.
3 and through Brown’s ; :
ost dictatorial influence py
d the Canadian parliament,
Kent county. His vehemey
power of the Roman Cathgf
rlianfent of the French
ilar in Lower Canad;
. Largely owing to his
ate, the clergy reserves Swen
ed the complete secularizat
scessfully. . He also foug!
f the two Canadas. i
g granted an equal
sle would be recogt
‘He rebuilt the Upp
mn by population”,
rown-Dorion administ
; of a confederation 0
» accomplish this enc
sonal and political o
- Sir’ John) A. -Macdonal
federation was carried throug
ng terms proposed for re n
nited States, he resigne
o support its federation;
)ntar*~ ~~ never again
ise O powerful ja
ired _, _ : new domi
adian senate, and ind
ith Sir Edward .Tho
with the- United Stat
_ draft treaty failed to:

nA ai Ss Sela Sale Ani Alec td

mployee and died at

Globe (1960). ve
(W. L. G.; J. MoS.

(1814-1886), US?

He began to paint ‘portts
ston under Chester Hardt
from 1836 to 1839 spent
1eer to earn enough -toistugy:
-46) in Italy, but, returping:
ively American, never, DEli®
irly U.S. sculptors, by- Ital ji
36, at Newburgh, N.Yer ae
tably that of Gen. Winfiee
id one of George Washingi®.
city, which was the ‘secom
1 States. Brown was \OnGgs &
his own bronzes. Among” in
(Union square, New?
‘linton, Philip Kearny.
Statuary hall of the Ca
on and “The Angel of
New York city}

meterv

Ki SusH-BROWN ig
- U.S. sculptors, his;

* equestrian statues of Generals Meade and Reynolds at
sburg'and “Justinian” in the New York appellate courthouse
his chief works. He completed also a portrait-bust of Henry
~ -e Brown for the Hall of Fame of New York university.
BROWN, JACOB JENNINGS (1775-1828), U.S. army of-
«er, was born of Quaker parents in Bucks county, Pa., on. May 9,
ae He served for a time (1798-1800) as military secretary to
Hamilton, became a successful farmer in western New
York and in 1810 was made a brigadier general in the New York
gate militia. At the outbreak of war with Great Britain in 1812,
he was in command of the New York state frontier and was suc-
ceil in repelling attacks of the enemy at Ogdensburg, Oct. 3,
oe and at Sackets Harbor, May 29, 1813. In the following July
he was commissioned a brigadier general in the U.S. army and
siaced in command at Niagara. From there he took the offensive
and after preliminary successes fought an indecisive battle on
y 25 at Lundy’s Lane. He became the commanding general of
; in 1821 and served in that capacity until his death,
(E. E.R.)

(1715-1766), English clergyman, poet and

at Rothbury, Northumberland, on Nov. 5,
15, and educated at St. John’s college, Cambridge. He was
senior wrangler in 1735 and then took holy orders. His poem en-
titled Honour (1743) was followed by the Essay on Satire, written
on the death of Alexander Pope, which gained for him the friend-
ship of Bishop William Warburton. In 1751 he wrote his Essay
on the Characteristics of the Earl of Shaftesbury, containing an
able defense of the new utilitarian philosophy, and particularly em-
phasizing the advantages of state-controlled education. In 1756
he received the living of Great Horkesley, in Essex, and five years
later became vicar of Newcastle upon Tyne. Garrick appeared in
his two plays Barbarossa (1754) and Athelstan (1756).'. His
Estimate of the Manners and Principles of the Times (1757-58),
a bitter satire, was very popular. ‘ Invited by Catherine II of
Russia to advise her on education, he prepared for the journey but
was prevented by illness from setting out. In one of the fits of
madness that had often before attacked him, Brown committed
suicide on Sept. 23, 1766.

See his poetical works, ed.. by Anderson’ (1794) ;- and Biographia
Britannica, ed. by A. Kippis (1780). (G. Hv.).
BROWN, JOHN (1800-1859), U.S. abolitionist, leader of the
attack on Harpers Ferry in 1859, was born on May: 9, 1800, at
Torrington, Conn. He was one of the 16 children of Owen Brown,
whose father had served as a captain in the Revolutionary War.
In 1805 Owen Brown moved with his family to the Western Re-
serve district of Ohio. John Brown, at 18, intended to prepare for
the Congregational ministry, and he studied briefly at schools in
Massachusetts and Connecticut.) ©)
Two years later. he married ‘+ i he:
Dianthe Lusk, who bore him 7
children ; after her death he mar- *
tied Mary Anne Day, who bore
him 13 more. He moved about a
kreat deal, living from time to
time in Ohio, Pennsylvania and
Massachusetts, and working as a
drover, tanner, stock grower,
wool merchant and farmer: In
1849 he settled with his family in
« Negro community founded at
North Elba,"N.Y., on land do-
Ps by the antislavery philan-
‘hropist Gerrit Smith of Peter-
“a N.Y. Long a foe of slavery,
edie henceforth was to act like
Nonomaniac on the subject.
ria Brown went to Kansas,
had er five of his sons already
ie Kansas was then the scene of violent conflict between
Titi and proslavery groups. Settling near Osawatomie,
ti N soon became conspicuous as a guerrilla leader, especially
4use of the so-called Pottawatomie massacre. Brooding over

punt.
Gey

Hing

\lexander

Jul
the U.S. army
Feb. 24, 1828.

BROWN, JOHN

slaywright, was born

THE GRANGER COLLECTION

JOHN BROWN, FROM DAGUERREO-
TYPE MADE ABOUT 1850

— ou, ca. Rri Pranicn
Ency cle poed: BROWN

Vol. Y (1773)

285

the killing of five free-soilers, he concluded that he had a divine
mission to take vengeance. On the night of May 24-25, 1856, he
led four of his sons and three other men to the cabins of suspected
proslavery settlers living along Pottawatomie creek. His fol-
lowers dragged five men out and hacked them to death.

In the spring of 1858 Brown held a remarkable convention of
Negroes and whites at Chatham, Can. There he announced his in-
tention to set up in the Maryland and Virginia mountains a strong-
hold where escaping slaves might gather and defend themselves.
He proposed, and the convention adopted, a “provisional consti-
tution and ordinance for the people of the United States.” He was
elected commander in chief of this paper government. For his
visionary enterprise he gained the moral and financial support of
Gerrit Smith and the prominent Bostonians, Theodore Parker,
G. L. Stearns, T. W. Higginson, S. G.. Howe, and F. B. Sanborn
(the “secret six”). _In the:summer of 1859, with an armed and
disciplined band of 16 white men and 5 Negroes, Brown set up a
kind of military headquarters in.a rented farmhouse near Harpers
Ferry, the site of a federal armory. He planned to seize the armory
as the first step in carrying out his program. Launching his attack
on the. night of Oct. 16, he quickly took the armory and then
rounded up about 60 leading men of the area, whom he meant to
hold as hostages. Throughout the next day and night: he and his
men held out against the local militia, but on the following morning
he surrendered to a small force of U.S. marines, under Col. Robert
E. Lee, after they had broken in and overpowered him. He him-
self had been seriously wounded, and 10 of his followers, among
them two of his sons, had been killed: Six were captured (and
later executed) and five escaped... 9: 40202):

Jailed in Charles Town, Va. (now. Charleston, W.Va.), Brown
was tried for murder, slave insurrection and “treason to the Com-
monwealth,” that is, to the state of Virginia. At the trial, evidence
was produced to show that many of his ancestors and’ relatives
had been emotionally disturbed and that he himself probably suf-
fered from mental illness.:He refused, however, to permit a plea
of insanity. In a speech to the court he denied all the charges
against him and admitted only that he had-intended to free the
slaves. “I say,” he added, “I am yet too young to understand that
God is any respecter of persons.’ I believe that to have interfered
as I have done—as I have always freely admitted I have done—in
behalf of His despised poor, was not wrong, but right.” He was
convicted and, on Dec. 2, hanged.': He was buried at North Elba.

The Harpers Ferry raid failed utterly to do what Brown appar-

“ently had had in mind, that is, to start a general movement toward

escape and freedom on the part of the slaves.. Nevertheless, the
raid had important consequences, for it immeasurably heightened
the sectional feelings that soon were to eventuate in the Civil War.
In the South little attention was paid to the views of responsible
Republican leaders like Abraham Lincoln who disapproved of the
raid. More attention was given to the statements of such New
England intellectuals as Ralph Waldo Emerson and Henry David
Thoreau who looked upon Brown as a hero and a saint. Once the
war had come, Union soldiers took up the song “John Brown’s
Body,” and his soul went ‘marching on.” Thus he became a
legendary martyr to the cause of freedom.) - >!

BrstiocrAPHY.—F. B. Sanborn, Life and Letters of John Brown
(1885); O. G. Villard, John Brown, 1800-1859 (1910; rev. ed., 1943) ;
J. C. Malin, John Brown and the Legend of Fifty-Six (1942); J..C.
Furnas, The Road to Harpers Ferry (1959); Louis Ruchames (ed.),
A John Brown Reader (1959); S. B. Oates, To Purge This Land with
Blood: a Biography of John Brown (1970). (R.N. Cr.)

BROWN, SIR JOHN (1816-1896), English armour-plate
manufacturer, was born at Sheffield on Dec. 6, 1816, the son of a
slater, and began work at a cutlery firm. Brown invented in 1848
the conical steel spring buffer for railway cars. In 1856 he started
the Atlas iron works in Sheffield, which covered 30 ac. and em-
ployed eventually more than 4,000 workmen. Besides supplying
iron to the Sheffield steel trade, Brown himself successfully de-
veloped the Bessemer process. In 1860, after seeing the French
ship “La Gloire” armoured with hammered plate, he. determined
to attempt the production of armour for the British navy by a
rolling process. The experiment was successful and led to orders
for armour plate sufficient to protect about three-quarters of the


i

V4


CHAPTER XLII.
JOHN BROWN’S RAID ON HARPER’S FERRY.

THE year 1859 will long be memorable for the bold
attempt of John Brown and his companions to burst
the bolted door of the Southern house of bondage,
and lead out the captives by a more effectual wa y than
they had yet known; an attempt in which, it is true,
the little band of heroes dashed themselves to bloody
death, but, at the same time, shook the prison walls
from summit to foundation, and shot wild alarm into
every tyrant heart in all the slave-land. What were
the plans and purposes of the noble old man is not
precisely known, and perhaps will never be; but
whatever they were, there is reason to believe they
had been long maturing,—brooded over silently and
secretly, with much earnest thought, and under a
solemn sense of religious duty.

Of the five colored men who were with the hero
at the attack on Harper’s Ferry, only two, Shields
Green and John A. Copeland, were captured alive.
The first of these was a native of South Carolina,
having been born in the city of Charleston, in the
year 1832. Escaping to the North in 1857, he re-
. (340)

JOHN BROWN’S RAID ON HARPER’S FERRY. 34]

sided in Rochester, New York, until attracted by the
unadorned eloquence and native magnetism of John
Brown.

Shields Green was of unmixed blood, good counte-
nance, bright eye, and small in figure. One of his
companions in the Harper’s Ferry fight, says of
Green, ‘‘He was the most inexorable of all our party ;
a very Turco in his hatred against the stealers of men.
Wiser and better men no doubt there were, but a
braver man never lived than Shields Green.’’ *

He behaved with becoming coolness and heroism at
his execution, ascending the scaffold with a firm, un-
wavering step, and died as he had lived, a brave man,
expressing to the last his eternal hatred to human
bondage, prophesying that slavery would soon come
to a bloody end.

John A. Copeland was from North Carolina, and
was a mulatto of superior abilities, and a genuine lover
of liberty and justice. He died as became one who
had linked his fate with that of the hero of Harper’s
Ferry.

* “A Voice from Harper’s Ferry.” ©. P. Anderson.

Fe ego reg

(wv)

10B/Las Vegas Review-Journal and Las Vegas Sun/Sunday, October 8, 1995

News Features

a

Hometown refuses to honor abolitionist

By Strat Douthat
Associated Press

TORRINGTON, Conn. — John
Brown, the fiery abolitionist who
was hanged for leading a slave
rebellion in Virginia, is a former
hometown boy whose memory
still stirs up strong feelings in
the city where he spent his early
childhood.

The image of the Brown home-
stead is plastered all over town.
It’s part of the official city seal,
worn by firefighters and police of-
ficers on their lapels. The house’s
silhouette is also emblazoned on
» the side of every city vehicle.

Yet Brown’s birthplace on the

outskirts of town is virtually ig-
hored. All that remains of the
house-turned-museum, which
burned down in 1918, are the
bare outlines of the foundation
and a large stone bearing the in-
scription: “In a house on this site
John Brown was born May 9,
1800.”
_- Mayor Delia Donne thinks it’s
time the Brown homestead was
reconstructed and used to attract
tourists. She faces an uphill
battle.

The association charged with
perpetuating Brown’s memory
has shown no interest in develop-
ing the site and, surprisingly, at
least one member is even hostile
to the idea.

“Why would anybody be inter-
ested? There’s nothing to admire
in John Brown,” John Brooks,
one of seven members of the John
Brown Association, recently told
The Litchfield County Times.

“I wouldn’t honor him,” the 96-
year-old banker says. “That guy
/got us into the Civil War. John
: Brown was born here, but that
,isn’'t anything we should be
| Proud of. That scoundrel .. took
—F

SOR

ER

JOHN BROWN
Connecticut-born abolitionist

the law into his own hands.”
The John Brown Association,

which was formed at the turn of

the century, years ago gave the
privately owned Torrington Wa-
ter Co. a 99-year lease on the
property.

The mayor and Ernest Ceder,
Torrington’s municipal historian,
say they find it unsettling that a
member of the John Brown Asso-
ciation would take such a posi-
tion about Brown.

“There’s some animosity to
John Brown in this area,” the
mayor says,

Ceder says he is outraged by
the opposition.

“I think he was one of the
greatest men in American
history,” Ceder says. “He was

Keep ‘Em In
Your Mouth
Not *

Richard Seberq.ons -
aE

instrumental in waking up the
North about its apathy to
slavery.”

Brown, whose family moved to
Ohio when he was 5, grew up to
be an ardent foe of slavery.

In 1857, Brown began enlisting
volunteers to take part in a rebel-
lion by slaves and free blacks.

On the night of Oct. 16, 1859,
Brown and 21 followers captured
a federal arsenal at Harpers Fer-
ry, Va., now West Virginia, and
took a number of prisoners. A
company of U.S. Marines, led by
Col. Robert E. Lee, attacked the
arsenal the next day, killing 10 of
Brown’s supporters and wound-
ing him.

The uprising caused wild fears
in the South, and shocked

| hl i

antislavery forces in the North.
Brown recovered from his
wounds. He was charged with
treason and was hanged on Dec.
2, 1859.

Joseph E. Cravanzola, presi-
dent of the John Brown Associa-
tion and head of the Torrington
Historical Society, agrees with
the town historian that Brown
was a great man.

But Cravanzola says the asso-

ciation has never discussed de-
veloping the site and currently
has no plans to do so.
- “The association meets every
year or so and elects new
officers,” Cravanzola says. “We'll
meet again next year. Maybe it
will come up then, maybe it
won't.”

|
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: “Taborsky (right) and Culombe

Joseph L. Taborsky and Arthur Culom-
be were found guilty of first-degree mur-
der in the -six bullet-in-back-of-head slay-
ings that had all Connecticut in ferment
(The ;Capture of Connecticut’s Kneel-
down-and-die-dogs, June FRONT PAGE 1957).
Because of the amount of testimony in-
volved in the six ‘brutal killings, it turned
out to be the longest murder trial in Con-
necticut’s history. When the verdict was
finally brought into the Hartford court-

room, the judge immediately sentenced -

both men to death in the electric chair.

Harry Washburn, under a 99-year sen-
‘tence for the car-bomb-murder of his for-
mer mother-in-law, Mrs. Helen Harris
Weaver (The Murder That Shook Texas,
May FRONT. PAGE, 1955), continued. to pro-
test his innocence and said that he would
enter. an appeal. The 99-year sentence
capped the 41-year-old Houston contrac-
tor’s second. trial. At. the first trial, he re-

ceived a. life’ sentence, but then the Court

of Criminal Appeals ordered a new trial
and once again Washburn was convicted.
The state contended that Washburn had ac-
tually intended to kill Mrs. Weaver's second
husband, Harry, a consulting architect, be-
cause he had prevented Mrs.. Weaver from
giving money to Washburn. (Washburn

was divorced from Mrs. Weaver’s daughter.

by a previous marriage.) Washburn then
planted the bomb in the car, but Mrs.
Weaver instead of her husband entered ‘it,
stepped on the starter and was blown to
bits in a tremendous explosion. . :

Harry Winefield, 32, ocean-hopping bur-
glary suspect, was indicted on three charges
in connection with a $37,000 gem theft at
New York’s: exclusive Savoy Plaza: Hotel
(Bum Voyage, October FRONT PAGE, 1957).
His blonde: wife Carole Jenette, 26,: had
better luck in Felony Court... . a charge
of criminally receiving stolen property was

dismissed by Magistrate Joseph A. Mar-
tinis when Carole claimed she had not
known that a mink fur-piecé given her by
Harry was stolen property. But she didn’t

( left >)

received extreme penalty—death.

go scot free. She was continued held with-
out bail to await trial in Special Sessions
Court on a charge of illegal possession of
narcotics. The Winefields fled to” England
on the Dutch liner Maasdam, but British

- Officials, alerted by New York police, picked

them up on arrival at Southampton.

Nicholas .M. Kostic, 40, a steelworker

' charged with slaying his wife and a prom-

inent. Massilon, Ohio, physician (You'll
Never Lock Me Out Again, May FRONT
PAGE, 1956), pleaded guilty to two. counts
of second-degree murder. Common Pleas
Judge George N. Graham immediately sen-
tenced him to two consecutive life terms in
Ohio Penitentiary. Kostic will be eligible to
apply for parole after 20 years—he is re<
quired to serve at least ten years for the
murder of his estranged wife, Mary, 34, and
ten years for that of Dr. H. P. Hart, 72,

both cut. down by Kostic at Mary’s home.

in Massilon in a fussilade of shots.

Edward Leon (Pete) Williams, under
sentence of death for the kidnaping of
Tulsa ministerial student, Tommy Cooke
(Going My Way, Brother Sin?, October
FRONT PAGE, 1956), will not learn the re-
sults of his appeal for quite some time. The
judge’ reviewing his case, John A. Brett,
stated that the appeal poses one of the
most puzzling problems he has seen to date.
Williams’ lawyers argued the following:
Their client had been tried for the murder
of Cooke (whom Williams shot after the
kidnaping) in the area where the killing
took place—Muskogee—and sentenced to
life imprisonment. Then. he was returned to
Tulsa where he pleaded guilty to kidnap-

ing charges and was sentenced by Judge -

Leslie Webb to death in the electric chair.
Now the crux of the defense’s appeal case
is whether Williams was sentenced to death
for the kidnaping or the murder. They argue
that it was the murder which earned Wil-
liams the death penalty; that if he’d come
up on pure kidnaping charges (with Cooke
alive), he’d have received something less
than death. But because he killed Cooke,

Derecte ~ Ab vem de, [FS

he was sentenced to die. This, they claim,
constitutes double jeopardy—because Wil-
liams has already been tried and convicted
for the murder! No wonder the judge said
that “the appeals ‘court is faced with an
extremely difficult task and will not be able
to reach a quick decision.”

Elmer David Bruner was convicted of
first-degree murder in Huntington, W. Va.,
without. recommendation of mercy. Since
the death penalty is mandatory in such
cases under West Virginia law, Bruner will
die for his crime unless-his lawyers are suc-
cessful in a motion made to set aside the
conviction: Bruner, a 40-year-old handy-
man who had been in and out of correction-
al institutions since he was ten, confessed
in a signed statement that he was robbing
a home when the owner, Mrs. Ruby H.
Miller surprised him. She aimed a shotgun
at him, and he attacked her and beat her
so savagely that her head was “almost like

. jelly”—in the prosecution’s words—and she

died (The Perambulating Yard Man, Sep-
tember FRONT PAGE, 1957). Extra tension
was generated in the final minutes of the
trial by guards who continuously patroled
the court, surveying the audience. This was
due to. telephoned threats made to the
prosecutor and his wife as well as to the
judge and his wife that they would be killed
if Bruner received the death sentence.’ But
the anonymous caller failed to have any
effect on the workings of the court, and
Bruner now faces death by execution.

Richard Marx, 22, was found guilty of
the fatal shooting of Leonard 'M. Brown, 28,
during the attempted holdup of a five-and-

ee Pag ge

aera el Py a ate kad
dime store on Kissena Boulevard in Flush-
ing, Queens, New York City. Marx, who
had also been involved in the shooting of
former Marine, Charlie Krauss, during a
holdup in Krauss’ cab (My Heart Pumped
Venom, June FRONT PAGE, 1957), was tense
and quiet as the all-male jury filed in. He
did not change expression as the foreman
delivered the verdict, guilty of murder in
the first degree with a recommendation of

4


NO PLACE TO HIDE
A STOLEN BABY

(MD May, 1959)

On December 3lst, 1958, while New
Yorkers were celebrating New Year’s
Eve, Jose and Doraliza Tavarez became
the proud and happy parents of their
first son, whom they named Johnny. At
home they had two little girls, aged five
and three. They lived in a tiny one-
room apartment in New York’s Upper
West Side. Now they hoped to find a
larger home.

On January 2lst Mrs Tavarez took
Johnny to the clinic for a checkup. There
they met a woman who said she was
Mrs. Garcia and she knew of a nice
large apartment available in the Bronx.
She offered to go home with Mrs. Tava-
rez and watch the baby while the mother
went to see about the apartment. Leav-
ing her two little girls with a neighbor,
and the baby in his crib, watched over
by Mrs. Garcia, Doraliza hurried uptown.
But she found no apartment at the ad-
dress given and when she returned home
Mrs. Garcia and the baby had vanished.

Detectives presently identified the mys-
terious “Mrs. Garcia” as Mrs. Asuncion
Ortiz, 25, of West 91st Street, and they
found little Johnny Tavarez, unharmed,
in her home. At first she protested the
baby boy was hers, but his footprints,
taken at the hospital, identified him as
Johnny Tavarez, and he was promptly
returned to his distraught young parents.

Indicted February llth, 1959, on two
counts of kidnaping, Mrs Ortiz, mother
of three young children, was sentenced
on August 12th to an indeterminate
term, up to five years, in the Women’s
Reformatory in Bedford Hills, New
York. She had confessed to kidnaping
the baby because she wanted to give her
husband a son, and her baby boy had
been stillborn.

In imposing sentence, General Ses-
sions Judge Charles Marks declared,
“To have a mother of three do a thing
like this, without any feeling for the
parents of the child, deserves punish-
ment, not as a lesson to others, but be-
cause it was a calculated, deliberate
act.”

|
:

Thomas Mulligan

"| DIDN'T MEAN TO KILL HIM"

(MD June, 1959)

On the morning of February 28th,
1959, Adam Michalski’s barber shop on
McDougall Avenue in Detroit, Michigan,
failed to open on time. The first few
customers who tried to get in thought
probably the old man had overslept, but
at 10:30 a.m., one customer entered the
shop through the open door and noticed
that the cash register had been rifled.
Going through to the back of the one-
chair shop, where Adam lived alone
with his birds and his dog, the customer
discovered the barber, lying face down
on the rug, his back covered with blood.

When homicide detectives arrived,
they- discovered several pieces of woo]
lint on the blood-spattered door, and
deduced that they had come from blue
knitted gloves. Questioning neighbors,
they also found that a man wearing a
yellow scarf had been seen entering

LATEST REPORTS ON
CASES PUBLISHED IN MD

Adam’s shop the evening before. Detec-
tives and patrolmen combed the neigh-
borhood in search of a suspect given to
wearing blue gloves and a yellow scarf.
Checking through local taverns, they dis-
covered that a man named Thomas Mul-
ligan, a 36-year-old former paratrooper,
wore his service’s yellow scarf habitu-
ally. They also found that Mulligan
was a friend of the dead barber. Mulli-
gan was arrested and questioned. On
Monday, March 2nd, he confessed hav-
ing stabbed the old man to death be-
cause he needed money, but said he had
not meant to hurt him. He was in-
dicted by the Wayne County grand jury
and on July 1st, 1959, received a man-
datory life sentence. His total loot, $55.

“THE LOOK IN HER
EYES GOT ME"

(MD September, 1957)

The body of Mrs. Ruby Miller, wife
of a prominent building contractor, was
discovered shortly after noon on May
27th, 1957, in a bedroom of their at-
tractive Huntington, West Virginia,
home. She had been bludgeoned to death,
with a claw hammer, which was found
beneath the bed. A jewel case had been
stolen from the room,

Later that afternoon Elmer David
Bruner, 40, was arrested and identified
as the man who had burglarized a neigh-
bor’s home a few days earlier. In his
luggage was found property stolen from
the neighbor, and the jewel case miss-
ing from the Miller home. Bruner finally
confessed that Mrs. Miller had surprised
him in the act of burglarizing her home
and he had struck her ‘several times
with the hammer.

On June 29th an all-male jury found
Bruner guilty of murder in the first-
degree, with no recommendation for
mercy, and he was sentenced to die.
However, he was granted several stays
of execution while appeals were heard
by higher courts. On January 12th, 1959,
his final petition was denied by the
United States Supreme Court, and on
April 3rd Elmer David Bruner was exe-
cuted in the West Virginia Penitentiary
at Moundsville.

PARTY GIRL

“T just got hold «
MASTER DETECTIVE
read was Party G

It was terrible t
to die so violent],
usually headed fc
certainly asked fo

The police did a
with her murderer
son here for girls
lence. Staying ar
dull, but it’s a lot
life.”

Ed.: We agree wi
and it doesn’t havi


BRUNER, Elmer David, wh, elec. WV (Cabe11) April 3

» 1959
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Latest reports on cases published in MD

Mrs. Emily Foster, slain at her door

SLAIN NURSE AND THE
PITTSBURGH TERRORIST

(MD July, 1957)

On the night of January 30th, 1957,
Mrs. Emily Foster, 25, an expectant
mother, attended a bingo game with her
husband’s parents. She left them at
their door at 10:15 p.m., having a 10-
minute drive to reach her own Leech-
burg, Pennsylvania, home.

At 10:40 p.m. her husband returned
from a night of bowling with some
friends and found his wife sprawled on
her back in the driveway. She died in
his arms. She had been brutally
bludgeoned, her skull fractured in four
places, by a heavy wrench or tire iron,
Her purse was missing.

In Leechburg and in Pittsburgh, Penn-
sylvania, there had been a number of
recent robbery-assaults upon women.
The attacker was described as a slim,
moustached Negro. On March 9th a
man who identified himself as Robert
Tallie Davis, 29, was arrested in Pitts-
burgh while attempting to assault and
rob two women. It was learned that
Davis had escaped from West Virginia
state prison at Moundsville on June 8th,
1955, and had been on a crime rampage
ever since. :

Davis confessed the fatal attack on
Mrs. Foster and on March Ist in the
courthouse at Kittanning, county seat of
Armstrong County, Pennsylvania, he
was formally charged with her murder.

At his trialy in the court of Judge
J. Frank Graff, evidence was produced
in support of his confession and a jury
of six men and six women found Davis

Nate

guilty of first-degree murder and recom-
mended death in the electric chair. This
is the first time in 54 years that a death
sentence has been decreed for murder
in Armstrong County.

"A GUY CAN'T RUN FOREVER"

(MD June, 1957)

At 8 a.m. on Saturday, February 9th,
1957, the bodies of Mr. and Mrs. Lloyd
See were removed from the charred re-
mains of their fire-gutted home in Nor-
wich, Ohio. Examination disclosed that
both victims had been shot to death and
the fire had been set to cover up the
crime. A search was instituted for Rus-
sell McCoy, 22, Mrs. See’s half-brother,
who lived with them, but he had van-
ished. It was established that a tin box
containing $600 in cash had been taken
from the house. On assembling further
evidence, a charge of “unlawful flight
to avoid arrest for murder” was lodged
against Russell McCoy.

On February 16th a man knocked at
the door of the county jail. “I’m Mc-
Coy,” he said. “I’ve come to give myself
up. I can’t live with it any longer.”

But McCoy’s conscience still troubled
him. He next confessed the holdup-
murders on November 23rd, 1956, of
Reynaldo Amodio, 30, proprietor of a
Uniontown, Ohio, market, and his clerk,
Paul Cain, 35. McCoy implicated his pal,
Harry Dale Bundy, 38, in the slayings.
About $400 was taken in the robbery.

Bundy stoutly denied any participa-
tion in the murders, but on May 27th
both men were indicted—Russell Mc-
Coy on four first-degree murder counts
and Harry Dale Bundy on two first-
degree murder counts. The trial of Mc-
Coy for the murders of Mr. and Mrs.
Lloyd See was deferred in order that he
might testify for the state in the trial
of Dale Bundy for the Uniontown mur-
ders.

In Canton, Ohio, on June 23rd, 1957,
after five hours’ deliberation a jury of
seven women and five men returned a
guilty verdict against Bundy. The jury
did not recommend mercy. Thus Bundy
is automatically doomed to die. Judge
John Rosetti deferred sentence, pending
a motion for a new trial.

THE FARMER AND THE
CARELESS SLAYER

(MD July, 1957)

When 76-year-old W. R. “Rob” Mc-
Broom failed to call for his mail as usual
a search was made for him. And on
March 20th, 1957, his body was found
hidden in a. gully on his Bloomington,
Tennessee, farm. The elderly farmer

i’

Lelietot

had been shot and his throat slashed.
Although the only logical motive seemed
to be robbery, the sum of $365 in cash
was found in an inner pocket of the vic-
tim’s shirt and an expensive watch in
his trousers’ pocket.

Suspicion presently attached to James
Roberts, 37, an ex-convict who was
visiting his mother in Bloomington.
Roberts accused 17-year-old Joe Rober-
son of the murder, protesting that he
himself had nothing to do with it. Lie
detector tests, however, indicated other-
wise. Both men were arrested on
March 2lst.

Roberson confessed that he and
Roberts had forced the feeble old man
to get into their car on the night of
March 19th. They drove him to the
gully, intending to rob him. Failing to
find his money, they shot and slashed
him, “to make sure he was dead.” Rob-
erson showed officers where he had
thrown the knife used. He still had
the rifle with which the farmer was shot.

On June 12th both Roberts and
Roberson were indicted for first degree
murder in the slaying of the farmer
and were held for trial.

“THE LOOK IN HER EYES GOT ME"

(MD September, 1957)

Justice moved swiftly in the case of
the murder, on May 27th, 1957, of Mrs.
Ruby Miller, wife of a Huntington, West
Virginia, contractor. Her body was
found that evening on her bed, her head
crushed with savage blows from a claw
hammer, which was discovered beneath
the bed. Her eyes were covered with
adhesive tape.

Mrs. Miller had been assisting her
husband in his office during that morn-
ing, since his secretary was absent. At
12:30 she drove home, as Mr, Miller had
an appointment at the Rotary club. He
found his wife slain when he returned
home, shortly after 6 p.m. The house
had been ransacked, a jewelry box was
missing and a shotgun had been re-
moved from the gun case.

Police questioned Elmer David Brun-
er, 40, arrested that day as a burglary
suspect. On May 22nd Bruner had
looted the estate of a neighbor of the
Millers, where he was temporarily em-
ployed to do some landscape work, and
had attacked the owner’s wife. A search
of his luggage revealed the jewel case
missing from the Miller home.

Bruner finally confessed that Mrs.
Miller had surprised him ransacking the
house. She seized a gun from the case,
he claimed, and threatened him with it
and he struck her in self-defense with
“something he picked up.” He had taped

Mrs. Ruby 5

her eyes afte:
fessed. “I cc
look in her eye
Bruner, whc
list of convic
housebreaking
degree murde!
glary. On S
all-male jury,
liberation, retu
first-degree mi
dation for mer
Ruby Miller.
the verdict mi

THE SLASH
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among a crov
at a Sunday
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body of a sr
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Thomas Lynn
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throat slashed.
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ocket of the vic-
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‘ES GOT ME"

1957)

in the case of
, 1957, of Mrs.
intington, West
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covered with

assisting her
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itary club. He
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4. The house
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David Brun-
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ighbor of the
nporarily em-
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vife. A search
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ome.
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cansacking the
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d him with it
-defense with
He had taped

Mrs. Ruby Miller, victim of burglar

her eyes after she was dead, he con-
fessed. “I couldn’t stand that awful
look in her eyes.”

Bruner, whose record showed a long
list of convictions for burglary and
housebreaking, was charged with first-
degree murder and two counts of bur-
glary. On Saturday, June 29th, an
all-male jury, after four hours of de-
liberation, returned a verdict of guilty of
first-degree murder, without recommen-
dation for mercy, in the slaying of Mrs.
Ruby Miller. Under West Virginia law
the verdict makes death mandatory.

THE SLASHER AT THE MATINEE

(MD May, 1956)

The three little Wendorf boys, Wil-
liam, 10, Robert, 8, and Ronald, 7, were
among a crowd of children and adults
at a Sunday matinee, February 5th,
1956, in a Sacramento, California, movie
theatre. Presently little Ronnie had to
go to the rest room. His brothers thought
they saw him come back later and take
a seat nearer the front of the house.

Hearing a muffled scream from the
rest room, the assistant manager of the
theatre went to investigate. He saw
blood on the floor of one of the cubicles
and when a man came out, holding a
handkerchief over a cut hand, he took
him to the manager’s office.

While he was being questioned the
body of a small boy was found in the
cubicle. His throat had been cut, his face
slashed. The man, who gave his name as
Thomas Lynn Johnston and said he was
24, an embalmer, and lived in a room
over an undertaking parlor, confessed
the crime. “I knifed him, but I didn’t
mean to kill him,” he said. A search of
his room revealed four hunting knives,

four pocket knives and a switch-blade.

knife.

In Sacramento County superior court
Johnston was convicted of first-degree
murder without recommendation for
mercy. He was sentenced to be executed
in the San Quentin gas chamber on
June 28th, 1957. However, a bill is
pending in the state legislature which
would establish a 2-year moratorium on
the death penalty in California. If the
bill passes and is signed by the Gover-
nor, Johnston’s sentence probably would
be commuted to life with minimum pos-
sibility of parole after 20 years served.

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boat when he became a pirate. But a nagging wife had filled him with such resent-
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September 13th
ar C. Flick Jr.
der charge. At
> jury was in-
nd Donald War-
ee murder, sec-
r manslaughter.
zuilty of second-
1 February 2nd,
| to 30 years to

NG SLAYER

+, 1957)

iis Ruth, 25,
iu ; lived in

1t .. Plainfield,
worked nights as
Brunswick plant.
left for work on
7th, 1957, Ruth
nt and then went
‘y some refuse to
yody was found
r. She had been

18, recently dis-
ted States Navy,
seen around the
was reported to
date and to have
1 by the young
Mount confessed
he saw Ruth go
i her and again
Vhen she refused,
. he stabbed her.

iSbed 13 times

Mount went to trial in Elizabeth, New
Jersey, in February, 1958. The case went
to the jury on February 4th. After two
hours’ deliberation the jury returned a
verdict of guilty of first-degree murder,
with no recommendation for mercy. The
verdict carried a mandatory sentence of
death in the electric chair.

KIDNAPED BY A TWO-TIME KILLER

(MD December, 1956)

Efforts of his attorneys to save him
from execution are unwelcome to 22-
year-old Barton Kay Kirkham, con-
victed murderer. He wants the State of
Utah to “quit stalling,” and hang him.
“In death I’ll be free,” he said. “And
that day can’t come a bit too soon to
suit me.”

Shortly before midnight on August
llth, 1956, Kirkham invaded a Salt
Lake City market and demanded the
day’s receipts from David Frame, 50,
who was in charge. Angered at find-
ing only $50 in the cash register, he
shot to death David Frame and Mrs.

4 Ruth Webster, 37, who lived with her
{ family in rooms behind the market.

Kirkham then fled in his car.. When
the car broke down, he invaded the
home of Mrs. Bonnie Christean and
commandeered her car, taking Mrs.
Christean’s teenage son and daughter
along with him as hostages. South of
Salt Lake City he put the youth out of
the car. The plucky 17-year-old girl
urged Kirkham to give himself up when
he told her he had killed two people
that night, and finally succeeded in
talking him into surrendering to police
at Vivian Park.

Returned to Salt Lake City, he was
tried and found guilty of first-degree
murder in the slaying of David Frame
and Mrs. Webster, and was sentenced to
die. Despite the efforts of his attorneys,
Kirkham feels that his execution is cer-
tain and he resents the delays, prefer-
‘ring an immediate execution date.

! “J don’t want life imprisonment,” he
‘said. “But I’d be no better outside. I
‘ couldn’t be sure I wouldn’t do it again.”

=

Ruth Webster, mother of four

STRANGLED AFTER DEATH

(MD February, 1958)

In Saltville, Virginia, on October 6th,
1957, the body of Bill Tolbert, 68, was
found in a patch of woods, an old belt
wound tightly around his neck. His
hands were scratched, his face and scalp

battered. It looked as if the elderly
man had been beaten to death, then
strangled as an afterthought. Appar-
ently he also had been robbed.

Glenn Frye, a 38-year-old farmer
who had last been seen with Tolbert was
questioned. It was learned that there
had been an argument between Tolbert
and Frye over an old debt. But there
seemed no evidence to connect Frye
with the slaying, until a persistent offi-
cer reconstructed from splintered pieces
of wood a 3-foot club of poplar. Splinters
of poplar had been found in Frye’s hat.

Frye then confessed the killing, as-
serting that he had struck Tolbert in
self-defense. Charged with first-de-
gree murder, Glenn Frye went on trial
in November in Smyth County circuit
court. He was found guilty and sen-
tenced to life imprisonment in the peni-
tentiary at Richmond, Virginia.

“THE LOOK IN HER EYES GOT ME"

(MD September, 1957)

In the West Virginia Penitentiary at
Moundsville convicted murderer Elmer
David Bruner awaits the outcome of an
appeal in his case. Bruner was found
guilty of first-degree murder without
recommendation for mercy on June
29th, 1957, for May 27th slaying of
Mrs. Ruby Miller, wife of a Huntington,
West Virginia, contractor. The verdict
made a death sentence mandatory.

Mrs. Miller’s body was found on her
bed, her head crushed with savage
blows from a claw hammer which lay
beneath the bed. Her eyes were
taped. The house had been ransacked,
a jewel box was missing and a shotgun
had been removed from the gun case.

Police questioned Elmer David Brun-
er, 40, arrested that day as a burglary
suspect. On May 22nd Bruner had
looted the estate of a neighbor of the
Millers, where he was temporarily em-
ployed to do some landscape work, and
had attacked the owner’s wife. A search
of his luggage revealed the jewel case.

Bruner finally confessed that Mrs.
Miller had surprised him ransacking the
house. She seized a gun from the case,
he claimed, and threatened him with it
and he struck her in self-defense with
“something he picked up.” He had taped
her eyes after she was dead, he con-
fessed. “I couldn’t stand that awful
look in her eyes.”

Bruner, whose record showed a long
list of convictions for burglary and
housebreaking, was charged with first-
degree murder and two counts of bur-
glary. On Saturday, June 29th, an
all-male jury, after four hours of de-
liberation, returned a verdict of guilty

_of first-degree murder, without recom-

mendation for mercy. On March 12th
1958, Bruner was given a 6-months stay
of execution and his appeal will be con-
tinued till September, 1958.

THE WRONG BULLET FOR A
DEAD MAN

(MD October, 1957)

At 1 a.m. on July 18th, 1957, police
headquarters in Denver, Colorado, got
a call from a frightened woman that
three men were trying to break into her
home. When officers reached the scene
they found a man lying on the side-
walk; another man, gun in hand, stood
across the street. He gave his gun to
an officer, and he said, ‘“‘They were
trying to break into my house, threat-
ening my wife. I warned them I'd
shoot, but they broke down the door.
Then I shot.”

An autopsy and _ ballistics tests
proved two things wrong with the
young husband’s statements. The fatal
bullet was not from his gun, and the
victim, identified as Dionicio Sanchez
Jr., 24, a young art student was not one
of the three ruffians who had tried to
break into the house.

Sanchez and a friend had been in a
tavern when a group of toughs began
to annoy them. When they left the
tavern a fight ensued in the course of
which young Sanchez was shot at close
range with a .22 pistol of foreign manu-
facture. The gun was identified as be-
longing to Louis Vallegos Jr., 25, known
as a dangerous troublemaker and on
June 20th eight witnesses identified
him as the man who had shot Sanchez.
Until he was safely in jail they had
been afraid to testify against him.

Murder charges were filed against
Vallegos and he was transferred to the
ward for the criminal insane at the
Colorado State Hospital for mental ex-
amination.

On Monday night, September 2nd,
five inmates of the ward, using a bro-
ken table leg as a weapon, knocked
down two attendants, stole their keys
and let themselves out of the building.
They escaped in a stolen car. One of
the five was Louis Vallegos, the only
one of the fugitives held on a murder
charge. Five weeks after the escape
Louis Vallegos was recaptured, given
a psychiatric test and held for trial
before Judge Edward Pringle.

"WHERE DID YOU HIDE
THE OTHER BODY?"

(MD February, 1957)

In Wellington, Carbon County, Utah,
the Mayfields and the Daileys were
neighbors. On the morning of Septem-
ber 24th, 1956, after their husbands had
gone to work, Mrs. Sammie Dailey, 36,
dropped in for a second cup of coffee
with Mrs. Mary Mayfield, who was 63.
Their visit was interrupted by violent
death. The bodies of both women were
found shot through the head.

The murder weapons, a .22 and a .32
caliber revolver, were traced to Steve
Denos, 62, a candy salesman, and on
September 28th two first-degree mur-
der charges were filed against him in
city court. Denos refused either to ad-
mit or to deny the murders.

Tried for the murder of Mrs. Dailey,
Denos, on February 11th, 1957, was
found guilty of first-degree murder, and
sentenced to life imprisonment.

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drunk. Geralc . tches; that he owned no ;
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nine P.M., and stated tha ‘ knife’. “I went all to pieces” an
“ Irunk”, Aileen Burdette, wife a kn : hi; til the next day”.
ea "A 1 Br rdette, saw her husband “didn’t know anything un
of Harry Atlee Burdette, sz .

sometime during the day of July 30 at the Burdette testified in ved 4 eae
“Club building”, and states that “He was  ctated that he went : t : a ee see
awful drunk. I tried to get him " ° teak oo ss paisget Gin ‘ent
: ; ’t do it? u hat he and Fred Pa
sa re eee ee ‘O'Brien fall ate nine-thirty that evening; that they
od eee get ‘- and start striking at then went to a bootleg joint on RephoWe
Bedeite : that “Burdette hit O’Brien and treet and purchased a a . baling
he didn’t get up anymore” and that she that they then went to the eri ee
thought the parties fighting were drunk. gen and stayed there aroun ee Fone
Edith Harrell came down Summers Street that he remembers going to Ae oe
rsa <2 ne the fight started, but the garden and being back on Summers Street,
aie ioe ee by her which could pear the Skyline Cab Company office, va
ii ; answer: “Q. 1 ainter ‘walked out to
epics pig Papen Bur- 25 some argument started. Painter went
you see + eet. and the O'Brien boy across the street and he hollered for me
Ci iat? k I didn’t see no trouble ang I went over there. This boy was try-
cet in tit Haeeg was standing on the ing to cut us both with a eee cay aj
nse H ame across and started to backed off clear into that parking ol
pier k slccana rset said, ‘I will strike that “He backed us up in the parking lot
sy tout oe draws a knife on me.’” and I scen I couldn’t get away from him
a E é

I P S ifi in cha anc I vad to fight him. Jon t
ul i b half f d 1 I C remen ber
“red on ainter test ed oO

y i 7 tl Cc
B tT it tte He statec la I was it it i him ie that he was aware of 1
at he yas thi t hi ting ’ ; a ;
care of. 1g th ut e a known Bu det e <I i and } « ¢ 1 kni was the fir st thing
years ag vr “ € Tr t k fe 1 1 tha the fe Va

€ . y we cS © d that afte
for rbout € it ye irs; th at on the da th ut seemed to scare mec so an }
b T

6 > fight was over he “was in a sort of
ae eee ar diet phi nce pate He further Anicleg to the men
eee Gan ees at the Club until that the knife taken from 1 inter s pocket
ely, ve ad iv pdeudiers that they was owned by him ; oe ont ete
ee end will he witness Russell the knife in fighting O'! rien; and
nel ag anh tees Waahindion he and Painter drank four pints of pei
Se ce a Aah tencuite? how that day and a bottle of beer about ta
eat ae ee but docs remem- half hour while at the pool room. en
ong they ‘

STATE v. BURDETTE W. Va. 79
Cite as 63 S.E.2d 69

asked if he was drunk he replied: “Yes, when the Policemen came they found his
sir, I was drunk, but when I saw the boy knife. I know Fred Painter didn’t hit him
with the knife it sobered me up. When he but while I was fighting with him some
backed me against the parking lot I had to other men started to interfere and I think
fight him as well as I could. I went as far Fred Painter kept them from taking any
as I could on the parking lot and when I Part in it. I hit this man several times
was fighting the boy I blanked out and the before I knocked him downs: “WA 8 = cA
next thing that happened I was against far as I know I never saw this man before
this building and then the ‘law’ came.” : Fe Se

A statement made by Burdette after his “I have read the above statement con-
arrest and before “breakfast time the next sisting of three Pages written in pencil on
morning”, witnessed by officers S. N. Ruth- yellow paper, and swear it is true and
erford and D, E, Williams, was admitted correct, * * *.” Jt will be noted that
as evidence. Burdette admits signing the certain parts of this statement do not ac-
Statement, but says of the statement that cord with the statements made by Burdette
“there is a lot of things that is not right”. on the witness stand or with certain other
In so far as appears to us to be material, evidence offered in his behalf.
the statement reads: “I, Harry Atlee Bur-

dette, make the following voluntarily that the jury and the trial court were justi-
signed statement * * *, No threats or fi

: ed in believing that Burdette and Painter
Promises have been made to me and I were the aggressors throughout the fight;
know this statement can be used as evi- that the assault made by them upon O’Brien
dence in a court of law.

Was vicious, brutal and continued over a
“TI left home Friday July the 29th around considerable period of time; that after

6 o’clock in the afternoon. I came to O’Brien had been knocked to the sidewalk
Charleston and stayed down in Charleston the last time by Burdette, both Burdette
Friday night. I got up about noon July and Painter continued to kick O'Brien about
30th, 1949. I loafed and played pool at the head, with such force as to probably
the Club pool room on Summers Street produce death, one kicking while the other,

until near midnight. While I was playing by the use of the knife, prevented inter-

pool I drank a few bottles of beer. ference from bystanders who attempted
x ok x é

to stop the fight; that both Burdette and
Painter were aware of their actions, were
capable of forming intentions, and of pre-
meditation, and that O’Brien died as a re-
sult of the continued and Tepeated blows
administered him by Burdette and Painter.

[1] We think it clear from the evidence

“Fred Painter drank about the same
amount of beer that I did * * * Fred
Painter and I left the Club Pool Room
together and started home, walking north
on Summers St. * * * J bought a
Daily Mail and Charleston Gazette paper, There can be little doubt that both Bur-
after we had crossed Lee Street, walking dette and Painter had, on the day of the
north on eastern side of Summers St. homicide, drunk intoxicating liquors to
About the midway between Washington some extent, but it seems clear also, and at
and Lee Sts. a man standing on opposite least a jury was warranted in finding, that
side of Summers Street yelled at me and at the time of the homicide Burdette and
wanted a paper. I told him I didn’t have Painter were capable of acting maliciously
any papers to sell; that I had bought the and with premeditation. If the evidence
Papers to take home, and he started to of the State is believed, which the jury
raise hell and started to calling me names, had the right to do, the joint actions of
Fred Painter and I walked across the Burdette and Painter were timely coor-
Street to where the man was Standing, and _ dinated; they recognized Persons with
the man pulled out a knife and started cut- whom they were acquainted, talked intelli-
ting at me. I dodged him and just kept gently, had no difficulty in staying on their
hitting him. I didn’t let up. I don’t know feet, and handled themselves throughout
what happened to his knife but I know the fight without any noticeable staggering,

Se atta

<M aie


ry
at ET RNS Tears

STATE v. BURDETTE W. Va. 83
Cite as 63 S.E.2d 69

intoxicated that he did not know he was
doing wrong nor did not know what the th
consequence of his act might be.”

82 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

Under the evidence in the instant case
€ question whether Burdette was intoxi-
cated to such a degree as to be incapable
of forming an intent to kill or of wilful

er cases to the effect that malice and pre-
meditation may be inferred are eee
Roush, supra; State v. Medley, 66 W.Va.

ion, used language very appropriate here.
“Tt was strongly contended, that chastise

“oe ’ Ms
A ment, and not death, of the deceased, was State’s Instruction No. 5

-murder.

SO W.
358: State v. Young, -
i ht may 216, 66 S.E, 358; aoe
i led. Malice aforcthoug ee eek temlke
Kath A epi intention to do great “— we o. I RT iss
"17. the Ve. ’ ee s . 4 ye
as to kill; and whether : ; ea ane
raphe Bet sg ae or the other, and death Va. 2, i ge Toe te
revealing sh law will not surrender its wake é gt Lae beget
Tas i icide is Commonwea ee , FS
rE a oo oe patch ey 117A. 794; ener ee ete.
can revic : ee vo ;

i ek Le most clearly that 172 Ky. pote ae LE oe
air hat t least was intended to nomme, at Ad Saenger
pe eae cae the deceased. Much seems clear, there ae ‘ the question of

: fee inst? ase
a aijanee re 4 Pepsi the circumstance, stances of the instant ¢
stress Was also 1a

alice was one for jury determination.

that the prisoner might mere ve Spake v. Saunders, 108 W.Va. 148, od oh
deadly weapons, which were at eo 519; State v. Hedrick, 99 W.Va. ’

he had designed any fatal injury * ing S.E. 295; State v. Young, supra.

deceased; and that, instead of emp . he : as fully and clearly in-
h he had only availed himself Of the “(14 The jury w ‘aititar tn. tendicd.
ites ich nature had furnished him socted as to the law re ating :
—— aye s moreover insisted, that premeditation and deliberation mec te)
pee s yeu ae found deciding the homi- 1:54 a homicide to ire = - Sele
elias Sites ir- v. Welch, pVa. OWN,
cide to be murder, when, aap = ein 7, syllabus, this Court
wagticans tia ee and death of the held: “The question whether a pene
my. a a immediately produced pomicide is murder in the first or os
Sh tigen of the violence ; hat degree is one of joe its bsiagir

d some time afterwards. The fists 4 jury has eigs in other cases,

ae Iced, be regarded generally aS 4 murder in the first degree, as 1 ‘ edict
may not, indcec , but they become most jhe court should not disturb the es
deadly weapon; ften repeated, long con- unless the finding of murder in the eg
deadly, by ngpapton to vital and delicate gree be plainly and manifestly contrary to
tinued, and coat of a defenccless, unre- or without sufficient evidence.

parts oh a “8 ground, And if to the Burdette complains particularly of the
oe — ve capable of producing, when action of the trial court in giving to
pea 2 strong man, you add all the jury State’s Instructions Nos. 4 and 9,
cea paiigarie injuries which the more hich read as follows:

powerful agency of stamping the “~s since pk
inflict, there migh
the ground may inflict,

i i jury that, if
ro 1 to infer the intention, not “The Court instructs the iar s
Tins vat ily harm, but even you believe from the evidence
merely to cause great bodily : y

“The Court instructs the jury that a per-
son who is intoxicated may yct be capable

of deliberation and premeditation; and if this Court has no right to disturb their
the jury believe from all the evidence in finding. The precise question involved
the case beyond a reasonable doubt that here was properly presented to the jury by
the defendant, Harry Atlee Burdette, act- the giving of Defendant’s Instruction No.
ing alone or in concert with Fred Clifford 30, which reads: “The Court instructs the
Painter, willfully, maliciously, deliberately jury that though they may believe from
and premeditatedly killed the deceased, Ed- the evidence in this case that the defendant
ward C. O’Brien, you should find him guilty Harry Burdette, killed the deceased with-
of murder in the first degree although he out any provocation and through reckless
was intoxicated at the time of the killing.” wickedness of heart, but at the time he

[15-17] Apparently the objection made did the act, his condition from intoxica-
to these instructions is that they interpose tO was such as to render him incapable
a defense of insanity where that defense of doing a willful, deliberate and PES
is not at issue and thus confused or misled meditated act they cannot find him guilty
the jury. We do not understand defendant of murder in the first degree.”

to contend that a person can not be guilty
of murder in the first degree even though

that person be intoxicated, if in fact the the jury State’s Instructions Nos. | ey ae 8
person be capable of wilful premeditation 6 and 7. Instruction No. 1 told the jury
and deliberation. The law seems clearly that one of five verdicts could be returned,
to be that only where the defendant is murder in the first degree, murder in the
intoxicated to such a degree as to be there- second degree, voluntary manslaughter,
by rendered incapable of forming an intent involuntary manslaughter, and not guilty,
to kill, or wilful premeditation and de- defined each, and informed the jury as to
liberation, will the degree of homicide be the punishment provided as to each of such
reduced from murder in the first degree, crimes. No. 2 informed the jury as to the
because of such intoxication. Applying presumption of an unlawful homicide being
this rule to the instant case, we can not murder in the second degree, the burden be-
see where the defendant could Possibly ing upon the State to show it was murder
have been prejudiced by the giving of these in the first degree, and the burden being
instructions. They appear most favorable upon the defendant to show it to be without

to him. It is conceivable that he could malice, and therefore only manslaughter,

have known that he was “doing wrong yet or that he acted lawfully. No, 3 simply

not have been able to form specific intent, informed the jury that the intention to

or to wilfully premeditate and deliberate.” kil] need not exist in the mind of the ac-

instructed by the court in relation thereto,

[18-21] Burdette also assigns as error

ute Without dwelling particularly peyond a reasaeatls, OEE ake. bape No. 4 was given in practically cused for any particular length of time
E- death itse ; and the degree of Burdette and Fred Painter, a i sacha the same fori in State v. Corey, 114 W.Va, Prior to the killing to constitute a wilful,
& upon the circumstances, ¢ he deceased or the defendant Harry Atlee urdette by 118, 171 S.E. 114, except as to the wording deliberate and premeditated killing. No. 6
3 the violence under which oF eee eribe himself, wilfully, maliciously, deliberately relating to the insanity involved in the dealt with the right of an aggressor or

suffered, it can not be regarde pe ding and premeditatedly killed the deceased, Corey case. In that case this Court held, assailant to rely upon the defense of sclf-

a than as excessive, cruel, greatly eae Edward O’Brien, you should find the re Point 3, syllabus: “‘A verdict of guilty in defense, and No. 7 informed the jury as to
4 the widest boundaries of ee 5° in fendant, Harry Atlee Burdette, guilty o a criminal case will not be reversed here the law governing the burden of proof -
& ment, outragcous in its nature, a it, and murder in the first degree, although he may because of error committed by the trial where self-defense is relicd upon as an ex-
e the manner as the Commerc “ had have been drinking intoxicating Haver court, unless that error is prejudicial to the cuse for the killing. Defendant's theory
& beyond all provocation to the o eB riety, before and at the time of the killing, un < accused.’ State v. Rush, 108 W.Va. 254, of sclf-defense was correctly stated to the
mt we may apply to it, with great i it ‘that you further believe from the evidence that 150 S.E. 740.” jury in instructions offered by him. No
‘ the saying per aes oh Ye oe Oth- at the time of the killing he was so grossly
2 barbarity will often :

ek ay a

premeditation and deliberation was a ques-
tion for the jury and, having been properly

the action of the trial court in giving to .


“<.

3

Pari i

%

*

eras 25 EE 4

=)
vr

76 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

i } were
Burdette did all the talking, and that Bur- stated: “As far as I could tell they

et tolc § ainter to keep his mouth shu no T t t t ar S
t d unk. and ha he did no
d te cr t t ’ arrest

i i of them. Jarrett Hunt, an employee
bye ae « aie Renee Phe are Skyline ae and whose duties were
ey has. on hes of the city “Loading the cabs and marking the drivers
a ig ey ie A months, ar- in and out” and who was pay ..
fe ¥ ae at : aay after the fight, quainted with Burdette, eaiert ou
piesa at Pri ter standing sixteen Brien, saw O’Brien about nine-t ge : ;
ee we se sees —- the body, and tes- and testified that ares ee isa:
pedo pate 2 i ore : at time; that he saw Burc
rhc aoe a = par aite, rman : chert time before twelve o'clock
ee tee od You had and that they were then “pretty well load-
sit, ae bg a ee kee and that ed”, but that they knew ree bp: wae a:
i A i = <- tried to get them to get into the
Spe tag: re beers . prevent ped from being <p be
ae gawd and was lying about said, “Jarrett, we like you but no ‘ a
be ag ine a t from the body of much. You tend to your business an we
sas age ba ther knife from will tend to ours.” He also testified tha
ON Te cee oe Painter, Burdette and Painted walked to the corner
i es ties: We whether Bur- of Lee and Summers Streets and that
las aang ue a eee drinking, he an- “did not require any assistance oad rib

php igs Ra tes on ion is Painter was them from falling or staggering. ite
eae t in. as staggering, Macie Ingraham heard Burdette say t at
ale on ee “ia Tt waar too much “he could whip anybody without a ag
pnaatd "pein eyes were glassy A brother of O'Brien testified oe :
saa 3-8 oe 1 I just think he’ roomed with him at his mother’s ee
sel tes ‘od eed Leoaied Cunning- that he was familiar with the persona ‘a
nee. any ity naliceinnd ‘astthied that longings of Edward O'rits and eae €
meena = tak, tne about fifteen knew that Edward O Brien did not ca 7
ee ae eee Burdette and Painter a knife or ever have one in his possession,
cf awa ae homicide; that Bur- The State introduced a photograph show-
peg earns id hin A dhap- jng the residence mentioned above and the
dette knew him and told him what had hap ing re s ee Ee het
1: that Burdette told Painter to be immediate surrounding ; eee
Sok i t necessary to help tain evidence as to a newspaper pic ed uy
Burd sf va ey paral wagon. Jesse at the scene of the homicide was te
alas a8 in it i Ce i luced in evidence, over the ob-
Workman, a sergeant in the city police de to be introdu oat re
tte and Paint- 1 of the defendant. K. V.
peer ante et ‘Soak ie knew ee Send and a member of the Depart-
ar boknes = oie and stated that Bur- ment of Public Safety of the State, from an
2 soca be ihe what he was talking examination of the shoes mere arte
Nout - in i Pai t the time
: we illic a captain in the by Burdette and Painter a ‘ a
UO on ets Dek ae ee present odin and ae a oe ee ai
reat 3 ai . r ermined that there were huma
tig SO ee ay heres ce on the shoes of both satgee =
el aoe ne tte argued with the pat- Painter, and on the trousers oe shir ir
Restified ee eee P y some money and Painter. These articles of epee w :
ee ee k where he exhibited to the jury; also the shocs, trous
uiks Rekdats asm Charles ers and undershirt worn by O'Brien at the
rae a cal portictaph aa pas time of his death were exhibited to the
ightner, a an, ihe
a Painter Soe . ie hire ake Freeman L. Johnson examined O’-
a oe? a : io i ae aihad Brien after he was removed to the ae
—e te prem answer to a question, found that he was then dead, and that he
wit ain ’

STATE v. BURDETTE W. Va. T7
Cite as 63 S.E.2d 69

was bleeding from the nose and both ears, and he fell on the sidewalk. The boy laid
and “we felt he had a fractured skull, but there just a second and he started to get
that was not ascertained definitely at that back and Harry swung at him some pretty
time.” hard blows and Harry hit him some more
J. G. Bane, who embalmed the body of and the boy fell again. When he fell this
O'Brien, found “bruises about the face, time his head hit the sidewalk.”
neck and legs” of O’Brien. Dr. Benjamin Carl Seavers, an acquaintance of Bur-
Newman, a pathologist, examined the body dette and Painter, appeared at the scene
of O’Brien and “found two lacerations of after O’Brien had been knocked to the
the skull over the right eyebrow. There sidewalk the last time, and testified that
were abrasions of the skull, nose, skin and he heard one of the officers ask Burdette
chest. That was just superficial. When I “Why didn’t you run so I could shoot
examined the head I found that there were you?”, to which Burdette answered that
hemorrhages on both sides of the head. “he (Burdette was a fool but he wasn’t
They were over his car to what we call the that big a fool.” This witness saw the
temporal region. There were hemorrhages officer pick up the knife and stated that
of the muscle under the skin of the fore- it was five or six feet from the body of
head. When I examined O’Brien I found O’Brien, and also heard Burdette make a
a mass of hemorrhage on the left side Statement to one of the officers that “any-
which I call a left subdural hemorrhage; one who drew a knife on him would be
that is, over the coverings of the brain, ex- sorry”. He identified the knife found at
tending to the very end, and adjacent there the scene as one he had seen at the home
was a contusion which was bruised and of Burdette about June 15, 1949. He also
hemorrhagic. * * *, There wasa frac- stated that both Burdette and Painter were
ture of the base of the skull on the right drunk. Russell Guy Harrison testified that
side. An examination of the remainder of he had known Burdette and Painter for
the body showed an edema but there were several years, was with them the evening
no other fractures I could see. * *. of the homicide from about seven P.M.
The cause of the death was the injury to until about ten P.M. He testified that he
the brain and the severe hemorrhage—the first got with Burdette and Painter at the
subdural hemorrhage—and the swelling of Club Pool Room and stayed there until
the brain,” This witness further testified about nine P.M. That the three of them
that, in his opinion, “It is impossible to then went to “a beer joint” on the lower end
explain all those lesions or injuries with of Washington Street, near the bridge;
one blow. The only way I could say is- that they stayed there drinking beer until
that it was from several blows.”; that about ten P.M.; that they then went over
the injury was a “dull type of injury. The and “bought a pint of whiskey”, then
trauma was dull.”, and that he believed “went from one beer joint to another beer
“the basal skull fracture was additional joint”; that the three of them got in the
to the hemorrhage.” car of the witness and, after driving
The following witnesses testified on be- around for some time, Burdette and Paint-
half of the defendant Burdette. Oliver er got out of the car near the Skyline
Parkins was walking along the westerly Cab stand, on Summers Street. He further
side of Summers Street, near the scene of testified that when Burdette and Painter got
the fight, and saw O’Brien “step on the out of his car on Summers Street “they
walk and have a knife in his hand. He couldn’t hardly get out of it—they was so
said something in a swearing manner, I drunk.” This witness further stated that
don’t know what it was, to Harry Bur- on that evening he took Burdette’s knife
dette and Painter on the parking lot. Pain- from Painter, that he asked Burdette to
ter was reaching in his ‘brecches’ pocket Jet him keep the knife, and that Burdette
for a knife. I heard him ask Harry for said “No, he would keep it”,
a knife and Harry said he didn’t have one. Clyde Legg testified that he saw Bur-
I saw him strike the man a couple of times dette and Painter at the “beer joint on


De are Silane oekak G 3 Si

80 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

about he ead of a grand jur or can not be heard for the
t h .

i indi “nt invali-
: of having an indictment
The actions of the trial court complained ee deaté y. Austin .03W.Va. 704, 117
of are included in the following proposi- —“~* sy

S.E. 607; State v. Driver, 88 W.Va. 479,
tions: In overruling the demurrer to the 107 SE. 189, 15 ALR. 917. Of courie
indictment and in denying the motion to i, mile Woah Hick adel. where te of
quash the indictment; in refusing to rae corruption is charged. State v. Carter,
Burdette’s motion for a ee a W.Va. 709, 39 S.E. 611.
i la aus ;
i a eae gies: Ag refusing to [5,6] There is no pen in eres
r 2 { €
i rdict and to grant Burdette tion of the defendant tha a '
5 sn bt because a supported by Lene should i teen ere rget
law and the evidence; in giving Schone court. The page eh aca ie
instructions on behalf of the ai ee pica ae Lappe aso
refusing to give certain instruc ions: whom : : oe ee
by Burdette; in permitting the jury to pe issued, but no mee ae
consi vada shee ceaeern ie a Gin imdin showing that
a i earpiece ene he was a pi testimony of the witness was material,
ee ae . tillin ; and in that the that it was not merely cumulative, or that
oes a Giese Soe Burdette consti- jt would probably be noes ee
; : j ¢ ate Pc s na
ited crucl and unusual punishment. rege ae ens oA et ae
[2-4] We think the indictment is 7 ciicntntine: Cruretg of contimuances by
sufficient form. Nothing is pointed out nd trial courts are matters within t ‘ vo
defendants as to why the demurrer waa discretion: of such courts’ Here that a
to should have been sustained, or why the aon wie otk abaied bee State v. 1 -
indictment should have been quashed, ex: cas, 129 W.Va. 324, 40 S.E.2d a7; ae
cept it is shown that one of the grand jur- vn cotten, 101 W.Va. 492, 153 SE.
ors was not a resident of Kanawha County. 106: State v. Bridgeman, 88 W.Va. :
Code, 62-9-3, provides that an indictment 106 SE. 708.
for murder shall be sufficient if it alleges, ae coon
8 ee ee ees ane rate ich } i By a af ee discovered evidence
— a ' ies ice 46 un- aS ee primarily upon an affidavit =
wilfully, ma er eh and murder one Frank A. Bium, Jicsclt appears from this
lawfully did ts Se the peace and dignity affidavit that Blum is a resident of yee:
of the ean indictment a sylvania ; pre tagte te ne eth sat
Eni. See Mr MteMillion, 108 W. a: on testify to the effect that
"732. “between five and cight men were engaged

i ‘ at they seemed to be
i f jur- in the fight” and that
alifications of grand jur- in th hah ea sar = aed
One of the pone ves 2-2, is that they considerably paaarnaee fae =
n Code, 52-2-2, i sa ree
eh Whee Rien Sha fide citizens of the O’Brien ged pes 2 Leena gia ae
shall hz we a2 man
? > year im- cour hea _
ate < county for at least one ye ; . seg Ea Aeees
er din nena the preparation of the pk fee Se a aa ae
eg j ctte struck q
ist’ j repared by the jury ¢ eae
a ae eer 52 2-12, provides ing him to the ite pan ga oe
ate ; : - teelte en ran Z
peers: ssisnbit- We indictment shall and that gad acne ons a
that “No prese bated on account of the him; that pa cf et fe as
be quashed or a “ lification of any one O'Brien twice, an : at | es toes
a ai 5 so who found “no woman * * S ‘ up OR Ora
2 u Caps é
ete pata a question head and held it in her lap

is sufficient.
Va. 1, 138 S.E. 732.

incompetency
or more of the gr
the same.” Under

STATE v. BURDETTE W. Va. 81
Cite as 63 S.E.2d 69

This evidence being merely contradictory person on the head with the bare fists
and probably not sufficient to produce a by a person of small
different result at a new trial, it was not strength, although de
¢crror for the trial court to refuse to grant assault is so vicious,
anew trial based thereon, It is very barbaric,
significant that Blum did testify in the case that malice éan be implied.”

of State v. Painter, supra, and that the There can be no doubt here that the jury
verdict in that case was guilty of murder was justified in concluding that the killing

in the first degree without any recommen- . of O’Brien was done with malice, delibera-
dation. In State v. Beckner, 118 W.Va. tion and premeditation. The assault was
430, 190 S.E. 693, Point 1 of the syllabus, vicious, brutal and continued by both Bur-
this Court held: “On a motion for a new dette and Painter, even after O’Brien was
trial on the ground of after-discovered evi- helpless, as disclosed by the evidence of
dence, any showing in support thereof many witnesses, some of whom testified on
“Must disclose, not only diligence to dis- behalf of the defendant, Burdette. The
cover such evidence before trial, but that assault was not merely with the fists.
the same is calculated to produce, and After O’Brien was knocked down and un-
would support, a different verdict from able to defend himself, Burdette said he
that returned by the jury.” would “* * * stomp his God damn
See State v. Porter, 98 W.Va. 390, 127 brains out”, and both Burdette and Painter

S.E. 386; Edwards v. Keifer, 92 W.Va, did Tepcatedly stomp him, and after the
650, 115 S.E. 838; and Sisler v. Shaffer, police arrived Burdette said: “The God
43 W.Va. 769, 28 S.E. 721. damned son-of-a-bitch got what was com-

[9-13] Th a a ee ing to him.” In such circumstances the
€ positior e defer

d : ; ant defendant must be presumed to have in-
as to the insufficiency of the evidence to

° : tended the immediate, direct and necessary
support the verdict of murder in the first consequences of his acts. State vy. Roush,
degree is based primarily upon the conten- supra. In State v. Farley, 125 W.Va. 266,
tion that Burdette was so intoxicated that 23 S.E.2d 616, Point 1, syllabus, this Court
he was incapable of deliberation and Pre- held: “Deliberation and premeditation are
meditation immediately before or during elements of the offense of murder in the
the time of the fight. The duty of proving first degree, which may or may not be es-
deliberation and premeditation, of course, tablished by inference according to the cir-
's upon the State. State v. Williams, 98 cumstances of each particular case.”
W.Va. 458, 127 S.E. 320. Malice or pre- ;

figs : In McWhirt’s Case, 3 Grat. 594. 595 44
meditation need not exist for any great Va. 594, 595, 46 Am.Dee. 196 h ; ;
length of time before the homicide. It was =3 ee rl Carters » the defendant
licid lex Skin Porter, 98 W.Va. 390, 127. Was indicted, with others, for the murder of
S.E. 386, Point 9, syllabus, that: “It is ee nase apused the son of McWhirt.
well settled that, if intent to take life is ne salting was by “a use only of fists and
executed after deliberation and premcedi- fect”, and it het. pomtegsad by the defend-
tation, though but for a moment or an in- Ut that no intent to kill was gwen; beet
stant, the crime is murder in the first de- that the nis alone of the attack upon Martin
ance e was chastisement for the abuse of the son.
The Court held that the fact “that chastise-
ment, and not killing, was intended, will not
reduce a homicide to manslaughter, where

i the manifest design was to do great bodily
tality and violence that malice and pre- harm”, and that the fact that the “killing

meditation will be implied. In State y. was produced by the use only of the fists
Roush, 95 W.Va. 132, 120 S.E. 304, Point and feet does not reduce the offense below
6, syllabus, this Court held: the rank of murder, when such use was

“A malicious intent to kill cannot be pre- excessive, crucl and outrageous in nature,

sumed from the striking of a full-grown and continuance.” The Court, in the Cpin-
63 S.B.2d—6

stature and mediocre
ath results, unless the
continued, deadly, and
and under such circumstances,

Ordinarily malice can not be inferred
from blows with the fist, but such an as-
sault may be accompanied with such bru-


ATE on

T would like to ask you to search your fides for two other
executions from our state. If you could tell me the dates ef
+re executions I would be eble to get more information from the “4

a4*

soit

newspapers at Morgantewn. The names were Willie Tress, and

“xirby Reed (?or Reed Kirby). They were executed in the 1950's

nt “Joundsville and that is all I know. Could you send me the
Gates ef these if you have them? If you do not, let me know and
I'll send the particulars to you as soon as I get theme

Also you mention in your letter that you collect backgrounds
on the persons executed. De you have any background on Wilfred
Davis, executed June 5, 1903? I already know a good bit about
the crime, but any information you could furnish on Davis himself

(origin, parentage, occupaticn, criminal history,
quite helpful to me.

etc) would be

Finally, there were seme mentions of lynching in one of your
articles that you sent. There were several of these in this and
other counties over the last century. If youre collecting these,

I have some particulars.

~ ee

f ~


CHAMBERS, James, black, hanged WVA SP (Randolph) WARAUX FOZXARGH 3-30-1915.

PO Box 2933
Bikins WV
26241

1-4. ah
Dear Watt:

Recieved your letter of Dec 17. Thanks for the articles.
In regard to the informatio:s. you requested. Apparently your
source on the execution of William Helton on 4 Aug 1916 is
incorrect. The person executed from this county on that date
was one Claude Sutton, alias Bill Sutton. The crime for which
he paid the extreme penalty was the 30 Oct 1915 murder/robbery
of Dr. John J. Kennedy in Huttonsville district, this county.
Kennedy was found shot to death of a gunshot wound to the right
breast. See the enclosed execution certificate. At this time
I have'nt ang more details on this incident, as the old newspaper
microfilms are &0 miles away at the Colson Hall Archives in
Morgantown. These are available on inter-library loan, and if
need be you should have no trouble agquiring them.
Now, regarding James Chambers. Chambers went to his death
for the Jan 20, 1945 murder/rape ef an elderly seamstress Lucy
Ward, alse in Huttonsville district. It seems that Chambers was
a negro who had previously_been convicted ef murder and sentenced
Moundsvilie. His home address was Maben, Wyoming Co. Fer reasons
unknown to me, he'd been transferred to the prisen at Huttonsville,
and on the morning of the murder he checked in for furnace auty
at &:CO AM. Later that merning, he walked away from the prison,
crossed the Tyzgart Valley River, walked across a field, and hid
in the hay inside a barn on the Ward Farm in sight of the prisen.
Miss Ward, coming to the barn to do her milking, was ambushed by
the murderer, and her throat was slit from ear to ear with a
paring knife. The file on the case at the Randolph County court- :
house here contains some very vivid, and graphic photographs ef .
her bloody remains lying in the hay. Chambers then left the barn,
walked back to tne prison, changed his clothes, and went back to
work. Undetected. The coroner's report stated that Mrs. Ward had
been raped, a charge which Chambers denyed any part of. He did,
the next day, give a full confessien to the crime of murder to
authorities after being confronted with several bits of evidence
to the fact. The file at the courthouse gives very detailed dep-
ositions of the case.
I hope this information is helpful. I have some infcrnation
to tell you abcut another incident outside this county.
triple hanging I know of in the state of W. Va. Jar“, 19°
mafia types were dropred simultaneously at Mi@undsvilie. Richarc
Ferri, Nick Salamente, and Phillip Cennizaro were the names, They
were hanged for their part in an underworld war tiat tcok many lives
dn Clarksburg over the preesding year. Do you rave vhese? Have

“J

|

you found any other triple or me-e hangings in “V% Or


€ nn e -

The Allegheny F rontier

West Virginia Beginnings, 1730-1830

by Otes K. Rue

M Sumoquedioy] pesuey Seqtym Steqy *SNEWHTIO

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The University Press of Kentucky

Lexington: 1970

PUBLIC LIBRA


JOHN BURNS, hanged, Wheelire, West Virginia, on Sept. ), 1858.

"The Wheeling papers of Saturday (9-5) give a lengthy account of the execution, on the
previous day of John Burns for the murder of Mary Ann Montony, an abandoned woman,

on the night of May llth, There were nearly 10,000 persons present at the execution,
of whom one third were women, About 10 o'clock the prisoner's irons were taken off

and shortly afterwards he was dresséd in a pair of white pantaloons, a white shirt,

and lead colored linen frock coat, and a pair of patent leather slippers, The repe

was then placed around his neck and his arms pinioned at the elbows, Over the whole
was placed a very neat shroud, which was pinned up close inside the chin to conceal

the rope, He spoke a few moments to the Sheriff, during which time ke seemed much
affected, Mr, Perkins spoke to him and he shortly regained his composure, after which
he was removed from the jail to the omnibus, About 11:30, the comemned, supported

by Sheriff Irwin, Deputy Sights and Jailor Smith, appeared within the lines and
immediately ascended the scaffold, He was pale and haggard from recent loss of blood
and long confinement and seemed so weak as to be scarcely able to walk without
assistancee He bowed to some one in the crowd, in ascending the steps, and a faint
smile was perceptible upon his face, He was seated upon a chair, with his face to

the North, when Sheriff Irwin approached and inquired kindly if he had anything to

say to the people. 'I have nothing to say,' he replied in a voice scarcely audible

and somewhat tremulous, The unfortunate than wore a look not of grief nor of sorrow

but of a forced resignation to his fate. The noose was arranged about the neck of

the condemned and attached to the beam above, His face was turned towards the South,
and we saw his lips move as if in prayer. Before the people were aware of it, the bblt
was pulled up, the door fell, and John Burns, clothed in the habiliments of the graveg,
hung struggling in the agonies of death before an eager, discordant multitude of 10,000,
TU#MABnd turned away fromthe fearful scene, and an awful silence prevailed, The body
hung about ten minutes and when the attendant physicians approached to see if life was
extinct the knot slipped and the body fell heavily to the ground beneath the scaffold,
An examination then discovered the fact that the vital spark had departed, and the body
was given in charge of the undertakers, who plaeed it in a coffin and conveyed it by
hearse to the residence of the deaeased's father on Market St. At the residence of his
father, the phople crowded up and interfered with the passage of the coffin, The poor
old man was sitting upon a shed in front of the house and looking wildly about

him and seeming utterly consciousx of what had taken place, Suddenly he arose from
his seat and in opposition to the efforts of a woman to detain him, stumblingly
approached the edge of the shed and exclaimed: "People, go home, There is not room
rnough for you here and I would be much obliged to you if you would go along home,"

The crowd moved off in compliance with his requested, They dody was interred in the
village of Martinsville, on Sunday, by the side of his mother,"

RICHMOND ENQUIRER, Richmond, Vaey 9-7-1858

"The case of Oscar Myers, charged with the murder of Mary Ann Montony, on May 1h, 1856,
came up for trial on Oct, 18 at Wheeling in theCircuib Court. Myers is rather below
the medium height and is about 19 years of age, He has small, ouick, restless grey
eyes, light hair and is rather spare than otherwise, He bears a most striking and
remarkable resemblance in feature to John Burns, recently hung for the same murder,

The Wheeling INTELLIGENCER says: 'The jury, after an absence of about 15 minutes,
returned a verdict of guilty of murder in the lst degree, Judge Thompson proceeded

to address the prisoner at some length and wound up with pronouncing a sentence of
WOUMBAME 15 years at hard labor at thepenitentiary. During the delivery of the
sentence, Myers leaned forward and listened attentively, occasionally glancing fure
tively around and chewing and spitting vigorously all of the time. .,." ENQUIRER 10-23-1858,

"ARRESI FOR MURDER=-John Burns has been arrested in Wheeling, Va., for the mrder of Mary

Ann HOD Gey» a lb woman, who incurred his vengeance by testifying in court against
BERRERMBRER He took her up to a cliff in the neighborhood of

» & ERA 2 me a ,
the city and thake peut her to death with an iron bar, The TIMES states that after

the murder and before the Cosme discovered he took a Epiend up to the spot and vauntingly
told him of the deed." ENQUIRER, Richmond, Vae, 5=22=185


ag

police were looking for that par-
ticular car until he arrived at his
home and read the evening paper.

Lieut. Taylor immediately relayed
this information to the police cruis-
ers prowling the highways in the
hunt for the missing car. Troopers
Ballengee and Seal, who were pa-
trolling Highway 60, received the
alarm over their two-way radio and
proceeded toward that point. A
half-hour later, they found the
Packard abandoned within a half-
mile of the Kanawha View Hotel.
All doors were closed and the win-
dows were up. They looked through
the side windows and found the
car empty.

Ballengee opened the right front
door and leaned inside. He pulled
back quickly, snorting to clear his
nostrils of the fetid stench that
struck him. Seal peered over his
shoulder. Blood lay thick on the
floor, spotted the ceiling and stain-
ed the upholstery of the front seat.
It was Hill's car all right.

Careful not to mar any finger-
prints, Ballengee examined the car
thoroughly. He found that the
switch was on and the car in low
gear.

“Out of gas,” he said to his com-
panion. “The men probably walked
from here.”

“I wonder where they could have
gone without being seen,” Seal said
in puzzlement.

Ballengee shrugged his shoulders.
“I’m sure I don’t know,” he replied,
“unless they stopped at the hotel
for the night. Let’s give it a try.”

Seal shook his head. “I doubt if
they'd risk the chance of being
recognized,” he said. “Their de-
scription was broad®ast and ap-
peared in the newspapers.”

“Well, maybe someone at the
-hotel saw them walking by, after
they ran out of gas,” Ballengee re-
turned. “It won't hurt to ask.”

eee moments later, the po-
lice cruiser pulled up before the
hotel. The troopers located the
manager and asked him if he had
seen two men walking past on the
previous evening. Ballengee de-
scribed the men.

“Those very men,” the manager
said, “came in here last night and
asked for a room. The tall, dark-
haired fellow did most of the talk-
ing. When I asked him how he got
blood on his shirt and pants, he
told me their car had turned over
on the road.” ;

For the first time, Ballengee now
received a good description of the
second man. The manager said he
was young — about twenty — less
than five feet ten inches tall,
weighing about 135 pounds and
having a ruddy face and brown
hair.

“They left the hotel a little after
six o'clock this morning,” the ho-
tel -‘man said. “The tall fellow went
across the road to the store. Pret-
ty soon he came out and they head-
ed west along the road.”

Ballengee returned to the police
car and informed the Charleston
Post that Hill’s car had been found
and that the wanted men were
afoot heading west on Route 60.
The trooper was anxious to inter-
view the store owner. but there was
a pressing matter of more import-
ance before him and he reentered
the hotel.

“Which room did these men oc-
cupy?” he asked the manager.

The manager motioned them to
follow, walked to the elevator and

took the troopers to the third floor.

“This room,” he said, unlocking
a door. “The room was cleaned up
immediately after they left but no
one has rented it since.”

Ballengee’s hopefulness vanished.
He realized that. a thorough clean-
ing might have destroyed valuable
clues.

Then he saw the waste-basket
standing by the dresser. In the bot-
tom were hundreds of fragments of

.torn paper.

“Did those men leave this stuff?”
the trooper asked hopefully.

“I don’t know,” the manager said.
“Those baskets are supposed to be
emptied every day.”

Ballangee realized that it would
require hours of tedious work to
put the fragments together. He de-
cided to send them to the barracks
and leave the job to the. men there.
He placed his handkerchief on the
floor and tip-ended the basket. As-
sured that every last scrap of pa-
per was in. the handkerchief, he
tied it securely and dispatched it
to Charleston with Trooper Seal.
Then he left the hotel and hur-
ried to the store across the road.

'The owner listened attentively to
Ballengee’s outline ot the case and
then said:

“T knew that fellow was up to no
good. He asked me if there were
many trucks going west over the
highway. And he bought a loaf of
bread, some cold meats and canned
stuff.”

“What time was it when he left
here?”

“Six-thirty. If he’s one of the
men you want, you'd better get go-
ing. He and his pal have about
three hours’ jump on you.”

Ballengee realized the truth of
this statement. Facilities for flight
to any part of the country were
available to the pair as soon as
they hit the highway. Passing
trucks could take them over the
state line and into the big cities of
Kentucky and Ohio, where they
could hole up in some small hotel
or flophouse with safety for weeks
or months. As soon as Trooper Seal
returned from Charleston, they took
up the chase. ,

A this point, Sheriff Brawley
went to the Charleston bar-
racks to collaborate with Lieut.
Taylor on the paper fragments.
There, with the aid of a glue-pot,
they began to assemble a queer
collection of documents. By noon
the salvage consisted of: an iden-
tification card, bearing the name of
Edward Boles, Route Number Four,
Byrnside, West Virginia; a torn
page from a pocket-size notebook
gontaining the address: No. 79
Gardner Street, Charleston; and
personal letters signed in a fem-
inine hand.

Taylor was scanning the papers
speculatively when he was sum-
moned to the phone in his private
office. Sergeant Boone was on the
other end.

“T've taken a large number of
fingerprints from the interior of
Hill’s car,” he reported. “I’ve al-
ready eliminated those of Hill and
have two distinct sets which might
a to the men we're looking
or,”

“Fine work,” Taylor said enthusi-
astically. “Go over our criminal files
and those at the county court and
see if you can find something that
will, match the prints you have.”

Taylor now decided to check the
Gardner Street address and sum-

moning Sheriff Brawley they start-
ed off.

At 79 Gardner Street, they found
a John Wilson, who explained that
his address had been given to Ed-
ward Boles by a friend in the hope
that he, Wilson, might employ
Boles in his business. Boles had
called on him on Thursday morn-
ing and had arranged to report for
work on the following Monday. Wil-
son had no idea how the slip of
paper bearing his address, and
Boles’ identification card had been
left in the hotel room.

The two officers thanked Wilson
for the information and sped to
Byrnside. They found Edward
Boles at home. Lieut. .Taylor dis-
played the assembled identification
card and slip of paper. Boles ad-
mitted that they came from his
wallet.

“How do you explain their pres-
ence in the waste-basket at the
Kanawha View hotel?” Sheriff
Brawley asked.

“My wallet was stolen.”

“How?”

“Well,” Boles said, clearing his
throat, “it’s this way. I left my coat
in the car when I called on Mr.
Wilson yesterday morning. I never
gave my wallet a thought until I
returned to my car. When I reach-
ed into the inside pocket, it was
gone!” .

“Anything else in it?” Taylor
wanted to know.

“Only a couple of dollars my wife
had given me for lunch if I needed
to stay in town for the day.”

This information made it cer-
tain that the men picked up by
Red Hill were local talent and petty
thieves as well. Sheriff Brawley
judged that at least one of them
came from the Gardner Street
area; that he had seen Boles’ coat
in the parked car and had filched
the wallet.

4 yew sheriff's theory was substan-
tiated later in the day, when
Sergeant Boone reported that the
fingerprints found in Hill's car
matched those of a Richard Lee
Collins, who had served a term at
the Boys Industrial School at
Pruntytown on a charge of petty
larceny. Kanawha County records
showed that he had served twelve
months in the county jail on a
charge of assault and battery. Pre-
vious to that, Collins had served
a term in the Federal Penitentiary
at Chillicothe, Ohio, for auto theft,
and violation of the Dyer Aet.

“What is his address?” Taylor
asked.

“The records show he now lives
at 277 Gardner Street,” Boone re-
plied. “He’s married and has a
daughter five months old.”

Gardner Street! Collins’ home
was but five blocks from the Wil-
son residence. Taylor and Sheriff
Brawley drove to the address only
fo learn that Collins was not at
home. His wife explained that he
had left Thursday morning for
Bluefield in search of work.

“Did he go alone?” Sheriff Braw-
ley queried.

“No. He told me he was going
with Marv Weber. They’ve been
good friends for many years.”

“Do you know where Weber
lives?”

“Oh, yes. He stays with his wife

. and baby at 601 Capitol Street.”

Upon their arrival at that ad-

dress, Sheriff Brawley and Lieut. |

Taylor found that Marvin Weber
was also absent from his home.

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_COLLINS, Richard, white, hanged wvsP !'Kanawha) October 11, 1946

HUMES

that he had seen Hill make a pick-
up at the Lee Street intersection.

“Yes, I saw him pick up two
men,” Sanderson answered Braw-
ley when interviewed. “He stopped
for a traffic light at Lee and Trus-
low. These two men were on the
northeast corner when I left my
house. I saw them get into Hill’s
car.”

“What did these men look like?”

“They were young fellows, about
. twenty years of age; the taller of
the pair was dressed in a brown
suit, the other in a blue one. They
sat in the back after they entered
the car.”

“I hope,” Brawley said prayer-
fully, “that you heard them tell
Hill where they were going.”

Sanderson shook his head. “I did-
n’t hear a thing. I was just passing
by.” .

“Which way was Hill headed af-
ter he picked the men up?”

“Toward Edgewood Road,” San-
derson replied. “I wish I’d known
this would be important. I’d have
paid more attention.”

Had Hill known the men? Or
were they hitchhikers?

Later that afternoon, almost
everyone in Charleston who could
walk, was helping police officers
search every highway, lane, ravine,
culvert and woods in a wide cir-
cle, taking in the southwestern cor-
ner of the county.

Sheriff Earl D. Brawley who directed the manhunt
for the brutal slayers of the popular Denver Hill.

By EUGENE PAWLEY

AS Red Hill dead or alive?
\ And where? .

His manager asked those
questions four hours after he was
due at the office. Police asked them
another hour later. And every-
body in Charleston, West Virginia,
was trying to answer the riddle,
but couldn’t.

The questioning began about
mid-morning on Thursday, April
18, 1946, when Denver D. Hill,
salesman for the Commerce Clear-
ing House, failed to report at the
office. His superior telephoned
Sheriff D. Earl Brawley of Kan-
awha County.

“One of our men, Denver Hill,
hasn’t reported to work. I called
his home and learned that he left
at the usual hour.”

Sheriff Brawley knew that Hill

who was 39, a church-goer and
sports enthusiast, would not dis;
appear voluntarily. Something
must have happened to him.

He called Lieutenant C. P. Tay-

16

lor, in command of the Charleston
detachment of the State Police and
requested that the following alarm
be broadcast immediately:

“Pick up 1941 Packard sedan,
black body—license number 177.”

This move brought no results by
noon. City, county and state offi-
cers covered the roads out of
Charleston for several miles and
found nothing. Repeated broad-
casts by state police did no good.

By the middle of the afternoon,
Brawley and his men were direct-
ing an intensive search in the city.
They questioned everyone in the
neighborhood of the Hill home.
But they found no one who had
seen the man or his car that morn-

ing.

VERYONE in the city-was now .

talking about Hill’s disappear+
ance, for he was well liked. That
helped Sheriff Brawley. He received
a tip that Julius Sanderson, who
lived on Truslow Street, had said

But no one found even the small-
est thing to indicate what had be-
come of Red Hill. Everyone was
worried. The missing man’s wife
was prostrated by the disappear-
ance, while his two sons, Richard
and Charles, maintained a lonely
vigil awaiting word of their miss-
ing father.

The family was more worried af-
ter the next development. It came
at 5:30 p.m., when Ralph Anders,
playing a practice match at the
Edgewood Country Club, telephoned
State police that he had seen the
missing Packard sedan parked on
Edgewood Road near Magazine Hol-
low. He had been playing the third
hole and had sliced a shot onto
the road embankment. When he
had walked there to retrieve his
ball, he had noticed the machine
with registration number 177. Then
he had hurried to the clubhouse to
telephone police.

T was a few minutes before six

o’clock when Sheriff Brawley,
Deputy Bradford Carte, Lieut. Tay-
lor and State Troopers. J. M. Bal-
lengee and W. R. Seal urrived at
the spot on Edgewood Road. But
there was no sign of the Packard.
The imprint of tire tracks was vis-
ible in the soft ground at the side
of the road but that was all.

¥

so


A RIDE

WHEN A PAIR OF CARELESS KILLERS FAIL
TO CLEAN OUT THEIR WASTEPAPER BASKET
SHERIFF EARL BRAWLEY OF WEST VIRGINIA
PIECES SOME SCRAPS OF PAPER TOGETHER
. + AND SOLVES A MURDER JIG SAW PUZZLE

“Looks like the car was heading
west toward Route 60,” Brawley ob-
served as he studied the tire marks.
I suggest we split up and cover
both directions in case it doubled
back.”

Lieut. Taylor agreed and he, with
Troopers Ballengee and Seal, sped
off in the direction of Highway 60.
Sheriff Brawley and his deputy re-
turned to their car and proceeded
toward Magazine Hollow.

It was the sheriff and his deputy
who made the next discovery. They
were traveling at a snail’s pace on
the lookout for signs along the
road. Suddenly Brawley espied an
object lying in the drainage ditch
below the shoulder of the road.
He tugged at Carte’s sleeve and
ordered him to stop.

The sheriff walked back along
the road and picked up a brown
leather brief case from the ditch.
He studied the blood-flecked pouch,
then opened it. Legal documents,
business forms and _letterheads,
bearing the Commerce Clearing
House imprint, were inside. The
case belonged to Red Hill.

Brawley studied the ground
closely. Meanwhile, Deputy Carte
walked slowly away from the spot,
his eyes following a set of foot-
prints.

“Hello!” he said suddenly, hur-

rying toward a clump of tall trees
to his right.

He bent down and picked up a
blue coat. It evidently had been
rolled up and tossed away in a
careless effort at concealment. As
the coat unfolded, Carte observed
several stains on its front.

Brawley, criss-crossing another
part of the field to Carte’s left,
gave a sudden cry. He had stepped
directly upon a hat tossed care-
lessly into the weeds. It was blood-
stained. On the sweatband were the
initials, D. D. H.

“It’s beginning to look mighty
bad for Hill,” the sheriff said. “All
this blood shows that somebody has
been hurt bad—and it must be
Hill.”

Brawley realized that the van-
ished man could well be dead by
now but. hesitated to decide defi-
nitely that he was. He was still
hoping for the best..

“Suppose you stay here,” he said
to Carte. “I’ll go and telephone for
help. If Hill is dead, his body should
be close around here, unless they
dumped it on the way.”

The sheriff reflected that if the
two hitchhikers had been traveling
in this direction, they were headed
for Athol. And if they had killed
Hill between Charleston and. Athol;
there were dozens of side roads,

|

Red Collins
Car. He stole

lanned a holdy

the Packard,

P and need
below, belonging to Hill.

ed a getaway

some leading into wildernesses
where they could have disposed of
the body.

Back in his car, again, Brawley
covered a mile before he reached
a gas station. There he telephoned
the Charleston barracks and asked
Trooper W. L. Pence to send all
available men to Magazine Hollow
to help in the search for Hill's
body that must be in the vicinity

“Have Boone come to my office
to work over the briefcase, coat
and hat,” he said, referring to Ser-
geant R. I. Boone, state identifi-
cation expert. “I’m bringing them
there immediately.”

Brawley next telephoned Frank
L. Taylor, Kanawha County prose-
cutor. After listening closely to the
sheriff’s description of the clues

found on the knoll, Taylor told
him:
“Don’t leave the Hollow until

you've picked up a trail of some
sort. We’ve got to know whether
Hill’s passengers went north or
south. They are killers.”

When the sheriff hung up he saw
that the filling station operator's
face was suffused with excitement

(Continued on page 28)


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the two suspects talk to each other
and they were quickly rushed to
the jail and separated.

While Bale went to question the
bartender, Diver sent the knife to
the laboratory and _ confronted
Thompson. “Pantry says that knife
belongs to you,” he charged the
suspect. ‘We know you were with

cause we’ve got witnesses. I think
Pantry is trying to frame you for
the job.” ,

“He’s a lying rat,” Thompson
burst forth. “I loaned him the knife
and he carried it with him the night
we took the old man out.”

“Then you did take him out—”
Diver left the statement unfinished,
watched the trapped expression on
the man’s face and went on. “We
didn’t know that before.”

When Pantry was questioned he
denied having anything to do with
the death of Hanna and claimed
they had left him shortly after
leaying the tavern. Bale returned

Hanna the night he was killed be-.

a moment later, just as the labor-
atory technician submitted his re-
port. It stated that Pantry’s finger-
prints were all over the handle—
in human blood.

“What do you say to that?” Diver
asked him.

The man offered no answer and
Bale suggested that he be taken to
the morgue to view the body. The
accused man quailed then and in a
quavering voice said, “No, I can’t
stand that. I killed him and Clar-
ence helped me.”

In his confession Pantry stated

that he and Thompson met Hanna.

in the bar on the night of the
crime. Though not drunk Hanna
was flashing a big roll of bills and
buying drinks for the house. They
had encouraged him to drink more
and more so that they could take
him out and rob him. In the dark

lane near Pinkstaff, Hanna first.

realized what they were trying to
do and started fighting. While
Thompson was struggling with him,

Pantry had taken the knife from
the back seat and had struck him
several times.

“IT don’t know how many times
I hit him,” Pantry said brokenly.
“Thompson kept yelling at me to
hit him harder.”

N due time both men were in-

dicted for first degree murder
and in the months before the trial
Thompson was questioned many
times but he clung to his plea of
innocence.

On February 18, 1938, Thomas
Pantry went to trial before Judge
Roy E. Pearce in the courthouse at
Lawrenceville. He received a sen-
tence of twenty-five years to be
served in the state penitentiary.

Just four days later Clarence
Thompson went on trial in the
same court and received a like sen-
tence. Pantry’s confession was the
winning weapon for the prosecu-
tion.

5, th Ks

et ee

“Did you say somone had been
killed, Sheriff?” the man asked.

Brawley nodded.

“Well, maybe this will help. Two
|men stopped here a couple of hours
|ago and wanted gas. When I told
the driver he was too far away
from the pump, he said, ‘Never

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mind, we’re in a hurry.’ They were
riding—”

“Wait a minute,” Brawley inter-
|rupted. “What did these men look
like?”

“I only got a good look at the
| driver,” the station man said. “He
| was a tall, dark-haired fellow. Must
| have weighed around a hundred
| and sixty. He wore a brown suit but
jhe had no hat. The other fellow
| was smaller. They were riding in a
|1941 Packard.”

“Good,” said the sheriff. “Now
| have you any idea where they
went?”

“They were headed for Athol
when they left here.”

This information answered sev-
eral questions. It showed that Hill
was not in the car when it had
pulled into the gas station. It show-
ed further that the pair that had
entered Hill’s car in Charleston
were bound for Athol after com-
mitting some criminal act.

There was no doubt in Brawley’s
mind but they had killed Hill. What
had they done with his body? Who
were they? What was their mo-
tive?

Brawley returned to the phone
once more and called the Charles-
ton Post, directing that an alarm
be relayed to the Montgomery bar-
racks to be on the lookout for the
; pair believed headed for Athol.

HEN he’ returned to the Hol-

low, several troopers and spe-
cial deputies, directed by Carte,
were beating the brush in search
for the corpse. Dead leaves covered
the rocky terrain and made a curi-
ous rustling sound as the men
walked through them.

The deputy sheriff climbed over
the brow of a knoll and worked
his way to the base, thinking what
an excellent spot it was for hiding
a body.

Abruptly, he halted. ‘His face
blanched and a lump grew in his

throat. Twenty feet in front of him
was the figure of a man, strangely
twisted and lying face down on the
ground.

Carte’s contact with death had
been remote, but he knew this man
was beyond all aid. He raised his
voice to summon the other search-
ers.

“Looks like Hill all right,” Sher-
iff Brawley said, coolly surveying
the body.

The corpse lay crumpled on its
left side with the face buried in a
soft cushion of leaves, the right
leg twisted over the left. A dark
crimson stain surrounded a bullet
hole behind the left ear.

Brawley, moving deliberately,
reached into the dead man’s pocket
and pulled out a wallet. Then he
stepped back and examined the
contents. He found receipts; a so-
cial security card and a driver's
license made out to Denver D. Hill.
“But no money,” he told the oth-
ers. :

“Murdered and _ robbed,” Said
Carte. “Surely, a man of his posi-
tion carried money at all times.”

Hill’s body lay in one of the
roughest sections of the hilly coun-
try. It was approximately four miles
from the Edgewood Country Club

where his Packard sedan had been

last seen. Here a series of three
gullies merged into a single ravine.
Highway 60 ran east and west ap-
proximately twelve miles north and
a graveled north-south road ran a
half-mile to the west. To the south-
east was a trail-like road seldom
used.

“Whoever murdered Hill,” said
Brawley, “must know this country
very well. It’s hard to believe that
the killer would just stumble onto
a place like this.”

“A hitchhiker might know,” a
deputy reminded him. “Or even a
tramp. While we don’t let any bums
hang around town, plenty of them
beg handouts on their way through
and hole up on byroads like these.”

The sheriff nodded. He knew the
transient problems that constantly
confront small cities and towns.
His thoughts returned to the two
men seen getting into Hill’s car
at the intersection. Were they
strangers passing through Charles-

ton? Or were they local men who
had singled out Hill as their victim
because of his prominence?

The latter theory seemed most
logical and was substantiated by
the fact that Hill’s body had been
abandoned in one of the most in-
accessible spots in the entire coun-
ty. And, Brawley summarized, only
a native would select such a hiding
place.

Dr. Max J. Goldman, Kanawha
County coroner, had been summon-
ed from Charleston. He made a
careful examination of the corpse,
then announced, “He’s been shot
once through the head just below
the left ear and once below the left
shoulder. Both bullets entered from
behind and passed through to the
right front of the body. Either bul-
let could have caused instant
death.”

“How long has he been dead?”
asked Brawley.

“Judging by the evidence, I'd say
about four hours,” replied the cor-
oner, getting to his feet.

“Then he was shot before An-
ders saw the car near the club golf
course,” the sheriff observed. ‘His
killers thought of disposing of his
body at that spot but were scared
away by the appearance of the
golfer.”

While Dr. Goldman was occupied
with the task of removing the body
to the Cunningham mortuary,
Sheriff Brawley directed a careful
survey of the surrounding terrain,
but there was nothing of value to
be found. .

Brawley went grimly about the
business of welding his slender
clues into something substantial.
He and Deputy Carte pressed their
investigation around Charleston,
searching for the men seen by San-
derson, while state police cruisers
patroled the highways in their hunt
for the 1941 Packard.

N the following morning, Lieut.

Taylor received a phone call
at the Charleston post. An un-
identified Army lieutenant stated
that he had seen a 1941 Packard
sedan with .license number 177,
within two miles of Athol, travel-
ing in the direction of that city.
However, he had not known that

imself for not h Ing
an into custody, th

: to a restaurant for.

ack since ‘noon. -He~

' stay in the car. There

: no telling what kind

ince “cat’s eyes” the. ~

is possessed. After.
ot..beef sandwich,. he
ban. Still no trace of
vahill. Wary even of:

steners-in, he relayed ~

he startling break im

; with the — sheriff.
lengee and Seal drop-
ley enlisted their aid.
ckly, then drove their
ed cars to a garage.
‘tor readily. loaned>
touring car, and in-

powerful spotlights |

it, the old jalopy roll-
uth on -the highway
canawha Valley Inn.
the wheel, switched
.s from dim to bright
‘ards. He braked to
bright lights loomed
nd let the car race
tly a esharp whistle
1 the dark silence off
of the road. ~

ddled on the floor in |
sed his head slightly’.
. Sam. *>

t, “It’s‘nfe ..
no answer, but pres-
kers heard the swish
ugh brush, then. the

into the steep grassy -.

2yes, strained through
. and saw two dark
ywly up on the rim

Swiftly he. clicked «

t buttons. Blinding
| the eyes of the two
ey halted, rigid. Bal-
ose with a warning
chine gtin fire over:
from the rear seat.
from his crouch be-
‘ont seat and dash-
yelled, “Drop those
riddle you!”

‘ers thudded on the

the right hands of

speradoes,

right, sheriff!” said
sure were ready.”
haired ene—Collins—
vd have had a good.
r hands if it hadn't
it machinegun.” He

io, and his face went. _:

e. “Rat!” he shouted.

”

ve,” warned Ballen-

at

Sod
,

gee, leaping out, and. training his
“weapon. on the. furious killer, He:
_couldn’t ‘resist biting’ out, “Bule-
‘lets: don’t sound so: good: wher’:
they whistle around your head, do”
Methey Pte i tts = RAs a ae

Collins’ companion was neither:
Reeves, nor Berger, nor Cahill,
He was Marvin Curtis Weber, 21,

_a sluggish-minded dupe. of-the al- -

most-clever-enough ex-convict. He-

“never had been in trouble before.’ ,

At headquarters. later, Collins
cockily told his story. He had:

_ talked Weber into staging a series
of holdups with him,®. Fee

“He’s nuts about Wild West -

stuff; and: it. wasn’t hard,” said:
Collins, smirking. “I bought ‘hint © a

‘a thirty-eight like-mine in the aft -
ternoon, early. We needed a fast ‘-

getaway bus, so we stood around’:

‘at Lee and Truslow looking ’em ©
over for a couple of hours.”

“You figured right along on kill.
ing the owner?” asked Brawley. '
Collins raised his brows. He’

looked at the sheriff as though he -’

judged him simple of mind, He -
said, “Sure. I can’t see that rope
and gag stuff... too risky.”

Brawley, Brabban and the oth-.

er officers stared incredulously at:
-the callous slayer as the full im-

plication of his words dawned on
them. During two. hours’ that”

Thursday, scores of motorists ith.
good cars, had driven past the’ in-
_. tersection of Lee and Truslow _

‘counted.

_ Streets,‘ totally. unaware that, two

sets (of. greedy, .inspecting: eyes
made’. .their,;.passage’ a fantastic
gamble ‘with sudden;. violent death.
‘Hill's ‘big’ sedan’s ‘promise of
speed ‘and power lost out -for ‘its

th td over its radio. that
their victim. had been discovered.

They had taken cover, and way-
youth had re- ,

laid. D’Iorio as the

‘We got a tough break,” wound
up,,Collins, whiningly. ‘We didn’t
expect. the body’d. be. found for
days. Funny ‘thing . . . I didn’t
know. it was this big shot ‘Red’

Hill I plugged.” The killer sighed.

“He sure ‘smoked good -cigars.”
No charge was -placéd against

D'lorio because of his youth and:

obvious terror of Collins. He was
thanked for his fine cooperation
after: Brawley had primed, the
truth from him, and. released.

Reeves’ alibi was confirmed. Ber-* donyms.

,

4

“HE JUST SAYS , ‘OPEN SESAME, AND IT

2). FALLS OFF THE HINGE Si".

ger was entirely cleared also. He
had a curious explanation for his
strange absence. Hearing of his
benefactor’s murder, he had rush-
ed frantically around town, bor-
rowing everywhere until he .col-
lected $750. He arrived -at Hill’s
residence shortly after midnight
and distractedly» paid back the
loan to the widow. Cahill did not
return ‘to:.the vicinity; but, ob-
viously, was not connected with
the crime.

Weber pleaded guilty on June
2nd, and was sentenced to life im-

_(prisonment the next day.

Collins was convicted by a jury

. Which deliberated only _ fifteen

Fnlentes or, May 15th. Sentence of.
d

t

pronounced by Judge Cyrus W.
Hall. -
The devil’s understudy, whose
ruthless bullets cut down a genial,
-beloved father and nearly killed
his one-man audience took a bow
for his lurid, senseless perform-
ance on Oct. 11th. In the state
penitentiary, at. 8:30 o’clock that

night, he bowed his head into the °

‘hangman’s noose.
The ‘End

* Editor’s note: To protect the
reputations of persons involved
in the investigation of this case,
Rex Cahill, Harry Berger, Robert
Reeves and Sam D'Torio are pseu-

eath by hanging immediately was _


“Country Club grounds, scene of the
brutal murder, for :
eae rautnrmen 4 cia

Clearing House where Hill was em-
_ ployed. The large building appeared

toe

‘The latter was shocked to hear of” —
_. his employee’s murder. =

promised an immediate ‘autopsy. —
«Contact me at Brawley’s office
‘the moment you're through,” Tay-
‘lor advised the physician. “I want ~
‘those bullets!” He left several men -
in charge of ‘Trooper Edward
Guthrie to search the Edgewood

possible clues.
eats, a GEE ene

AYLOR drove to the Virginia
Street offices of the Commerce

‘deserted, and only one elevator was
running. He found the manager
making ready to close for the day. |

_..“He left here a few minutes after ~~
four o'clock,” he said dully. “His ~~
usual quitting time is five, but he ~—
said something about having to be
“home early to take his family to a

show.” as As
- Further questioning failed to un- —
earth a possible motive for the sales-
man’s murder. Hill, it was revealed, ~~

‘had been a member of the firm, 2...
which -specialized in a reporting © =

ies ¢

. ; Bia Bowes ty 5% Bepesacie ae egret

AT photos used in this story were speci
for BEST TRUE FACT DETECTIVE by
models. Photos by Gary Wagner.


“smiled ih
night, as on every Thursday night, ~
“= he was to take his wife and children
Sains to the movies.

ENVER Hill whistled a ses
lar tune as he tooled his car |

in and out of Charleston traf-
fic. Swinging into Lee Street,

DRO he recognized a passing motorist and

-- waved. He glanced at the dashboard
“.. ¢lock, saw it was four-twenty, and
happy anticipation. To-

The busy West Virginia atredt was

: thronged with late shoppers wend-.

ing their way homeward. Hill ad-
justed the rear-view mirror, settled
back in the seat, and then, as men
sometimes do, took stock of himself.

-. He was thirty-nine, a_ successful ;
‘ salesman, a name to be reckoned
with in local political circles and the ~

proud father of two fine boys. In
addition, he owned his own lovely
- home and was in excellent financial
shape. The — looked rosy in-
‘3 deed. |
rc 10h ‘grinned ¢ as he peeaTied his
wife? s parting words that morning.

-.“Get home early tonight, darling,”

she urged him. “You know how the
boys look forward to their night out

with you.” A. red light snapped him .
from his reverie, and he applied the ©

‘brakes. He was anxious to get home
to his family, but Fate, ever fickle,

had suddenly decreed otherwise. For ©

at that very moment, she was con-
templating his future. And in it
somewhere was a murder...
. * * +*

R. Max Goldman turned the body

body over on its back, making
mental notes as he worked. The man,
he saw, was conservatively dressed
in a gray pencil-stripe, blue shirt
and tan shoes. He was about six
feet tall and weighed around 170

pounds. He reached into his instru- .

‘ment bag, and out of the corner of

his eye, he caught the picture of a —

group of state and local police offi-
cers huddled a few feet away, ques-

tioning an overalled man who was
fidgeting nervously.

“Let’s have your story from the —

beginning,” urged Lieutenant Tay-
lor. “First, your name.”

oe. “Jack Anderson, ” replied the man.
“T live over in Chandler’s Branch,
on Route 5. Like I said, I was

_..*threadin’ my way through the weeds _
fy°. lookin’ for stray golf balls when I

see this car brake on Magazine Hol-
low Road. Two fellers got out, and
leave a third man sittin’ behind the
‘~~ wheel with the motor runnin’. I
noticed one of the men had a gun,
and he kept pointin’ it at the feller
walkin’ ahead of him. They go into
_-. the underbrush here-and ‘then I
> hear three shots, quick-like. The

went, tearing down the road.”

prs Hill's tha at said,

ale Haid 3 obs

. feller ne had the gun comes runnin’

out, jumps into the car, and off they

_ “Did you recognize them?”

. Anderson shook his head. “No sir.
I ain’t never seen any of ’em before.”
~« “What did they look like? What’

kind of a car were they driving?”
cut in Sheriff D. Earl Brawley.

- Anderson cogitated before an-
swering.
shootin’ was young. About twenty-
two or twenty-three, I reckon. A
tall, wavy-haired chap. He wore a

_ gray jacket. I couldn’t see the other

one in the car very well, but ’'m

sure he was pretty young, too.”
“And the car?” prodded Taylor.
“A black Packard,” was the

“prompt reply. “A 1941 job, I think.”
At this point, they were joined by
~Dr. Goldman. :

‘The physician faced Anderson.

“Did I hear you say the killer fired
“s:-three shots?” Anderson nodded.

“He’s been shot twice,” said Gold-
man. “The other shot must have
missed.” He glanced at his watch,
saw it lacked a few minutes before
five o’clock and said, “The murder

..was committed less than a half hour
‘ago, just as this man says.”

“Any idea what caliber gun was

. used?” asked Taylor.

The physician nodded. “J udging
from the size of the wounds, I’d say
a .38.”

Taylor knelt alongside the body

and went through the dead man’s
pockets. He found a leather wallet,
some letters, an address book, an un-
opened package of cigarettes and a
monogrammed lighter bearing the
initials “D.H.” The billfold contain-

ed more than a hundred dollars in .
currency. The letter indicated that

the slain man was Denver Hill,.1410

- Woodland Drive, Charleston. .

“T recognize him now!” exclaimed
Brawley. “He’s ‘Red’ Hill, one of
the best athletes this town ever had.
A big shot in politics, too.”

Taylor digested the news thought-

fully. Had Hill been murdered be-

cause of some political feud? He re-

called hearing rumors of dissension
. within the party of which Hill was

a member. Continuing his inspection

“of the body, he noticed the victim
-. wore an expensive wrist-watch. A

diamond ring adorned the left hand.

Robbery as a motive was appateetty

out.

“This has all the earmarks of a .
gang job,” ventured Brawley. “A

gun in the ribs as he was leaving

his office, a quick ride into the coun-
try, and ‘bingo! It’s all over.”

Taylor, who had _ been going

your

5 ee pete BES I et ae

Khas

“The feller who did the ©

to the Cunningham Funeral Home 4
in L enatleston qrhere. Dx ec =

BRAZEN’ WHEN HE HAD

A GUN IN HIS HAND.

HANGMAN SLIPPED THE

_NOOSE AROUND HIS
“st

ERING AND HUMBLE...

VERY MUCH AFRAID!

od

theory sounds good, except for the
snatch part, Sheriff. Anderson says “a
the killers used a 1941 Packard for =
the job, and according to this regis- =
tration paper, that’s the type car te
- Hill owns.” aor
Brawley threw Taylor a surprised
glance. “That part doesn’t make § ™
sense,” he declared. “Why should = 4
they use Hill’s car? They can’ t hope 3
to get very far with it.” - ery
Taylor had a different slant. y
think they played it smart. One %
thing, you can’t trace the victim’s
car to them — which means we'll
probably find it abandoned on some
unused road.” iy
’ He snapped instructions to Troop- et
er J. M. Ballengee. “Contact the  ~
Montgomery barracks via the two-'
way and have the dispatcher issue
an alarm for a four-door, 1941 black
Packard driven by two men. License
. humber 177. Tell him to warn all
‘patrols to proceed with caution; *
these men are armed. Also have him
Close all roads south and southeast .
of Charleston, particularly those
around Belle and Alloy.”
Ballengee nodded and strode off. :
‘Taylor faced Brawley. “This killing~
looks like the work of hired gun-
men,” he said. “The way I see it,
they must have been lying in wait.
for Hill to quit work this afternoon; ©
then they shanghaied him when he
was getting into his car.”
Brawley agreed. “I think our first - 4
_ Moves are to question Mrs. Hill, and
also to see if we can’t trace Hill’s @
movements from the time he left x
the office.”
~ “Good idea!” pe eke Taylor
“You handle Mrs. Hill. I’m _ too
Squeamish for that job. And Pi
check Hill’s last actions.” #3
After pictures were taken of th
murder scene, the body was removed 4


és “ ae > es ie “i ne " re : a tthe se eo
service for corporation and tax laws,

to harm Hill. The victim, it appear-
“Ted, was
. only diversion was politics...

~- his badge at the clerk. “Do
_ Mr. Hill?” he asked: him.

es “The clerk nodded. “Yes, sir?” .

><> “Did he purchase a pack of cigar-
..¢, @ttes from you this
_,°yfour o'clock?”

“Yes. He also bought two Corona-

afternoon around

ae *. Coronas.” oe Pe es
-* Taylor frowned. He had found no

cigars on the slain man when he
had examined his pockets. The kill-
_-@rs must have taken them. This
seemed incongruous, in view of the
untouched wallet and jewelry found
on Hill’s body. From the cigar clerk,

acknowledged

the man. “He was a little earlier

Rioters oe kite Ee
} ae ¥

for many years. The manager was ©
emphatic in stating. that he knew |
- Of no one who could possibly wish -

strictly a family man whose _

“+. Taylor thanked him and stopped .

--. at the cigar stand in the lobby be- —
.. fore leaving the building. He flashed .

youknow —

than usual, and he was in a. big .

. hurry.” : ee
__ “Was there anyone with him when
he pulled out?” probed the detec-
tive. ceo ae
“No, sir. He was alone.” :

_ The attendant told him that Hill
.customarily drove along Virginia
Avenue to Lee and out Lee to his
home on Woodland Drive. It was in-
conceivable, reflected Taylor, that
somewhere along those busy, crowd-
filled streets, Hill was kidnapped by

- queried the sheriff.

~ tioning her.

~ Denver didn’t

" about was taking care of my brother =
and me, and Mother,” he said stout- _ abe
“ly. “T can’t understand why anyone —-

: would want to kill him.”

papers here at home?’
Brawley. one

. Sheriff to a colonial desk.
.Swiftly sorted through the
erable slips. o
proved unsuccessful until he found

Brawley
innum-

~ a receipt secreted in one corner of.

the desk. He read

it with interest,

then placed it in his pocket.

en he was told it was all right

for him to go upstairs, he found Mrs. pe

Hill with her head in her arms, sob-

- bing fitfully. He waited patiently

for her crying to cease, before ques-
Finally,
stricken woman managed some
measure of control. She told him

that her husband had always made |

it a practice to have no appoint-

i he learned that Hill usually parked ments on Thursday evenings after _ broadcast when a big black Packard
i _ his car in a lot at the rear of the leaving the office because of his with two guys sitting in the front
sft he building. oe - - weekly trips to the movies with his Seat drove up, and they asked for
I Taylor went there and spoke to ~ family on ~that ‘particular night. - some gas. When my son told them
i . the attendant. “Sure Mr. Hill was — However, Brawley pried one impor- they were too far from the pump
%. here this afternoon,”

tant piece of information from the
woman. About a month before the
murder, a prowler had attempted to

- ain admittance to the house. —

“You didn’t notify the police?”
Mrs. Hill shook her head. “No,
think it was neces-
sary,” she explained. “The children
and I had gone to bed early that
night. Mr. Hill was attending a poli-
tical meeting, and he was out late.
When he did come home, ,as he
swung into the driveway, his head-
lights caught the figure of a man

~* “Did your father keep any private
, persisted

._ The youth nodded and led the pick him up. ----> oe
- “Those. missing cigars ‘interest
me,” Brawley -said when his men
of paper. His search ~ had left. “It suggests to me that the
- killers are just a couple of young
punks on a spree. If they were hired.

' gunmen, a few
” tice them.”

~job any easier.” 22o-.iegeaes
-~, The ringing of the phone inter-
the grief- .~
‘end was excited. “This is Joe Spang-
- Station. I had just heard the police

_ they looked kinda’ scared, and they
left.” = ee a.

. south of Belle,”

"ago, so they can’t be far away.”

. hews to Lieutenant Taylor. The lat-

instructions to

cigars wouldn’t en-

“Maybe you're right,”
Taylor, “but that won’t make our

it said. “I run a service

“Where is your place, Joe?” asked
Brawley. oe erga
“I'm on Route 60, about a mile
replied Spangler.
“This only happened a few minutes

_ Brawley thanked the man and ;
hung up. He quickly relayed the

ter immediately contacted the Mont-
gomery barracks by phone, request-
ing the radio dispatcher to route all
Squad cars in the general vicinity of

his .killers, but unless evidence was”
. uncovered to the contrary, it- was
the only answer to his puzzling
death. . PCLT ASO Dy ox tal
Before returning to Brawley’s of-
“_<, . ‘fice in downtown Charleston, Taylor
: phoned the news of the slaying to —
_Yadio_ station KCHS, requesting
> "them to broadcast a special bulletin
on the murder and urging all citi-
zens who had seen Hill after four
o’clock that afternoon to contact the
police authorities at once.
- Meanwhile, in an exclusive, resi- .
dential section of the city, Sheriff

trying to jimmy open one of the
side windows. The man became
frightened and he ran. He disap-
. peared in the darkness. Denver
chased him, but he _ escaped.” os
“You have no idea what he was ~
pafter?”) 23.7 a Pe
- . “His purpose must have been to
- rob the house.” . me ‘
°. Brawley was not so sure. He
thanked Mrs. Hill for her coopera-
tion and departed. cas
AAT his office in city hall, Brawley
A found Lieutenant Taylor wait-

Belle and Alloy on Route 60. He in-
-Sisted that the missing cigars be
mentioned in the broadcast. “They're
‘apparently heading for Lewisburg,”
he warned. “I want every car be-
tween here and the state line alert-
-. ed. Those’ killers must be caught!”
(As they sat discussing further
_moves, one of the greatest dragnets
ever organized in West Virginia was
_ well under way. Two-toned highway -
_ patrol cars were Swarming over

and town police were keeping a

Brawley was questioning Richard ing for him. The two men quickly sharp lookout for any suspicioys

Hill, 16, the slain man’s son. Mrs. swapped what they had learned. persons driving a black Packard

Ley Louise Hill, prostrated by the news When Brawley was finished Taylor Anderson and Spangler were sen

** of her husband’s murder, was being - asked, “Let’s see that receipt, Sher- for and -put to work Checking th

sw. «attended by a physician in an up- __ iff.’ ee ae cnet re ee Rogues Gallery files in an effort t
.) stagrs room. ~ ee ee oe Brawley complied. Taylor studied _identify the killers.

{Young Hill” a_star_ athlete at it aloud. “It’s an 1.0.U., signed bya . Shortly after seven o'clock tha

ir Charleston High School like his ~ Jesse Akers, for $500 bucks,” he “night, an agitated Charleston resi=

ji. °° father before him, could shed no mused. “Lots of guys have been dent rushed into police headquarters

light on the murder. “All Dad cared and asked to see Sheriff Brawle
ave ‘ : ‘ a Men et monies ae SP ope ah : meet

sates siete

PUNKS

mea WAS’A JOKE, ROBBERY: A’ RIOT... « EXECU- |

BUT THE LAUGH= WAS ON THE KILLER! |

TION’ WAS THE LAST LAUGH?


Cite

Ce arOy Zuwrtsveswre mow
“ Romine, he

ae the dynamite
ees, and while Joha
up down to the
took command of
at remained on the
| rife fire to prevent |

pm

Collina, however, nas
a made.

No Troops Moved.

No troops have been moved from
the south since Monday except
RRNA T= cavalrymen who embarked at Dud-
Annual Convention of Gael- jic for Liverpool Wednesday night.
{The other troops which arrived in

| Dublin on Monday are atill there.
The ruspicions aroused tn Ireland
oy the suspension of the troop move-

E | ic League of Ireland Will
\ Open Tuesday.
OR site | nent are Feported in hare been, Pro

: :
DA TA DUBLIN. Feb. 16.—-The situation; in parliament Wednesday by Lord

in northeastern Ireland will be an! (Chancellor Birkenhead and Secretary
Important {seue at the meeting next! for Colonies Churchill. The former,
‘ Hlow citizena’ in the six-counties area thorities.
UL Ddepute.

“Tuesday of the Ard Fheis or anoual. speaking in the House of Lords, stat-
and se ee on the public representa- ; To
oO
| zig

| convention of the Gaelic League of ed that the halting was due to the dis-
Ireiand. l crders in the south, while Mr. Church-
wes to President

indidacy of Ne- |

~ BE DISCUSSED

Notice haa been given by Kevin; hill told the House of Commons that
O'Sbeil, legal aecretary of the pso-; it was in consequence of troubles in
vieional xovernment, of a series of. the north and detention of the @donag-
resolutions pledging support to ‘‘fel-} han football players by Ulster au-

=)
Inv

Eireann to resist’ representatives and officers of oppos-

| sleo urke the Dall
investigate the facts

the attempt to destroy the unity og, ing sides, are to

_
tees
J iaton provided for under the Angto, everal dain Be unloojste were re-
‘Irtah treaty, one rasolution “calle: leased yesterday, only . three have
upon those responsible for tus init.a-j reached their homes according to lat-
tion never to consent to the exclusion: eat dispatches from Belfast, where
of any considerable body of nation-: there tg no relief {n tension pending

alista and the secure ali necessary arrival of the others. It ts not clear

400 |

, hannon, officers traced it te find that

ltiven in those counties to formulate; Mr. Churchill also announced that
ta policy which will defeat the move-|impartial commissioners, each of
iment for partition. The resolutions, which will {nciude several Britiad |

‘the Iriah nation. of the border dispute. ‘able tu recognize wi of the trio ina
Regarding the boundary commie-; Notwithstanding, declarations that | crowd of men. 1 of them were

safeguards for the dissenting minor-

here whether the: announcement io;

freasury Post. Day whe may happen to be in the Dublin of release sof eleven captives |
a Stemporar.iy excluded erea ja identical with vipidiaggih phages
Lo bi *c. : Mr o() =heil’s position ta connect on: before he left London that “eleven:
Pave (clnahatin pe with the provisional government more” had been located and proba '
pident Harding from gives these reasons apecial atguift-«bly would be released immediately.
las causd W Harry cance. but it fa uot Known how far To. Take Up Ireth Bill.
 & of the Republica: thes are official aad how far hiaown, The House of Commone wae again
pesca. ‘to take Up today the bill establishing |

{to seek an iovest:xa-
wral district attorney
divested Tluresday that
oe had been aant to
urporting to tndorse
{Jo Overton newro!
fe Weat Phiadelphta:
Intment es register of?
fataua tr, asury The!
Halves of Mra.
iper wife of Sen. .
vhn Wanainaker. :
and others, Haker :
fof the persons whose!
goed to ths telegrams:
Pabout them
ker eaid she had re-|
rom George S. Chris-j
o Preaident Harding. |
tnowledged tha receipt.
@nt from her for Over-
é Jotnt leiegram fre
r and Mrs. Charies'
jiadeiphia, indorsing |

tecalled that recently |
mi owere sent to the!
jenator Pepper asking!
mt of ®& etale prohibi:}
t deferred

a

}

‘MBER MEN |

AT WHEELING:
+ W. Va. Feb. 186. =

trending the ninth an!
fot the West Virginta |
allders Supply Dealers

LIGHT VOTE REPORTED ON

personal views

tbe [righ Free State, Mr. Churchi
moving aecond reading. The debate
In expected to occupy at least two
days ae

1 Strength of conservative Opposition ,

CHARLESTON BOND IssUE |

to the measure which ts stated to be |

krowing epace owing to recent hap-'
penings in [reland especially ba ph
Election Officials Expect
Increase in Number of Bal-

pings, canuot yet be satisfactori
gauged and will probably depend on)
lots during Afternoon.

developments between pow and the,
‘vote as well aa upon the statements -
(of the government ministers. Hest .
‘infurmed opinion at the moment ,
‘however, ts that the dissidents wil

CHARLESTON, W. Va, Feb. 16 /not prove powerful enough {0 Pre
_— A light vote was reported this! sent passage of the bill.

morutng on the city’s §490.000 bond | Causes Great Concern.

fesue for atreet and other Improre-
mente. but officers at the polls ex-

The strife in Belfast which Wednes-|
‘day went from bad lo ihe due is right
ected a big tnerease tn the number ; INK eatest concern to Lhe local au-s
Me ballots during the afternoon The thor Ues-uahose efforts to stop the,
street improvements contemplated : disorders have failed. The outbreaks |
inciuda the widening and extension | are confined to certain areas, and au-!}
of Washington and Lee atreets, for: thorities attribute the bad féeling to,
which $250.000 of the funds to be | religious prejudices.
raised will be paid to the atate for a} Troops are co-operating with police
portion of the old capitol site and ‘in efforts to root out nests of snipers,
other property. ‘but small success has thus far been
In addition to this $160,000 ta achieved and reports indicate that
needed for other land for the Wash. there will be further acta of terror;
ington street extention, and $80,090 before thy anarchy which {is incens-
fs asked for bulldlug a city incinera- | ‘ng che great majority of the Belfast
tor One of the arguments advanced | citizens is ptifed.
In favor of the tasue was that {f the,
city failed -to .‘co-operate”’ with the | CHILD eMOT TO DEATH
atate by buying the land and extend-; WHILE PLAYING IN
ing the two streets, @ move tO e&
tablish the capital in some other |

STHEET.
[

BELFAST, Feb. 16 --The day open-

{at Jeast six reports.

city might result. Addition of nine

sre heartily welcomed
‘cents to the present levy on the basis

be city this afternoon!

oran, secretary of the}

of present valuation wag one of the

ed with the death’ of a 66-year-old
child who was struck by a bullet while
playing {no the aireet.

A workman proceeding along Sea-

ently the driver waited ior UIs ,uie-
men. He drove away rather rapdiy
but.no ome got the license aumber of
the car po far as the authorities caa ee |
learn. ~- Sagn
Chase fe in Vain.

T.earning the. «a big Disek auto-
; Mobile was seen going through
, Craixrmooor and headed towards Buck-

iit was a car pene se to a local ua-
idertaking estanishment which con-
ducted a funera! in the Craigmoor
‘community Thuraday aiternaoon. The
description of the car. huwever, cor-
revponted with that of tBe bandit
1 Macniiie
' At least a dozen witnesses saw the
shooting actually take “place or saw
the bandits Neeing tmmediately af-
ierwards. Of those who saw the ne
men, John Mraz, former eily police-
‘men, was able to give the best de-
tcription of them. e waa fifteen or
|; twemty-feet from them when they
| ran down Water street.
Two Had Hifies. |

Mraz told the police and county

at the jail thar he would be

{

| oMoers

,)oung looking, well dressed men and
j were short and of about equal height.
} He aaid two of them carried Wiaches-
‘ter ries and one a revolver, The
‘two with rifee were weartpg over-
‘eoatea and the one carrying @ revolver
wus without an overcoat.
wore light gray cape. Mraz says Qbey
did not run fast, but trotted Mong

All three: |

Water street until they reached (the
swinging bridge where they dteap-
peared.

Harry P.. Sturm, wanager, and
Laco Wolfe a aediesaman of the
C\arksburg Automobdile agrponeee
were eye witnesses of the t y

Dd

from the automobdfie concern’s piace
of -dusinesa.qn Water street, a few
hundred feet away. They were ua- ---
able to describe the men aceuratel Foe
but say five or six shots were °
and that all apparently were almed
at Napol.tano, the man killed. They
aay that the gunmen apparently had
Napolitano ‘marked, for they aid
not fire a ehot at James Papero, oF
Jaroes Little, who was with Napoli-
tano, having accompanied him to the
Mason hospital, where they saw
Frank Vesperer, Italian, shot by fomr
masked guamen tn Glen Elk, Sunday ~
night. ; ‘
Five Shots Fired.

Mr. Sturm said the shooting took
lace at 10 o'clock exactly, as he
ooked at the clock hanging in hie of-
fice just after the shots were fred.
He says he heard five shots. Woife
is not certain how many shots were
fired, While Mraz is eure he heard .

Paparo Napolitano and hé~—
were cating Oreakfast when they got
a telephone call to come to the hos- ©
pital to see Vesperer. He thinks some ©:
of the bullets were aimed at him, but
he escaperi without a ecratch after
fleeing to the hospital where he
cringed In fear.

To Hold Inqueet Friday.

Pr. B. F. Matheny, county coroner.
raid Thuredey afternoon after ex-
arulning the bedy of ihe dead man at

(Continued on page 2.)

TRAFFIC RESUMED; ..—

tee SE : r ei
NL iy fo

“ees

ommerce - here. The | great arguments adducted by oppo

@ convention wag de-| nents of the Jssug who claimed that

f owing lo the late ar- | the atreet improvements were not

of the speakers. C. W. | necessary.

jam, W. Va,, is presid- ;

yention. DECLARED UNJUSTIFTED.

| aeneenendl -_— pula vere

@ BANK CIAORES. WASHINGTON, ba 16.— Pro- DISASTROUS FIRE STARTED.

eae sails to reduce freight .raten on =

; Ore., Feb. 16.— The Poet ato Kansas City’ trom Kansas! HOUSTON, Tex., Feh. 16.

Portiand will not open and Oklahoma producing felda by disastroug fire started this morpn-

rad P. Olson, the presi- twenty-eight and one-half cents per'ing at Ellington Meld, the United
Vedneaday night. tan merce br southwestern railroads States army aviatiun fleld, twenty
lo bank examiner,| were declared unjustified Thursday | miles from here. Two men were in-
® to the = state-iby the Interstate Commerce Com-; jured wheu their plane crashed tnto

gon was giv for the |miasion. The achedules wore ordered the gymnasium and the fire which

ak has deposits of $3,-| cancelled and pregent rates maig-|jstarted was spread rapidly by a stiff
> 5

talned. breeze.

ford street, in the Ballymacarrett
area, was shot dead.

Youthful gunmen held nf work-
era in the Low atreet district and
wounded one of them. , :

«

b

— A

”

; j terruption caused by the derailment

CARS ARE DERAILED

WASHINGTON, Feb. 16.—Trafiic
over the Pennsylvania lines between
here and Baltimore had been resumed
early Thursday after several hours

ut Odenton, Md., of two cars on the
Buffalo express due here at 8:55 ; %
o'clock Wednesday night. Four per- baad
sons were injured, two seriously, and
several hundred yards of track was
turn up in the derailment, necesaitat- ‘
ing the routing of Ponnaylvania - ioe
trains over the Baltimore and Oa&lo po |
a until the damage was repalf = :
ed. weg

‘

mores es ere

velopn
favored the constructive side in
the atock market today. Sea
approximated 775,000 sharce.

8

- NEW YORK, Feb. 16. — 10:39
a. m. —- Contrary to general expecta-+
tlon, lowering of the Bank of Eng-
land discount rate was witho rt visi-
.bie influerce upon prices at the open-

ts at Washfngton again pwere LOUUWEE OF ab Brsgmess svar sewre ame

then by a rise higter (han before. ¢
Statements purparting to show that =~.
the dbmestic disappearance of cars ..”..-
has been at a rate wach greater than .*.
as generally assumed to the case *
gave independent strangth to the :
‘markets for corn.and oata. After..-
Kopening.% to Wc higher, May 63 Mees -
‘to 634%c corn continued to advanoe. -':
Oat started’ % (to: Se Up, May, =
i 42% to 43c, and then sagged &

ty

3

eGlyn's new

ri

ser Glya,

.

A cen in gu dramas
atalie Hays Hammond,
ebut in Mre
The photo ehows Mra

portrayal of Miss Hammond's

ee

Spree ee ee we eee ee

WHITE WAY”
~ PLAN TALKE

wee

Loewe cer ernty

»presentatives of Power

'LURED INTO TRAP,
MAN IS MURDERED

trua, page 1.)

a ee

he Weleh-McCabe Compabs’s tigi gue
that le would held
an {nquest sume tite Friday He
cald that bis caainfoation revealox
that Napolitano bad been shot at least
{Cur Wines.

‘
' (Continued
OB Court slroel

teasing of teading-olls und $.1pD.

Mies Natelie Hays Hammend, lef resctvia ‘1p several wee

Because Elinor Glyn believes that society
should be enacted by real social leaders, Miss
daughter of John Hays Hammond, has made her film
production, “Reyood the Rocks.”
Glyn and Migs Hammond discussing the
part in the atudio va the Pacific coase

The coroner had three.

ing of today’s stock market. Guing
and losses were evenly diatroute L.
} With the-exeepiion of Amuriiis Lo-
comotive., which broke one aad onc-
quarter points on the first traadre-
tinn cheyges were limited. to frac-
tions. The Met developed ot. firmer
tone within the firat half hour an

"Ves,

ccpectaily Mexican Petroleum ,
Nercanule Marine Prd. and Amer)
wan International.

Nooo— Call money Was
four per cent. the lowest

3 4c.
Jentiful at!
nittal pate:

a ,of vernment deposit |
from local bdnk#. Alternate reactions t—"~
‘and recovesies occurred in leading |
tetocks during tth morning, mutors.:
erd selected specaities being
}iatie. ,American Ice fell one
| tpree-fourths nts but quickly re-
‘covered «= Stndebaker, Qhandier an
i Pierce Arrow were under pressure us
‘the resul

‘an the automodile trade.
‘seasoned rails, espectally
Pacific. Atosison aud Readiak, estat 33
lized pusces again at noo, -
5. 1 30 p. m.- Apart from
per fasuea, which suffered frota profs
it-taking sales, follow soy, yesterday's
‘Yate upward 6purt. the gxeneral mar-
ket moved forward, especially Mexi-
‘can Petroteut, which sold at @a gala
af three points, Coucning ite higheat
price for the year. dieneral Elee-
tric improved almost two points.
‘United states government war bonds

withdrawal!

‘ers,

Buying Of ; aud

1Au

but reeovered. —

Provisions were sharply b
fected Dy a suw
market. :

CHICAGO, Feb. 16.—Buiter ea
and! — ex
yoe:

Egra Higher: receipts 11,677 cases;
ursts 25%gc; ordinary firets 32 %33e; -
ks, regardless of heavy: miscellaneous 34a sage. es

cnicado,
moat er- Ceipta, 12,000; beef steers, steady to«7~
and: strong;
i teers,

t of reports of further cuta. lower.

Bouthern | bulls, 66.25@ 4.60;
7h 4.
Hoxs,

the cap active, moatly 15¢ to 25c higher than ..
‘yesterday's average;
holding

10.50;
higher;
poundera, $9@9.25; some atronger.
weights, $9.50 ¢ 10. a

Sheep.
aicudy to strong; selieze mostly agk~ |

fret es

Asher, af- =
aqyange.inp the hog

ay

‘
. 4

CHICAGO PRODUCE.

tras 36%¢; Hrats T2 %
seoonds 28@30c; standar

nae

~- CHICAGO: LAY EXPOCK—

Feb. 16'—- Cattle. ree.

early. top, $¥; pULx, - peene>
$7@8.10: fat cows and hetf- .*
calves apd stockers and feeders. ©

ateady; canners and cutters, weak

te, :

bulls, strong; bulk, fat cowed
$4.35@5.75; buble, beefs
bolognas, largely —
Pg iEet, ot Strate

3} 0005 fairly op

heifers,

receipta,

big packers
ack; top. $10.40 on 16 to
bulk, $9.90@ -»
2be to §0¢-)
100 to buee’

pound averages,
pigs. moetly
bulk, desirable,

receipts, 10,000; slow, @

H ° vs 24 thirtys-Cwo wteei jacket bullets and @ touched consic erably higher levels, ng hikher; gat lambs to ackers,.
: Companies Meet with <‘icad nose bullet) tn his pomsessiv® Liberty first fours mounting miaetye carly, 315 @ 15.25: beat dane sold; &
fs. City Officials : One of the atoel Jackels Was found sex points to $97.39 and the rst geod shorn lambs, $13; choice, handy ice
es ° Lon the street abd the vthers Were IN’ 4 igs seventy polnts to $97.64. ‘weikht uwes, $3,35. ‘—< peer ex
fe Senet eee os ee . i Napulitene s at . Unite? Btaies Slee), General Elec- | a ve Se
Plans for turning West Pike and One of the bullets entered Napoll-Stric, Mexican Petroleum and special j CINCINNATI LIVPSTowR. Hi
recta Into a Mite Way rang jaw on the left wid= and came Sty’ made higher prices later bul, i oe {fe hae
cussed at wo mecting ef tha Gut through the right mde of HOS. reacted moderafely oD _aviling of; CINCINNATL Feb. 16.—-Hogs. re- >
ye Mey Pod pki yf ons hd nxuli Une pierced eee: * ee bie ‘rusia, The closing Was irregular, leeipte 4,800; steady to 25¢ hjguer. 23.
gana Electric Company, the Mo- qnrough his heart. Thete also tae oem ne A tteavies” 104 19.50; packers andae>
Sgahela Power and Railway Cote guilet wound im hia right side and | NEW YORK STOCK LIST, itutchera $10.50@10.75; pigs and...
Poitice Pcie Me cgejei i eee te es Lg ey ore pacer ei jughte $6.50 q 10.50. at wn
foffice of City Manager Marrlsu Leaves Wiluw and Children. (Last aale Feb. 16.) | Cattle receipts 600; steady; calvda 2:
Be corn th ides peeks’ Napoiitano leaves » widow abd Mve; ania-Chaluera 0s ak = *30c higher sais COT bdo ee ol
; esent plane cali for erecé) cai: children. The oldedt {4 20) American Heet Sugar ..-- 46% ©" Sheep receipe 300, strong. Jamba:
er sere ee fort 18 veais and the »vupKest ao infant Hel: Amertean Can oes cee cee 89 ws Sue higher 384 15. “ez Soc
ight eee mere be Ppa hit oid enough tu Walk. Other survivurk | americag Car and Foundry. 148. eins Sagi ge
Bie tore ante stistlar te (hoe@ oy oiatives of the dead man afe. Larry Aguerivern Hide and Leath. pfd. ob? Pi : AVESTO“ =
vin use in Gof Plaza, The ap y hit ~ tarts Naples, a pool! ; iat teneoaary. (44 TTSBU IVESTOCK,

‘hit apulitano or Larry \apees, | rt) Amertean International Corp, 3 come mee
frinate coat uf ach pole 16 $176, rym proptictur. and Nicholas Sapoll-) Auer.can Locomotive . 0. WZial PITTSBURG. Feb. 1¢-— Hogs. res
Quding the cost of the fAxtureas. : t Kelly Mail : ; : tie ea & & i

will. uerve. bottr the: H1@rkeRGll) anes miner, both of Kelly Mail. ot American sinelting and Keg 88 le. ceipts 3.500; market lower; heavies
a FE as oe b Sheric Lace b.. Young, tu charge Of American Sugar es oe BHA g10 15G 10.35; gheavy yorkers "ands
= eetrie 5 CibENee and (DO yee cougty forces, iaciuding deputy American Sumatera Tobacco... 2 34" tippe yurkers 10 70 @ 10 195
neneeie Power and Hatlway. perige and state police, and heel Amerncan T andyTegsencer DIS Se bas 5010.26; 4 Sonne
: sat ‘heth N. bapplogton, chief uf police 11” American Woolen. os: pee SST Shee and lambs, receipts 2
Pj Le. Pe cel ances ps elle creer: polic® | Anacouda Copper es core ae . teehee’ Mendes yop aheep et
ch, : oe a omhcers, afte co-operpting du the Cae@& f Atehivon. . - 5 tne Pun ai See a eta ee anceenamatl
joe grees pe hate Ot ine oa officers were given rigta natructions Au. Guilt ands Ree OT Ny retoles 915. Sei 4
‘ Poe tli men Fi HL eek taka everyoods into custedy they” paideta Loeomoure "2. Bae PO . UR |
peti abate hs oe eS ruspectrd ap Knowing anytatng about aitimere aod Ohio... . mae (same Ce LIBERTY BOND®, Oise es |
ast tel eas fe - roe agers ‘ 7 the tragedy. bate Thursday aftor- pPethlehem Steel CUS oo eae: td de ba NEW YORK. Feb 16 -=-Libe |
: ae y na ew . el : ayy TMM LOtet italians had Leen taken-fo Gyncdeay Paetme oo ores Age ; rae lk “at ih iar ‘ |
Red. aleo that bes sumpany te wit ; : " . nonda at noon- Btys $96 96) firat i
Rig ftemose the prement wooded it peenty al) und locked In SODA Central Jenthers vere we AT) lay T to: second 4hq $80 TU. frat 448 |
ee and make olber necessary rats pn ae gts a Ne xg Ros ope by Chanales Matyts o bee ane ee 4 y.: second 4%% $26.99. third
: ip ‘ i rgveie ariliing betore the davis evel. Cherapeake and OIG. +. os Tle gun yt ‘ nie ay 6001
wh te funy. to matalling (Be ry panies of thosn arrested are WIR Gntegsc, Mil and Br Paat’, 20% rinks Peas Gioe; nian ye
Due to the fact thar the traction Held by ihe Luthotities tn order Uist (iveage, Ro Lv& Pao... 60) 358 tgrouie vo leg
Bpane woult veces onty ta mins Meneses Hey Yt Sieilakaiesae con! en oar rhig seu hers eee ee ee a eas ena tai #
. t allatt: ¥ f tbe Bointerruprec “Cah rade Fuel é& Tron we ee 27 ana ia : i
MH Aaete Mat ve bear Me tee é gee ty — a a foe Cot Products co cece ees 197 Se _M. M. NEELY WILL ‘ - -
{o yf the expense aA the tight it fe helleved Dy the of cele eye Nvriiritite Stehioo new eas an 61% : ; ie aia at ‘
dl wv c. eine. leelgatiat Sihe inurder he Joseph Ceneth; se ( uta Cane Sugar ce gee so eee 9 ASSIST PROSECUTOR,
of the cat ny, stated the cot- en OOUIN abd werlotions wounding Of brie . a, ag MW Lic elavk. wots fue. : i oiveh aren : :
by ia witite 10 he a part “st ho Mrs. Frank Capparrotta; the ehoot- Celneral lecerie obec cee es 149% b. PAIRMONT, W. Vi., Feb. 16. Y
tt of the new system, but that the !0g of Frank Vesprrer Sunda) night; General Motor heap aes eee KAY: MW. oOM. Neely, former congressman
factors will have fo confer upon Ode murder of Ube italian mierchane al arugdrich COO Le eee eee 37.80 (raw the Erect Weet V irsie dis-
matter before definite’ arrange | Kelley Hill fast suaimer: atid possi: Great Northern MA, oo cea sy. Toby 5 ICO Was tedayY nained a aprcial as-
Mite Are Made. \ ihiy the murder of Adoiphus Walker, Great Northern Ore Cte. vere 85 be ,nistant prosecuting attorney for Mar
The plan oneludes the inmallation | colored, a Glen Bla hotel porber,: Hiigeta Centrap . oe eee 102%. jon county to conduct any cases tbat
fthe new vietal poles train Bik whose tutilated body wus round dnspiratlon Copper o....+. 38's B may follow the submittick of the ce
1ek to Angie inn on Weal Matn | long the Bridgeport toad weverad dnc Mer. Marine Didi aeesae. TPG port of the Marwn county crimina
; nd fiom Elk Creek to Sash i menaths ago. are Chowel\ allied Internaiional Pauper cc.eeeee 4A eoaes comipiiseton to @ special BeBBION
mn Weet Pike etreet Inatal i The aheri@® and the chief of puller Kennecett COPPee so. ..- pee te ‘of the grand jury today The reporé
af the eystem will begin aa! Have given rigid Instruction, to all Loutavile & Nashville . 2... 112 bg deals with the cuel of bis U pole gal
peer the plans are approved the oMeers tao arrest every person Mealean Petroleum oo cee ee. D2 By a lie and with the a ke dg
Stein tons comes sed : nuspected of Knowing wos thane about Miami Copper ieee ae Ree TO ae, peices demanded by 80
? the murder of Napolitana Clone a Middte SNeaten OL. Vie & OL hecesitaties fn ComparisoD with
. nt . hoe. . ; "Mid nee prices in ofher near by townb, Majer
half hundred offteern,s were buay work Midvale Steel oo... ° Rady
~ Ving on the cane Thursdis afternvon, Missourt Pacifle 0.6... ee: 19 Necly presented Che, repury Of the
i gee ee ma New York Ceoatral oo... ne "umes Ne rcommision ta the jury. + Ope 4
i FOR CRIMINAL ASSAULT BROKERS OFFICES CLOSED is YON ED and Hartford... Vi ty GUILTY OF SECOND NAN Ne
5 { : g ll is “Norfolk and Weatertow..- < road, Si. ‘ ;
; ! west SIR es ae 4B ete, Novtherm Poetlie oo. wee es 93. iy . ae
H 2 aes eer” PITTSBURG, Bet. 16.—-The Pitts. Oklahoina Prod. and eto cys ° ‘ f “ DEGREE MURDER
idict te Ch Abduce burx offce of Anderson, Brown and 4, ; Ye i
ments arge ! 5 Ee ge et uN ye ines mae t ag Atnerican Petroleuin Rte RTT satyianimaaamtiae

+ Peers —

FSeCre++o+te?e e+e

ADS

peteereroeee

an of Tot; Mo

CoPTH SH OHE

aie

Ferri’s Bedy to Be Taken to
Braddock; Others te Rest
in Prison Cemetery.

(By a Staff Correspondents )

MOUNDSVILLB. Jan. bd. — For
the first (mo in the history of
West Virginia three men hanged
e:multaneously at the state pepi-
‘ Cent.ary lay in a morgue here Sat-
urday a short distance from the;
' death house where they met their

‘

a

doom at 6 o'clock Friday after: i
} 4 povn. \
e' The men were: Richard (Dap-!
. Per Dick) Ferm, Phulip Conntsar-
_ fo aud Nicholas Selamante, Black
| Handers, who: paid the penalty on
[the ecaffold for the murder of
4’ Frank Naples, Kelley Hill barber,
rd killed February 16, 1922. on o
ne’ street in Clarksburg. The mur-
i der took place when the Mafia

te-: warfare was at its helaht ind

a\ Harr.son counly.
be Trap is Sprung. |
ih The trap which sent the men
4 to their dewth was sprupg at
jf '@rmctly 5 o'clock. In company
‘with their spiritual advaeors§ the
pn: doomed men were led out on the
t platform by Prison guards.
bs) “fay God have mercy on your |
ps poor souls,” said a black robed |
H i/preon chaplain and as the leat |
fn-! word game from his rps the dDiack ,
-"ceps were siipped over the heads
yi of the inen to be hanged.
br Richard (Dapper Dick) Ferri
1x; Was in the center of the group.
nilils eyes were closed, his head
‘hung down and his face and hasds
we. were of a ghastly veilow hue. His
PS huaods and his legs were Lied se-

!
}

:curely and tt Was apparent Chat
jhe had collapsed; that he could |
3; not stand up without the support |
fr ‘of the guards that stood by hia!
| aide. The once bandsome Little
Genk eyed Itak:an was a mere
n| shadow pf bis former self and
did not look anything Kaka he did
| when he was on (rial in the Har-
fal son county criminal court last

HANDERS HANGED

--

ui ceo PENITENTIARY

a paoren eee eoee

1* WOODEN LEG KAVES
MAN FROM DROWNING;
ACTS ASN A BUOY.

_— ——— ——  «

Cree eee were oe

LOGAN, Jao> 56.—His
stout wooden leg saved Jim
Johnson, a negro mule driv-
er, from drowning in Dina-
gees run ‘Friday, when it
acted as a buoy. Jobnson
war thrown from the back.
of a mule with which he was +!
attempting to swim the #!
swollen stream. He was res- $}
caed after he had floated a
with the aid of his wooden +:
leg everal hundred feet +)
down stream. = +:

Came seee eee

LETTER TO DIPLOMAT
FOUND IN BOOZE RAID

FEETEFOtttGTO

SEE tttettete Otte

Retates to Releana,frema. Ware-i-
house of Three Barrels |
of Whiskey. |

ee i

WASHINGTON, Jan. 5. —- A!
typewritten letter addressed to a;
diplomat relating to the reloase j
from a bonded warehouse of
three barrels of whisky was
found, police announced, on the
person of Johu J. Lynch when he
was arrested last night on @
charge of violating the prohibi-
tion law. Imported liquors of
various kinds worth $4.509, at
| bootleg Prices, it was said, were
| captured in a gaid on Lynch's
‘apartment, and a penciled list of

Dames was tuken. :
{ Frank Ceccarelll, who descrtt-
‘ed himself as a fight promoter of

; Boston, was arrested with Lynch.
af [ne were caught, police sesert.

Asher, fed-
ina trap ect by Leese who tele-

ts
i April. 4*Da r Dick" wea Qteus- LO’ ANGKLAS, Jay! 5 ve’ rea noble desire to protect the screen: eral prohtbidion agen os
Fe rei in an. black prisph cult, | pervons are wm artiog tae, het actrees tenpied with a desire to phoned the'r ee oe
j,and ,a black apd white madras; they tergied the jujusiies of « oit- save his own life, constituted his, ing the quatts of It-
st | shirt, He wore @ biack tie His}|ustion Created by the sLaotluER sole molive for the shooting. | esal, order
ra left eye was bruised and turned Here last Tuesday night of (Court-: As for Dines, the injuttice of ' guor. cia

bu) black as the result of being ‘land $3. Dines, Denver oll operator che situation as it affects him, te |

mei atruck by the rope. and club man. ‘evidenced tn his statement: tens Taken toward

bit a it

AST ae a att

. er ey te 5 a ee edd ae * fotety Bante wane ee eee Poe Te TL. beater’
Re gt ve hc a iy Sa os Ae ala li le i ae bo aaa .

114 W. Va 171 SOUTH EASTERN REPORTER

intermediate court of said county imposing
sentence of death on Joe Corey upon convic-
tion of first degree murder of Katherine
Ghiz, the defendant prosecutes this writ of
als Jest Virginia. error.
ee ST yen Se proba At about eight-thirty o'clock in the evening
OF SANE of July 11, 1932, in the store of Saleem Had-
ici dad at the corner of Delaware and Virginia
pent eet Lites decedent and an- Streets in the city of Dharsenten, gm 0tid
other at same time, evidence of previous ant shot to death both his wife, a Corey,
threat made by accused against the other held and Katherine Ghiz.
admissible as disclosing animus actuating Kil: The women came to Charleston at about
ing of decedent. six o’clock the evening of the tragedy and
went to a private home on the opposite side
an Hemera sek killed at same of the street from the Haddad store. Mrs.
bs! neater gal wale sts t to kill Corey and the defendant had not been living
cients of together as husband and wife for some
o months. She lived in Huntington, he in
Charleston. Mrs. Ghiz lived in the city of
gan.

3. Criminal law C= 1165(1)- The defendant went to the Haddad store
Conviction will not be reversed for er- soon after eight o’clock in the evening. Only
ror not prejudicial to eceunted, Mrs. Haddad and her young niece were there.
Presently, Mrs. Haddad answered a call on
the telephone which was located just behind
1, Where accused assaulted and killed a partition across the back part of the store,
decedent and a third person at the same time, the partition not extending to the ceiling of
evidence of a previous threat made by accused the room. Mrs. Haddad is a Syrian woman
against the third person is admissible as tend- and sometimes has difficulty sinderetaiatias
ing to disclose the animus actuating his kill- our language. Not being able to comprehent
ing of decedent. what was said to her over the ee . om
2. As a general rule, an expressed intent asked Corey to take the — He mis
of an accused to kill a certain person is not and told her the call was for ee ee a
pertinent on his trial for killing another, but and that she was at the priest's ae . a en
it may become pertinent and admissible un- the street. Mrs, Haddad smnenes _— y wee
‘ise circumstances showing connection be- her niece for Mrs. Ghiz, Who, wan Se ea
tween the threat and subsequent conduct of ey, came at once to the yao wi ath Ps irk
accused, and where both persons are killed at The defendant — - “y =< dns pes
the same time in pursuance of an evinced in- room and as Mrs. oon a xe sa ws Aad
tent to kill both, reference in an instruction the women back throug A : we dl vce
to a decision by the accused to kill one or the them the location a ae - — . AAR =o
other must be deemed tantamount to a ref- cated to her by , ey ce Ath 0
crence to a decision to kill both. disclose that he was there. , rs. a BP:
3. “A verdict of guilty in a criminal case poe pa Rane msi Sayveg gt ee
of es Fa b “reversed here because of error chambers ; , ; i er. eee .
phen ete ‘by the trial court, unless that er- we sent gid Somat apy ing eh
| siaing oe epee °y re ee a . I will let you die first.” Four balls
Real, Re ee ee penetrated her body. She fell dead. Casting
aside the revolver he had used, he drew from
his pocket another one which he directed at
his wife. Four bullets were fired at her and
400, Caney. S59 convicted. of first-degree two cartridges failed to explode. To her he
murder, and he brings error. snid: “You want a divorce? Here’s your di-
Affirmed. yoree.” After she fell he used the second re-
volver as a bludgeon with which he beat her
face as she lay prostrate on the floor. An of-
ficer rushed in from the street and arrested
Corey before he had ceased beating his wife.
She died of her wounds.
Comment on the horror of this affair would
be superfluous.
There was no denial of the homicides. The
defenses were (1) that the defendant was in-

STATE v. COREY.
No. 7715.

time in pursuance of evinced in
both, reference in instruction to d
accused to kill one or other is tantamount t
reference to decision to kill both.

Syllabus by the Court.

Error to Circuit Court, Kanawha County.

Salisbury & Lopinsky and W. W. Wertz,
all of Charleston, for plaintiff in error.

Homer A, Holt, Atty. Gen., Kenneth E,
Ilines, Asst. Atty. Gen., and A. M. Belcher, of
Charleston, for the State.

MAXWELL, President.

From an order of the circuit court of Ka-
nawha County affirming the judgment of the
ad KEY NUMBER in all Key Number Digests and Indexes

G=For other cases see same topic an

STATE v

y. COREY. W. Va. 115

171 S.E.

sane at the time of the tragedy, and (2) “that
prior to and at the time of the commission
of the offense, he was intoxicated to such an
extent that he was incapable of entertaining
the elements of murder in the first degree:
wilfullness, deliberation and premeditation,
and did not become so intoxicated for the
purpose or with intent of committing the acts
complained of.”

As to insanity, there was a sharp conflict
of testimony. For the defense, both lay and
medical witnesses testified that in their opin-
ion Corey was insane when he killed the wo-
men. But several physicians and numerous
lay witnesses called in rebuttal by the state
testified that in their opinion the defendant
was sane. This conflict presented a question
for jury determination. In our opinion the
evidence justified the belief that the defend-
ant was sane when the homicides were com-
mitted.

As to intoxication, there is no testimony on
behalf of the defendant that he was in fact
intoxicated at the time he committed the
crime, though evidence in his behalf tends to
show that he had been drinking intoxicating
liquor that day. Several witnesses called by
the state testified that immediately after the
homicide they observed no indication that
Corey was intoxicated. Mrs. Joe Solomon
testified that the defendant talked with her
at her home on Virginia Street about one-
half hour before the tragedy and that he was
all right then, and that though he was close
enough to her for her to have smelled fumes
of liquor if he had been drinking, she did not
detect any odor of intoxicants. The issue of
drunkenness was likewise for jury determina-
tion, and, in our opinion, the jury was war-
ranted under the evidence in resolving that
question also against the defendant.

Numerous errors were assigned. We shall
discuss those of which consideration seems
necessary.

Over objection of defendant, a witness, J.
W. Perry, an attorney of the city of Hunting-
ton, was permitted to testify that two or
three months prior to the double homicide,
the defendant told the witness at his office in
IIuntington that he (Corey) was going to kill
his wife. The basis of the objection is that
on a trial of the defendant for the murder of
Katherine Ghiz it was irrelevant, improper

and prejudicial to admit evidence of a threat
by the defendant against the life of his wife.
The defendant consummated his threat, and
more.~ The double tragedy was one affair.
While ordinarily threats made by an accused
against one person are not admissible on the
trial of an indictment for the murder of an-
other, that rule cannot in reason be applied
where there is direct connection between the
threat and the crime committed.

[1] Numerous cases disclose that on the
trial of an aceused for a crime against a par-
ticular person, it is proper to admit evidence

of the accused’s threats against another, pro-
vided, of course, there is connection between
the threat and the crime. State v. Fox (Ida-
ho) 16 P.(2d) 663; People v. Craig, 111 Cal.
460, 44 P. 186; Rawlins vy. State, 124 Ga. 31
52°S, EB. 1:

,

In People y. Wilt, 173 Cal. 477, 160 P. 561,
which involved the trial of accused under an
indictment for murder. the court held:
“Where accused assaulted decedent and a
third person, and the third-person was
wounded by a shot fired by accused at the
time decedent was shot by accused, evidence
of previous threats made by accused against
the third person was admissible under the
rule that while threats against decedent are
admissible to show malice, threats against
another person are only admitted under cir-
cumstances showing some connection with
the injury inflicted on decedent.” <A fortiori
is this true where the accused kills not only
the person threatened but another at the
same time.

In our judgment, the trial court committed
no error in permitting the witness Perry to
testify of the threat made hy Corey against
his wife. It follows that the incorporating
of this threat in several hypothetical ques-
tions propounded to different witnesses by
the state on the question of the mental con-
dition of the accused at the time of the homi-
cides was not error.

In a hypothetical question propounded by
the state to a defense witness, Dr. Philip-Jai-
sohn. among other things, it was recited “that
on the day of the shooting he (defendant) in-
quired on two different occasions of the chauf-
feur who had brought Mrs. Ghiz and Mrs.
Corey from Logan to Charleston, where they
were and if they were not in Charleston.”
This is alleged to be prejudicial error because
it appears from the testimony of the chauffeur
that Corey's two inquiries related only to the
whereabouts of his wife. We are impressed
that this inaccuracy in the said recital in
the hypothetical question was not prejudicial
to the defendant in the light of the testimony
that shortly before the hour of the tragedy
the defendant endeavored to ascertain the
whereabouts of Katherine Ghiz. Mrs. Joe
Solomon, above mentioned, said that when
the defendant came to her home about a half
hour before the shooting, he requested her to
call two different places and make inquiry if
“Katy” Ghiz was there, That he was looking
for Mrs. Ghiz as well as his wife there seems
no doubt.

Several hypothetical questions propounded
by the state to physicians contain the assump-
tion that prior to the tragedy there was trou-
ble between Corey and his wife. It is urged
that the record does not justify this assump-
tion. We think it does. A defense witness,
Mrs. Lee Ray Smith, testified that in the
months of April and May preceding the tragic

"CC6T-Q-cT (eumeuey) eruTsat, qse, pesuey Soqtym Seer ‘ZmH00

EE SEMEN ST es See ce eee cl in ae ee on ewe ee Te et ee ee ee te ee NP es ee ema tte

DAVIS, Wilfred, white, hanged W. Vae SP (Randolph County) June 5, 1903,

Dear Watts:

Recieved your letter of Jan 20. Thanks alot for the W. Va.
matetial! Should you order the film on the Chambers case write.-
Colson Hall Archives, WV University, Morgantown WV. They have alli
available wV newspapers on microfilm for anyone interested. The
State archives at Charleston also have such a collection, but I
um not sure if Charlestcn loans theirs on inter library loan.

The list of WV executions was very helpful. The Read and Tress
listed were the correct ones. Now, I do not know what you have on
the ones on the list but van elaborate on a eccuple. Perhaps you
already know. The Harry Powers listed 3+18-32 was known as the
Bluebeard of Quiet Dell. Powers was a man with a habit of marrying

rich widows and then poisoning them, and, burying them in a dungecn

r beneath his garage. At this time this is all I have on him. The Sam
Muratore listed 2-15-24 was hanged as part of the same case as Phillip
Connizaro,Salamente, Ferri, etc. Enclosed find copies of clippings

Ss cn that incident. Aliso, am enclosing a copy of clipping on Wilfred
Davis! execution. My grandmother knew: him well. She says that he
was an honest, christian, hard working young man who was essentially
railroaded by the law and should never have nanged. The newspapers and
eourt case file tell us otherwise. The real truth may never be known.

Also, I-fcund a couple that you may want, although I cannot
confirm at this time. The Nov 27, 1976 'west Virginia Hillibilly'
has two: Milly, a siave girl, hanged in Moncngalia Co for murder of
her masters son. She was sentenced to death and hanged Sep 1, 1798.
Another: Slave Joshua, hanged on Falling Run below Morgantown Aug
27 1827, for assauls cn white woman. The Milly, above was a slave of
David Rebe, 2nd Joshua was a clave of James Collins.

afpeina of mine has done several years on a vrojeset similar to
yours, Gocumenting every death for any reason ‘n this ccunty before
1904. He tells me that he has found no evidence of execution here +...
legal or otherwise prior to that time, except the lynchings. :

Will close for now. Thanks again. If you have any questions,
tet me know.


WILFRED DAV
, HANGED

committing the murder.
Wrote Letters to Frieads..
The condemned man on) Thuraday

LAST EVENING

~ The march to the gallows Pesaa at
ralout § 23. ‘The procession was int by

stairs feading up to the eeaffold War-

a firm step. The prisoner took bis po
pattion, 96 Airected, on the tr3p coat

; ta the fight. His countenance wore &
‘ . 7

tmade a quick survey of the audbence.
As he totk his position om the trap
door Guards Sheets and Bioyd imme:
Cistety began adjusting the strape.
While the straps were being adjusted
Davis was asked by bis spiritnal ad-
siser if bo had anything to say. and

then satd ta htm: “Now, Wilfred, you

ug Capt.0. WoDawedd, folloeed by Davis. |
who wasked between Warden Had4ox .
Land Rev.~Rgbie. At tha foot 6f the.

STEhY wea pleasant expression and- he -

Tereplied tn the necative. Rey, Ruble |

y ; =hief = wrote several touching letters to a few |
' ' of his friends and -\relatives. |
outhful Murderer of Chief of P 3 |
Mur | of Police Marstiller';. two tewee to am prot.
i rs -er, Cowen, he said his present
Pays Extreme Penalty. ' predicament was the result of whiskey ;
mapee S * i and advised his brother to take warning |
, : : and cease drinking intoxicating liqaors, |
Expiated Crime on Gal- | :
Those Who Witnessed the Execution ;
lows in Moundsville; Those on the scaffold were: Warden»
. " | Cc. E. Haddox, Prison Chaplain. Rev. D-
Penitentiary Annex Be-. W. Ruble, Rev. B. M. Spurr, Capt. C. S:
fore Crowd of Spectators. Dawson, prison physician, D. W. Stew-
art. Guards Bloyd, Sheets and Knight. :
There was am unusually large number |
DAVIS DIED GAME present to witnees the execution, over
70 in all. They are as follows:
Wheelinzg-— ¥
G Jeffers, Joeaph Atherm
Bravely Walked on Dro PL Miser. ia tom
Albert F G x
ibe rt Redm2e, ecTge Newhart,
and Said He Was Not De B.S Game. eae Pigeeseta:
s 4 Rerjamiu Rasta, J. w. Fhiltips,
Afraid to Die—Showed C. Reater. CThaces E Kata,
| Fa Site, «eA too
Great Remorse for Crime Ficus pesnenies, | Laren
erg oil, Raiph Buskirk,
arden, ,
T H N me ING! Moundsrtlie:—
: ‘i Dr. Liggett. K Gambdie.
OUC ING PART / } Lf < Rogets, Keone Gas tom
~ ’ ° £42. & rue
oe 5: @ WILFRED DAVIS. S it. Byrus. Caries alee
Wilfred Daris, the convicted mur-! .piog of police only ‘a few days bef F. Ww Aaetae sous kee berger,
a i+? 3 J wondiaten’ § { bs Ore. | B.C Grissell, + 2 Mrg Dates, a
oe of Chief of Potlce Marstiiler, of awhile officer was taking him to the; Thotas Ko Mitebetl, Arthur Milter,
Bikins, explaied the crime upon the gal- city lockup. Davis was drubk and bad’ Jesse Crimmel, Miltca Bonar, *
tows Jn the penitentiary amnex, B a4.n gbrotin : ea: ¢ LBS Jenner pits, a
~ Kg on the streets. When{ M A. Jothfte Lamor Poweil
Movcndaville, yesurday evening. ib arceatal Le.went peaccebly-to the tock- | ©?F4* Rerthton,  -Mecry Tempietos
“Tha drop accurred at 5:36 o'clock, and py), bot ag Marstiiler was about to put fone, Bieont na | casepbatl. >
bé was pronounced dead fourteen miB- yin in. he eald, “Page let me go or sou | 0. C. Wiiend AY Serna Be
uins later, Death wiidentiy came paia-} ye » eid trouble.” Tt Sivtersvtites— os Leg
iessiy, as an examination of the aye ee cence Se esas sph ai Means, | Mayer H. 0. Meek,

* he 7% +3 / % ras afer Sie SrRSeig: hee = ’
ae poh a oe lata Lehi a better hid Davis. when he drew a pistol J. Ho Wisc a <= '
ede nerk had been sroken wy the drop. and fre the dati taking effect above BM: Mor ben =a e : 2 *.
The March to/tne Scaffold. PRE ae a. T. Shep Ww?

= pA dewes . ithe of gi et ear, MarctHler sank Er, Cleirectiieo— &

“hours later. } Jota Yostec.

ito the’ g und and died fire
i> Besiaire:—

ee

; - rT fy ia es
ttt ty nqperally belteved. that Davie yyw L sertbich ~
beothe; was heiping the officer I0j 7 ee — TOYS”

5 Ww Benet es

fm, handed Wilfred the pistol.
, The qrespapermen pre <i were

at the @ had soarched his person .

j befure it g with him to the lockup. | 3 at 6 ae: — wie Tears

; After the shooting fiavia fled to thé | Roeett 52° Carrel), Fietenor Ruckmas,
Hash eundsrilie,

Whreiteg, .
J, ye Shaw, Moanéeritic |
The physictacs In attendance from
Moundaville Were Dre, Houstos, Btew-
art. Sirietdch and Rogers. The guards
an lolher prison cfMficigia made up ihe
resroof the attendance é

}

|

yimmetiately after the murder, gvbn at-
reste? Aim k*O miles from town A!
‘moh formed for the purpore of lynching i
Davis. but WAS prevented from taking |

‘ bing froms the lockup. ee

j ee Fea re REA ANE

ti eae! Hia History. : “ ay x HPSS TS ca Se
- 2 4 re oh Saal

L..Wittred Datis was uf a good family, RE MOLAS iee L RE

‘hia father Was m- Methodist minister i}

SE ed, OP

and d{et about fifteen years aro. Hts (1%
-qnother diel afew years later, Wilfred hee

was .ahoat 23 years of age. ite has @ : % ec s 25 aes
i Serothhr who reskies Ell { PL 9 ei cme SE :
‘brother who resides tn Elkins and a LCS Sa ee

<a fs

ae


Ps .
a!x *
s thease
Lu Rap

arpas.des
tora have |
p bas tr

iT money |

‘whe had taken .charg

: * . _ x
tf 45 e eS Ee Lord SRO Os

wa "aven ST w The anc ?
RON a fl y ctawn over his face

Rev, Rutile thon made a Brief prayer.

ate AS Be coset. ¥ é P “ame
aot. Pgason touchred th mu ON
rap fa were released wlth a crasn
az La is m unt thravga tae open-
“4 a Sash, falowed:. bra
thed. and the tedr of Wilfred Davis
ait sm Dies 4 4
No mat ever met hie feath mor
opavers Ran Tavis Tl Sas ma utaine
at ail times that he never Kis
feared iri jie certainic emen
giraied fhe truth of bis statement.

ttary Davis Ree at to time given ev)
Orne of having the least fear- of bis
aprrcaching tlm. fie met his Geath
rhe rrplieet of any

eriminal every hanc-

ett the inattation, He aeppeared to

e posal eRe from fa te
ewer eo iste ‘ a= ’
= s a

He arose about & c'clock yesterday
erid he had slept soundly

i
ali nigh’. He sat down to @ euinptuous

tresakfast at 8.30 and ate a hearty
i weal Kev. DW. Ruble, the prison

chapiain. who has been his conmstan’
spiritual adviser, called on hima Jittle
tater, amd was bin constact companion |

The fore part of the morning war
spent try the two men itn PAalms anc

vrayer, fullowed by reading and con

‘yversaiica. Davis was im a particulary

jovial mood and teok Keen delight in
eracking jokes and relating bis ex
perience while working at a lumber
camp.

At t2 oitiock he and Rev. Ruble took |
Unner fogetber. The spread was an
elaborate one and waa prepared by

i Stra. Thompaon, wife of one of the

guards. Davis laughed and joked al

most consiantivy while eating.

The afternocn was passed ia prayer
snd reading irom the scripturos, the
other two condemned murderers, Tom

ltTueker, colored, of Parkersburg, anc

Eugene Herzog, of Grafton, taking
part in these services. |

At 2:36 o'clock Davis and the chap
‘ain started for a stroll abcut the yard
and concluded the walk by goteg to the

hath house, where Davis bathed, don- .

iged a new suit of underwear, after

| whick he was conducted to his cel!
'

f where he finished dressing and prejar-

edt bis tollet for his march to the feat

' fold. i
Siurper was served at 4 o'clock, and |

Davis, as usual, ate hearty, finishing on
fee cream ant cake as a desert. About

{s-$5 ovlok the sacrament of the Lord's

Supper wes administered by the chap

icain, which was foliowed by song and
} prayer until the march to the scaffold

bezan. |

The Crime.

The crime for which Davis was bang
ed was a terrible ane. On May 11tb|
he shot-and kitted Pags C. Marstiler,
€ of the ae of

-

ee Se deel


« The Execution | at Charlestown.

Pxscunite OF THE : Haxotne’ oF Goor,
| Corriz, GREEN, AND COPELAND, AXD |
or THE ATTEMPTED Escare or —
“AND Corrie.
Ciaruestown, Va., Dee 15, me,
At hali-past 8. o'clock .this; evening |
two of thé ‘cehdewbed ptisapers,/Qooke
and Coppie, escaped from the jail aod:
were fired upon by the sentinote and
‘driven back to prison. They are now
in the custody of Sheriff: Campbell. |
The. prieoners: had mounted ‘the. jail
wall, when they -wero distovBred by thd
sentinel on thé oa ‘side, who Immodiatély
gave the alarm and fired upon them. 5)
‘They had sawed’ their mamacles asun-
ider with the blade of a "knife, which
they had concealed «nd made info a : fing.
eaw.. It is ascertained from sthelt comm,
fessioa that they have been ehgeged in in
preparing for thelr escape during’ th fie!
past ten days. They. made a. hole in the
wall near the window, which they con-
cealed with paper, hiding the bricks they’
removed under the bed. ;
Upon the a'erm being given, they!
made no resistance, but su rrendered 48°
soon as they discovered by tho shot af
tLe ecotinel that they were detected. ,,
The event has produ the utmost,
excitement here, and all ar@@on the ‘alert.’
Moj. Gen. Taliaferro is cling’ Gve-
rything in person, and will! maintain an |
univterrupted supervision of’ a ontil!
afier the execution. Y ace
We do not app:ehend any furbier }?
ficulty. "eS
‘The negroes, Shielda Green il Toh n
Copeland, have just paid the farfel Obs
their lives, The crowd in the: townie:
very great, and the execution. wRgah ;
nessed by 1,600 persons. At 9.9% fi
this morning the field wes. occapld:
the troops, and at7 minutes. ac OC OLOG Fe

by the sheriff, and, after. an anaes :
prayer by Rev, Mr. North, of thes Rreas
byteriun Church, they were. lat loDes
into eternity. Before the rope ™ as
Green was heard to offer i up a Tervent
pare Copeland was as bev Ary
| pray. ‘ “3,
? Green’s neck was broken ‘and hedied:
‘without a struggle, Copeland writhed
jn violent contortions for several min-
utes. The prisoners bade farewell while
on the sccffuld to the ministers, Mersrs.
Waugh, North, and Lock, expressing a
hope to meet them in heaven. The drop
fell at eleven minutes after 11 o’clock.
The bodies will be placed in the jail for

interment \to-emorrow.
Coben badtan -f at

‘he bodies of the two negroes, alter
beitg cut down, were placed in poplar
coffins and carried back to jail. ‘hey
will be interred to-morrow on the spot
where the gallows stands; though (here
is a party of medica) students here from
Winchester who will doubtless not allow
them to remain there long.

Tho bodies of the two negroes having
beet brought back to the jail at about a
i quarter to 12 o’clock to-day, notice was |
igiven to Cook and Coppie that their |
time was approaching, only one hour

more being allowed them. ;

The military movemeafs, similar to
those of the first execution, were re-
peated, and a wagon with two more

coffins was standing atthe door of the
jail.

At helf-pist 12 o’clock the same mil-
itary escort wasin readiness; mcartime
| the closing religious ceremonies were
| progressing in the cell.

Since the failure of the attempt ‘of
Cook and Uoppie to eccape iast night,
their assumed composure had given way, -
and they now lookedat the reality of |
their fate with the full conviction of its.
awful certainty. They were reserved
and rather quiet, but joined with fervor
in the religious ceremonies conducted by
the Rev. Messrs. North, Lehr, and.
Waugh. When called uvon by the’
Sheriff they stood calmly and quvierly.,
whilst their arms were being pinioned,:
and after bidding farewell co the guarday
of the jail were helped into the wagons
and took soats on their coffins, . Their}
appearance was rather that of hopgloss'
despair than resignation, and. they:
seemed to take but little notice of: anys
things the procession slowly,
on toward the field of death. v:
The wagon reached the'scaffold:

\giact

minutes before 10 "clock, and the”

ness scarcely surprssed by thar
Brown. A briet prayer was:
by one of the clergymen; tha:
adjusted, the caps ‘drawn over ths

gallows Ww ne
They both exhibited: “the:
filacbing firmness, saying nothing:
the exception of biddieig” farewe
minister and Sheriff. ‘Attar’ “ |
was adjusted about Cook's weekjhe “exe }
claimed, ‘Be quick as possible,®s ‘which’ ]
was also repeated by Coppa. 935s IRR oe
After hanging about’ 80 ‘minutes’ ‘the!
bodies were taken down. and. placed: in|
black walnut coffins prepared. for.them}"
that of Cooke's was placed ‘in &. poplar
box and Jabelod.and directed es follows:
‘Ashbel P. Willard and Robert Crowley,.
104 William atreet, New York, care of:
}Adams & Co.” Express,’ : The coffin-‘of ;
Coppie was placed in a similar. box,‘ to |
be forwarded to hiamother in Towa, a

GAZETTE, Nashville, Tennessee, December 18, 1859


a re

est
rae yp
3.

Day.

Ge at Char: estown, Va., to- een
at leavt hoped, win by the is
@rene in the Blocdy Drama
pric sed at Harper's Ferry. The
A daw calls for the death, to. day,

a
: pps, of Towa, and thé two negroes,
and Green, This mourning
Miserable creatures Jcuk for
)Ume ucon the beautiful sunlicht

ren, and upon the Great OJ No-

d pillace: This worning they be-
in ir lost thoughts Uron. dstant
e ben, and oon the creat calamity
Sg) at wpon themselves by their own
guity, and forthe Last tine tee
A Trove of Bourdless Grace tor ;
: Their writhing rnd then life.
js RDpdies svinging-to and fro iu the
wind uf this day will, we kupe,
E new vigur to evory admonition ty
e na, we trust, Salutury les-uu, to
‘traitor living beneath the shelter
RE Confederacy, welnet Which he
= reasonable dosivns.
In eaying sbove that (eve oxecue
lo day would be the fast WCene of
arper's Ferry Drama, we hud for
MoMenl Gverlouned the fwet thst
y Aaron C Mepuens uf Cotrecti

a
Le
a ‘Was tought at tie time tu be
ally wound. ey is in the liutils of ile
; to a8: ates authorities to bs ted for
7 The vvjert of this is 10 uae
d Beaters cutho:: Y lo terretou ace
Mces Chriusliuus ihe Uyi n, an
QM @ rich Held for invest ga’ ion
‘ai, AL takes place, which wil! be very

want ~The end is not yet.

eb Yoariosyown Lo-

aferrible ragedy is ta be

ae gallows, of Capt. John E,
Bs of Connecticut, Lieut. Edwin

fit. arom QVitedeing, and will be a

BROWN, John and followers,
hanged for treaston, Charlestomnn,

West Virginia, 1859

NASHVILLE GAZ
Nashville, Tennessee,

December 16,

ETTE,

1859


BaOW N, Jerry, bluck, hangedFayetteville, wv 7/25/1897

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ee


CATALOGUE OF FAYETTE COUNTY CAPITAL CRIMES 129

scaffold there. Then it was that Dr. Malcolm and Mr. Hinman
offered a site on the south side of the town. This site was chosen
and the scaffold built thereon. It was built in a chestnut grove
and out of sight of any house. A fence was to surround the
scaffold and only those permitted by the high sheriff were ad-
mitted to the enclosure. Guards were posted to see that this
rule was carried out. Promptly at 2:00 p. m. that June in 1897,
Clark Lewis mounted the gallows and was immediately hanged.

A Fayette County Execution for Crime of Rape

Jerry Brown, a thirty-five year old Negro of Richmond, Vir-
ginia, went to the home of Mrs. Arminta J. Radford at Deep-
water, the little river town in the lower end of Fayette County,
on the night of February 15, 1897. The Negro entered the house
of the widow Radford with an axe in his hand. After com-
pelling Mrs. Radford to leave the house, and terrifying her
with every step, Brown raped the unfortunate woman. After
committing this outrage the man left the scene of his crime
and made his way to Charleston. Mrs. Radford knew only that
the man who raped her was a Negro but felt she could identify
him if she ever saw him again. Some weeks passed and it
happened that a colored fellow was arrested and jailed in Fay-
etteville on a misdemeanor charge of some kind. To this man
belongs the credit of pinning the Deepwater crime on Jerry
Brown. He had seen Brown in Charleston unloading freight
and asked how come he was working there. Brown replied that
he left Deepwater on account of his having got into “some
trouble with a woman up there.” As the result of a reward
being offered for the arrest of the rapist, Brown was picked up
in Huntington. Sheriff George McVey and Harrison Ash
brought Brown to Fayetteville and placed him in jail. Mrs.
Radford identified the assailant who then was removed to the
Kanawha County jail to forestall mob violence.

When Brown was arraigned for trial his attorney was M. L.
Ryan. The accused pled guilty to the charge against him in
the effort to get a life sentence for his crime. This, however,
was unavailing. Brown was sentenced to hang on June 25,
1897. He was granted a 30 day reprieve by Governor George
W. Atkinson but that was all. At the expiration of the reprieve
the rope claimed its victim, in July, 1897.


~—

saz.

WV (Cabell) April 3, 1959

a

Sa

een

by BRI

HUNTINGT(

M@ Sergean:
open log b«
and yawne:
It was 5
tine entries
the marker
showed tha
ton, W. V
dead in the
and it was
until he fini
The phon
himself as
of Huntingt
“One: of
Bruner,” he
you can finc
few minute:
Smoot th
eyes darting
police cars
been given,
He didn’t
proceed to
policeman ir
wanted for.
Elmer Dz
search for f

THE V
LOOKI?

WHO D

INSIDE.

WANT!

q
«

THE PERAMBULATING |YAR

t 52

FRONT PAGE DETECIVE, ‘
September, 1957


She was terrified by the thought of what he might do

next, but he left her there’ and proceeded to ransack the
rest of the house.
’ Mrs. Hammock just wouldn’t quit fighting back. Grad-
ually, she worked herself free of her bonds, opened a win-
dow, climbed out and ran barefooted through bramble
patches to a neighbor's house.

The, man was gone before police arrived, but within
two hours a general alarm was issued for the arrest of
Elmer David Bruner, a 40-year-old paroled convict who
had built up a successful lawn-care business in the year
and a half since he had been released from the state peni-
tentiary, vowing to go straight.

Mrs. Hammock’s identification was Positive, and inves-
tigators quickly established a close parallel between the
areas in which Bruner had plied his legal trade and those
which had been hardest. hit in the recent, spree of bur-
glaries. .. .

It was one thing to tie Bruner toa renewal of the lar-
cenous pursuits that had earned him half a dozen convic-
tions since his first arrest as a teenager; bringing him in
proved something else again.

Bruner had been living with his aged and blind parents
in a rundown neighborhood on the east side of Hunting-
ton. He had returned to the house shortly after the Ham-
mock robbery, officers learned, but left again hurriedly.

Clothing found on bed was bundled up for examination by Detective Chief Frazier,

Toe iti

For five days, officers hunted the suspect without suc-
cess. Scores of tips were run down, and all proved fruit-
less. So Sergeant Smoot was not too optimistic as he sent
out two officers in response. to the: most recent inform-
ant’s call, .

Patrolmen Donald Waller and Bob Shy reached the
house first. As they stopped, they saw a man sprint across
the back yard, and took after him. He ignored their shout-
ed orders to halt, racing across back lots and dodging
through groups of children. The chase went on for nearly
two blocks before either of the pursuers had a clear oppor-
tunity to fire without risking injury to a bystander. Then
Shy snapped off a shot, and a moment later a police car
manned by Patrolmen Gene Patterson and Ernest Fox
swung around the corner, screeched to a halt and blocked
further flight... .

In the dispatcher’s room at headquarters, Sergeant
Smoot logged the radioed report of the‘ capture of Elmer
Bruner and advised the jailer in the adjoining office, Ser-
geant Chauncey Ward, that he would shortly be signing in
a much-wanted guest. '

Shortly after 6 o’clock, the calm but sullen Bruner
stood before Sergeant Ward’s desk. He and the. arresting
officers watched silently as the jailer catalogued the articles
that had been found on his person: a fully-loaded .25-cal.
automatic, a set of car keys linked to a miniature license

ad

Suspect later denied ever seeing it.

Claw end of |
story for Dx

“| DON'T

tag, a separate
on it, a small
“These for )
“And what’s tl
The big-nos
at the sergeant
the resulting aj
ly with his ro
height to be fin
pounds.
“Never min
easily enough.’
At 6:20 p.m
sary for booki
joining radio 1
office heard Se
Boulevard, an «
south side, to
Two minute:
sulting flurry i
attention. It w:
Boulevard .. .
If Mr. Brun
thing about ha
have been high
police departm


’

.

The Cleanup Spot

L. Ewing Scott, dapper as always, re-
ceived the news of his conviction on first-
degree murder charges with nothing more
than a momentary redness of the face, even
though he faces death in California’s gas
chamber, or life imprisonment. The case
was unusual in that the victim, Mrs. Evelyn

T. Scott, 63, disappeared and her body was
never found (Hoax, Shmoax, Where Is
She?, September FRONT PAGE, 1956). Scott
cleimed throughout the trial that his wife
was alive somewhere and that he would
produce her if given enough time. The
prosecution, however, asked the jury to
send Scott to the gas chamber, and Deputy
District Attorney J. Miller Leavy called
him a “cold, cruel and heartless man” who
did away with his wife, disposed of her body
and then systematically looted her $600,000
estate. The jury deliberated four days after
a trial that lasted 11 weeks, and reviewed
more than 1,000,000 words of testimony and
some 300 exhibits. Scott, who did not testi-
fy, was returned to Los Angeles from De-
troit after fleeing while under indictment on
grand theft charges—he reportedly forged
his wife’s name to gain access to her safe
deposit box. He was indicted on the murder
charge while in hiding.

Elmer David Bruner was granted an ap-
peal by the West Virginia State Supreme
Court from the first-degree murder con-
viction on which he had been sentenced to
die. Bruner, a 40-year-old handyman with
a police record dating back to the age of
ten, was convicted of murdering Mrs. Ruby
Miller in her Hunting, W. Va., home, and
the State Supreme Court just barely granted
his appeal request by a split vote—three
to two in favor of the appeal. Mrs. Miller

and a state pathologist testified that she had

@::: bludgeoned to death by an intruder,

also been sexually attacked after her death
(Case Of The Perambulating Yard Man,
September FRONT PAGE, 1957). By coinci-
dence, Huntington police had been seeking

ti a4 T fave z

Bruner on another robbery charge, and
they received a tip that he could be found
near his home. They picked him up and
jailed him at about the same time as prowl
cars were speeding out to Mrs. Miller's
home. Bruner was found to possess the keys
to Mrs. Miller’s missing automobile, as
well as two valises which police claim held
Mrs. Miller’s jewelry... .

Mrs. Gwendolyn Hoyt, 32, sat waiting in
a Tampa, Fla., courtroom as the jury re-
tired to consider the case against her. She
was charged with killing her estranged hus-
band, Captain Clarence Hoyt, with a base-
ball bat as he lay on the couch in their

apartment after visiting her and his child |

(I Loved Him So, January FRONT PAGE,
1958). Because of the background of mari-
tal troubles, and because the killing was a
spur-of-the-moment thing, the charge was
second-degree murder instead of first. Mrs.
Hoyt, who had been free under bond before
and during the trial, tensed when she was
called back into court after only 25 minutes.
The jury had reached a verdict. Looking
anxiously at her attorneys, Mrs. Hoyt
seemed to be begging for reassurance, for
hope that her temporary insanity plea would
be accepted and she would be freed entirely.

Soa

: BRE then acer +a
However, a moment later, she turned milk-
white as the jury foreman rose and an-
nounced the verdict: “Guilty of murder in
the second degree!” The conviction carries
a mandatory sentence in the state prison
ranging from a minimum of 20 years up un-
til life imprisonment. Mrs. Hoyt’s lawyers,
Carl Durrance and C. J. Hardee Jr., in-
dicated they will appeal her conviction to a
higher court.

2

John Lawrence Miller, 15, appeared be-
wildered as he heard a jury announce that
they had found him guilty of first-degree
murder in the wanton slaying of 22-month-

old Laura Helen Wetzel (Nothing Can
Bring Laurie Back, March FRONT PAGE,
1958). The vouth had first pleaded inno-

‘a

pie BG RUSS AY Ee
cent to the strangulation of the child in a
Rolling Hills, Cal., home . . . but then
changed: to a guilty plea. He had fled the
scene of the crime, and was arrested in
Reno, Nev., after a brief period of freedom.
According to police, the only motive he was
able to give was an “urge to kill.” During
the trial, Superior Court Judge Beach Vasey
asked the defendant, “Do you have any
hopes of being committed to a state men-
tal institution rather than prison?” Miller’s
reply was, “I ain’t hoping nothing.” It now
seems the youth was wise to feel that way
since he’s been sentenced to life in prison.

Mrs. Harriet Hurley, 69, a. grandmother
from Anderson, Ind., has been convicted of

assault with a deadly weapon for shootin
aa

i : \

her former lover and his bride in Phoenix,
Ariz. (They Didn’t Know She Was Loaded,
July FRONT PAGE, 1957), Composed through-
out the five-day trial, Mrs. Hurley had this

comment for photographers as she left the

Detrve /TprR / 2 ZIS SF

by BRIAN SCOTT

HUNTINGTON, W. VA., MAY 27, 1957

™@ Sergeant John Smoot glanced up from the page of the
open log book to the markers on the map in front of him,
and yawned. He wasn’t tired, just bored.

It was 5 p.m. Monday, May 27, 1957, and both the rou-
tine entries in the log book and the normal disposition of
the markers on the map (each representing a police car)
showed that it had been a pretty dull day in the Hunting-
ton, W. Va., police department. It had been absolutely
dead in the radio room, where Smoot was in charge. . .
and it was all right with him if things stayed that way
until he finished his tour of duty.

The phone rang. Smoot picked it up. The caller identified

. himself as a shopkeeper in Guyandotte, on the east side
of Huntington. (

“One’ of. your men asked me to call if I saw Elmer
Bruner,” he said. “He’s back in the neighborhood. I think
you can find him at his home . . . at least he was there a
few minutes ago... .”

Smoot thanked him and grabbed the microphone, his
eyes darting to the map to pick up the numbers of the

been given, in the 3500 block on Fourth Avenue.
He didn’t bother to use a code as he directed them to

proceed to the Bruner home. He didn’t need to. Every

policeman in the city knew Bruner’s name and what he was

wanted for.

_ Elmer David Bruner had been the object of intensive

search for five days—since Wednesday, May 22. On that

THE WHOLE TOWN WAS:
LOOKING FOR A YARD MAN
WHO DID MOST OF HIS WORK
INSIDE. WHEN HE WAS MOST

WANTED, HE WAS IN JAIL

\

©

ING YARD MAN

‘

police cars nearest to the Guyandotte address he had |

day a wave of burglaries that had been plaguing Hunting-
ton for two weeks reached a bizarre climax. .

Mrs. Jess Hammock, wealthy widow of a well-known
West Virginia attorney, was alone in her home on Hunt-
ington’s fashionable Spring Valley Drive. She was dressing
to go out when she heard the doorbell. She ignored it at
first, but when the ringing continued, she donned a house-
coat and answered it. A-man of medium height, dressed in
work clothes and a battered brown felt hat, stood there.
For a moment he seemed surprised to see her. Then he
mumbled an apology for bothering her and asked to use
her phone.

She hesitated. But recognizing him as a man who not
long before had done some lawn mowing and yard work
in the neighborhood, she let him in. She led him to the
phone, but he made no move to pick it up. Instead he drew
a small automatic pistol from his pocket.

“You just do what I say and you won’t get hurt. This
is a holdup.”

He pushed her into a chair and kept her constantly in
view as he searched the room. Then he began to give more
and more attention te his looting, and she took a .des-
perate, courageous chance. When he turned his back, she
ran to a desk and snatched a pistol from it! However, he
heard her move and, plunging across the room, tore the
gun from her grip before she could aim it. Enraged now,
he forced her to write a check for $170. Snarling curses, he
shoved her into a bedroom, tieing her up with stockings.

continued on next page
!

Her husband was temporarily relieved to find her car
gone from the garage. Then he made a further check.

53


46

Ruby Miller, a woman who feared nothing, wax alone in her rambling home when the

“maids’-day-off” burglar struck, and because of her courage, Ruby lost her life

URDER ON THE |

by DAVID FELDON

“Maid’s-day-off burglaries” around Hunting-

ton, West Virginia, to suggest to Detective

Captain Herman A. Frazier that they would ever

lead to murder. Some had been of such minor nature

that the victims didn’t even report them, although
this was not known until later.

Those which had been called to the attention of

‘ike WAS NOTHING in the series of

police quickly proved to have one thing in common: |
In each instance they were committed on the ~

weekly day off of the maid, or other domestic help,
in homes located in Huntington’s fashionable South-
side residential district. Of even greater significance
was the fact that these holidays varied; they fell
on different days of the week.

Yet, whether it was a Tuesday, a Thursday, or
whatever, that was the day picked for the illegal
entry and robbery.

“The long arm of coincidence doesn’t stretch that

far,” Captain Frazier wryly commented to a group
of his aides. ‘‘This burglar is someone who’s very
familiar with that whole area. He could be a former
employee of someone down there. He could be a
route man for a laundry, milk company, bakery,
or dry cleaner.”

Frazier assigned his men to pursue these avenues
of investigation, and the work went forward, but
because of the far-flung possibilities, necessarily it
progressed slowly. The only consoling thought in
the entire matter was that no one had been physi-
cally hurt, thus far. On each job, the thief chose his
time well, breaking in while the house was vacant
and he could work without interruption.

That factor changed abruptly on the morning of
Wednesday, May 22, 1957. The scene was a luxurious
home on Spring Valley Drive. The victim was Mrs.
Dorothea Drenssler, wealthy, attractive widow of a
well-known industrialist.

MAID’S DAY OFF ,

Huntington, West Virginia had a series of robberies when

maids were off duty. The last ended in bloody murder...

Soon after mid-morning, Mrs. Drenssler’s neigh-
bors were startled to hear shrill screams, followed
by the sight of the widow racing hysterically across
her lawn attired only in pajamas. Patrolmen Fred
Kings and Owen Henshaw were the first officers on
the scene in response to excited calls that went to
headquarters.

Captain Frazier arrived by the time Mrs. Drens-
sler had been calmed down enough to tell what
happened. This was the story she told the officers:

“I was alone in the house . . . Today is my maid’s
day off.” The captain shot a meaningful look at the
patrolmen.

The widow said she had arisen about eight o'clock

MASTER DETECTIVE, JANUARY, 1963.

Lt. Paden found the bloody claw hammer that was used to bludgeon Mrs. Miller
to death, and it was later tied to man who admitted burglary, denied murder

wee :

a

and gone to the kitchen, where she made coffee and
had a light breakfast. She lingered over a second
cup of coffee as she leisurely read the morning
papers, then rose and walked into her living room.
She had just lighted a cigarette and was standing
before the picture window, gazing.out over the
broad lawn, when she heard a sound behind her.
Turning swiftly, she was paralyzed with fright to
see a man advancing stealthily toward her.

He was short and chunky, his square-jawed face Yo
needed a shave, and he had a felt hat pulled low
over his eyes. Under the brim of the hat, she noted,
his eyes seemed wide and filled with a wild look.
She screamed, she said, and made a break for the

47


48

door to the patio, but to no avail. The houses on
Spring Valley Drive are built on large, tree-studded
plots, a considerable distance apart. Her scream, as
she feared, went unheard.

She never made it to the patio door. With one
bound, the intruder intercepted her, wrapped
powerful arms around her in a bear hug, and
dragged her into a bedroom. Frustrated in his first
quick search for cash, he took her checkbook from
her purse and forced her to write a check, made
out to “Cash,” for $170.

Then he bound her hand and foot to a four-poster
bed. After that, the burglar calmly and methodi-
cally ransacked the place. She watched his every
move as he gathered jewels, a .38 revolver, a change
purse containing less than $10, and other items of
value, and dumped them into one of her suitcases
which he had found in a closet.

When he finished his search, he came over and
stood by the bed to which she was bound. For
several moments, he stood there and studied the
terrified woman. Finally, he seemed to decide
against whatever he had been considering, and
strode out of the room. It took Mrs. Drenssler two
hours to struggle loose from her bonds, and by
that time she was nearly hysterical from fright
and shock.

Captain Frazier heard the widow out without
interruption before asking any questions. Except
for the time, which was earlier than that estimated
for the other burglaries, the basic MO of this in-
truder closely approximated that of the other
“Maid’s-day-off” jobs. One of the officers had al-
ready told him that entry had been gained by cut-
ting the screen on a window. The captain was due
for a surprise, however.

“Have you ever seen this man before?” he asked
Mrs. Drenssler, almost routinely.

“TI certainly have,” she replied spiritedly.

“You have?” Frazier echoed. “Why didn’t you
say so?”

“TI was coming to it,” the widow said. “He used to
do odd jobs around the place for my husband,
gardening, landscaping—that sort of thing.”

At first she had trouble remembering the man’s
name, but finally she recalled it. Captain Frazier
issued a “Want” on the suspect. He also staked out
Mrs. Drenssler’s bank, in the event that the bur-
glar became desperate enough to attempt to cash
the $170 check. As expected, however, nothing
came of this. The man never showed up at the bank.

Further investigation showed that he was an ex-
convict, currently on parole. His wife, who lived in
Huntington, said they were estranged and she had
not seen him in weeks. She was extremely doubtful
that he was in the city. If he had been, she said, he’d
have been around for sure, “bothering the life” out
of her.

For several days, there were no further develop-
ments in the case of the “Maid’s-day-off burglar,”
but as it turned out, this was just the lull before the
storm. .

The storm broke on Monday, May 27th, at 6:30
p.m., when a homicide was reported to the dis-
patcher at Huntington Police Headquarters, Ser-
geant John Smoot. The scene was the home of
wealthy contractor J. E. Miller, of Washington
Boulevard. The victim was his wife, Mrs. Ruby
Miller.

It had happened on the maid’s day off.

Captain Frazier, attending the weekly meeting of
his civic club, was notified at once and left for the
scene immediately. Detective Lieutenant Nelson
Paden, ID officer of the department, greeted him on
his arrival at the Miller home, a charming, ram-
bling, house nestled in a grove of trees.

“It’s rough, Captain,” Lieutenant Paden greeted
Frazier. “We’ve never had one like this.”

Elmer Bruner was left alone in death room to break him.

“Where and how?” Frazier asked tersely.

“In one of the guest rooms. Bludgeoned and gar-
roted. This way.”

Paden led the captain through the beautifully
furnished house till they came to the death room.

Here the air of quiet elegance that marked the .

rest of the house had been disrupted by a violent
hand. Furniture was overturned, bric-a-brac
smashed, the walls and rug splashed with blood.
The bedclothes had been stripped from the bed
and lay scattered about the floor. Ruby Miller was
asprawl on a blood-sodden mattress cover. A nylon
stocking had been fiercely tightened and knotted
about her neck. Roughly plastered adhesive strips
sealed her mouth. Small square gauze pads, about
two inches by two inches, covered each eye, held

- in position by long strips of adhesive tape that ran

from ear to ear. Except for a light blouse, torn open,
she was nude. The back of her skull had been
battered violently.

“Who discovered the body?” Frazier asked.

Pl. Waller jumped a and seized loaded tie

“A woman who lives across the street.”

“The young one who’s almost hysterical out on
the porch?” ,

Lieutenant Paden nodded. “She had quite a
shock.” Paden identified some of the other people
at the scene as neighbors who had rushed over
when they heard of the tragedy. Captain Frazier
ordered the premises cleared of all persons except
those who had immediate knowledge of any cir-
cumstances of the crime or discovery of the body.
Paden attended to this diplomatically, assuring one
and all that detectives would call upon each one
very soon.

They were wending their way down the drive as
another cortege of official cars arrived. Among the
new arrivals was Chief of Police Clifford Jarrell,
Acting Coroner Dr. Robert R. Dennison, and Assist-
ant Prosecuting Attorneys Raymond Lucas and
Robert F. Means.

Lieutenant Paden and his ID squad began their
examination of the Miller residence and the grounds
surrounding it. Captain Frazier sat down with Mr.
Miller, whom he knew by reputation as a highly
respected, civic-minded citizen. At the moment, he
was in a state verging on shock, which was quite
understandable in view of the sudden tragedy which
had struck his home and family.

Under Frazier’s quiet questioning, the bereaved
man’s story came out. His wife had volunteered to
help him at the office that morning, because his
secretary was taking the day off. By a coincidence,
it was Mrs. Miller’s maid’s day off, but there was
nothing pressing which required her attention at
home. ‘

He had left for a luncheon appointment at noon.
Mrs. Miller had said she would be leaving shortly
thereafter. As far as he knew, she planned to go
home.

He arrived home a little after six p.m. As he
alighted from his car in the parking area near the
garage, he noted that his wife’s car, a blue Olds,
was not there. It didn’t strike him as especially im-
portant. He merely assumed she was visiting one
of her many friends and would probably be along
presently.

His first hint of anything amiss came when he
went into the house. On the floor of his study he
saw a vase smashed on the floor. Looking around, he
found a couple of other disturbing signs. Several
drawers and cabinet doors gaped open, as if some-
one had pulled them out hurriedly and left them
that way. The glass door of his gun case was open,
too, and a shotgun was missing.

Alarmed by these things, Mr. Miller quickly
turned his attention to other parts of the house.
The master bedroom looked like a hurricane had
hit it. Drawers, closets and chests had been ran-
sacked. A large, velvet- (Continued on page 75)


74

dow and shouted, “‘Hey, fella, come here.
I want to talk to you.”

The man turned. He looked younger
than 26. His long brown hair, combed
straight back, kept falling over his dark-
rimmed glasses. He was wearing a tan
windbreaker jacket, checkered shirt,
work pants. A stubble of beard covered
his chin. His face expressionless, he
strolled over to the police car.

“You waiting for a bus?” Pennel
asked.

“Yes,” replied the man.

“What bus?”

“Number six.” It was the right num-
ber.

“Let me see your identification.”

The man reached into a back pocket,
took out a wallet and handed it to the
officer. Pennel took the wallet and
opened it, but continued to watch him.

Pennel saw the man slowly raise both
hands to the front of his jacket, then
drop them abruptly when he saw the
officer was watching him. Penne} shot a
quick glance at the wallet. On top was a
Colorado driver’s license. It was made
out to Michael J. Bell

In that instant the man clawed at his
jacket and simultaneously dropped to
the ground.

Pennel fired one quick shot through
the open car window, then scrambled
out the other side.

Bell was on his hands and knees be-
side the police car, his face pressed to
the pavement as though unable to move.
A .38-caliber revolver lay on the ground
only inches from his right hand.

“Don't touch that gun or I'll kill you,”
Pennel warned him, and kicked the gun
out of reach as Bell stared at him.

“Now get up, slowly.”

Bell got up. Pennel ordered him to the
back of the car. Commanding him to
lean with both hands on the trunk, the
officer quickly frisked him, but found no
additional weapons. Then, still covering
Bell with his pistol, Pennel picked up
his microphone and radioed the dis-
patcher.

“I've got Bell,” Officer Pennel reported
laconically. “Better send me some help.”

First to arrive was Patrolman Paul
Holland in another cruiser. Holland
handcuffed himself to Bell and. got in
the back seat, while Pennel drove to
headquarters.

“You sure gave us a merry chase,”
Officer Holland commented.

“I can’t see why they didn’t get me
last night,” Bell mumbled.

There was no bravado about the pris-
oner, no swagger, no boasting, only a
quiet, bitter resignation. He answered
questions in a soft, flat voice, but volun-
teered nothing.

Bell was quickly taken over by homi-
cide bureau detectives. After a brief in-
terrogation, he readily admitted both the
service station stickup and the shooting,
Chief Shumate disclosed. Later he signed
a 10-page statement, and he was identi-
fied by both the service station attend-
ant Biggs and Mrs. Miller.

Through all Mike Bell’s answers ran
a single theme—he did what he did be-
cause he didn’t want to go back to jail.

Most of his last 11 years—from the
time he was 15 years old—had been
spent in reformatories or prison. When
he was released the last time, Mike Bel)
said, he vowed he’d never go back.

“I was going to go straight,” he was
quoted. “That’s why I got the job.in the
laundry. I’d do anything to keep from
going back to prison.”

Then last August he made the mis-
take of buying a pistol, the one Detec-
tive Goebel heard about.

“I love guns,” Mike explained. “I
never went steady with a girl. but I love

to hunt and fish. I can’t stay away from
guns. But I wasn’t going to shoot any-
body.”

When a parole officer had called at the
Bell home and asked him about the
weapon, Mike lied to him. He said he
had bought the pistol at his sister’s re-
quest, and she took it back to Kansas
and gave it to her husband.

“I knew what was going to happen
then. They were going to send me back
to Kansas. I had to get away. I bought
the rifle. I took my mother’s car and
headed for Colorado Springs. I just
wanted to get away. The car started to
act up, so I headed back to Denver.

“When the car conked out in. Castle
Rock, I caught a bus for Denver. I just
wanted to get another car and get away.

“I spent some time walking around
when I got to Denver. I wound up out by
that filling station and saw the Buick
sitting there. I wanted that car and de-
cided to take it. I was going to head for
the mountains. I knew if I could get up
there, they’d never get me.”

He never made it to the mountains.
Bell made the mistake of cruising
around Denver—and that was when Pa-
trolman Knobbe saw and pursued him.

“IT didn’t want to shoot him,” Mike
Bell’s statement was quoted by authori-
ties. “I was dizzy, after the car crashed
into the tree—and the gun just went off.
That cop was after me, though. I didn’t
even see his face. He fell on his knees.
He said, ‘Oh, God—don’t kill me.’ But I
fired again. Then I ran. I didn’t know he
was dead when I ran, but it was too late,
anyway.”

As disclosed in his signed statement,

“NO CHARGE"

An irate businessman in Clarksville, Arkansas,
reported to the police that his pickup truck hod
been stolen. Three hours later he called the
police again to report thot his truck had been
returned—with a complete overhaul done on it.

Investigation disclosed that a Clarksville
garage mechanic, summoned to pick up a truck
for repairs, had gone to the wrong address.

“Just forget the whole thing,” the garage
manoger said. “There's no charge.”

—E. de Vito

Mike Bell said he saw the lights in Mrs.
Miller’s home, and figured he could steal
her car. When she screamed, he ran
again, cutting through yards and hiding
in bushes when officers came by. Once he
was behind a bush when two policemen
approached within several yards of him.

“I had them in the sights of my gun,”
he said. “I was going to let them have it,
if they started for me. I just wanted to
be left alone. I wouldn’t shoot anybody,
unless they were trying to hurt me. I
don’t like people to hurt me. But they’re
always trying to.”

He slept in the useless car he came
upon in the alley. He got up early and
caught a bus across town without being
detected. He had no idea where he
wanted to go then, or what he should
do. He spent most of the day in the
park at a place called Sloan’s Lake, go-
ing into nearby restaurants several times
to eat when he became hungry. .

Sometimes, he heard people talking
about him, and he learned for the first
time that the officer he shot was dead.
But no one seemed to notice him,
though once, in a bus, he sat close to a
woman who was reading a newspaper
with his picture on the front page.

“I guess I should feel sorry, but I’m
not,” he was quoted. “I never was sorry
for anyone and I probably never will be.
I don’t feel sorry for that cop's wife or
kids, either—I'm just that way.”

After dark he caught another bus and
rode back to East Denver. He went into
a park and slept on a bench. He made
no attempt to leave town. Somehow, he
knew he would be caught, but he wasn’t
going to give himself up.

“I knew they’d finally get me,” he was
quoted. “They always do. I wasn’t wor-
ried. All they can do is kill you—and
that ain't going to hurt you.”

On Thursday morning, the cold awoke
him early. He wandered down to the
nearest bus line, planning to ride down-
town, when Patrolman Pennel spotted
him. He had his pistol under his jacket.
He suddenly got the idea he could take
the police car and flee to the mountains.
But when he went for the revolver, it
caught in his shirt and he dropped it.

Michacl J. Bell was arraigned in Den-
ver District Court after first-degree
murder charges were filed by District
Attorney Bert M. Keating.

Someone asked Bell what he thought
would happen to him.

He thought a moment, and then alleg-
edly replied in his soft, emotionless
voice: “If they put me in prison, they're
going to have to kill me, because I'll try
to get out. But they'll probably give me
the gas. That will be all right. I don't
mind dying.”

Patrolman Knobbe did mind dying. He
had a lot to live for, but he died under a
trigger-happy punk’s flaming gun.

Mike Bell did not attend Officer Knob-
be's funeral, but more than 300 of his
fellow policemen did. They heard Knob-
be’s parish priest say:

“There is not one law enforcement
officer in the Denver area who has not
benefited from the sacrifice Carl Knobbe
made. He laid down his life in the per-
formance of his duty. This above every-
thing else—the laying down of his life
for others—is his passport to eternity.”
eo

Epitor’s Note:
The names, Mrs. Beth Miller and
| Mrs. Eunice James, as used in the
foregoing story, are not the real
names of the persons concerned.
These persons have been given ficti-
tious names to protect their identities. |

Murder on the .
Maid's Day Off
(Continued from page 49)

bound jewelry box was missing from its
accustomed place on Mrs. Miller’s dress-
ing table. He called her name, but re-
ceived no answer.

He told Captain Frazier that he
thought at the time the place had been
burglarized. He had no inkling anything
more serious had happened. Since his
wife’s car was not in the garage, he as-
sumed she was away from home, and
he was grateful for that.

Momentarily at a loss as to what to do
first, Mr. Miller went out on his porch
and looked around. Across the way he
spied his neighbors on their front lawn.
He called over to them that his house
had been burglarized. The man and his
wife ran over and helped him go through
the house, trying to determine what loot
the burglar had taken from the study
and the master bedroom.

When they came back to the study,
Miller picked up the phone and called
police headquarters to report the bur-
glary. As he was thus engaged, the
neighbor’s wife went back through the
house again for a further look. Noticing
that the guest room door was closed, and
recalling they had not gone into that
room, she opened it to see if the intruder
had taken anything from there.

Her first glimpse of the interior made
her cry out involuntarily. The blood-
splashed walls caught her eye first, but
in the same instant she could see a
shambies of overturned furniture, draw-
ers pulled bodily from dressers and their
contents scattered in wild disarray. The
end of the bed was piled high with a
mound of blankets, sheets and clothing
taken from the closets, still on their
hangers,

With a sudden sense of foreboding, the
woman advanced toward the bed. Under
a blanket that trailed over the edge of
the mattress, she thought she could see
the outline of a leg. With a sudden, im-
pulsive movement, she swept the pile
aside, sending it tumbling to the floor.
She whipped back the blanket and saw
the horribly murdered body of Mrs.
Miller.

A long, shrill, terror-filled scream
brought her husband and Mr. Miller on
the run.

That was as much as the victim’s hus--

band could tell. Captain Frazier now
turned to the interrogation of the neigh-
bor couple who had shared his shocking
discovery. They corroborated everything
Miller had said and had little to add to
the story. Some relatives of the slain
woman had arrived, but they could con-
tribute nothing which seemed immedi-
ately pertinent to the crime. A remark
made by one of them stuck in the cap-
tain’s memory, and he filed it mentally
for possible future reference.

“I can’t understand it,” the relative
said. “Ruby wasn’t afraid of anything.
Not anything! Who could have done
such a thing?”

Questioning of the neighbors con-
firmed that Ruby Miller was known as
an extremely self-reliant woman, not at
all the nervous type who scared easily.
Beyond this fact, however, area residents
could contribute little. One woman fixed
the time of Mrs. Miller’s arrival home
from her husband’s office at between
12:30 and one o'clock.

“I was out on my lawn when I saw

Ruby pulling into her driveway. I saw
her distinctly. She was alone. Before she
went in the house, she was moving
around in her flower garden. I’m positive
she was all right then.”

No one else in the neighborhood had
noticed or heard anything out of the
ordinary that day. No strangers were
seen, no unusual outcry heard.

The body was being taken out by at-
tendants for St. Mary’s Hospital, where
it would be autopsied, when Captain
Frazier rejoined Lieutenant Paden in the
guest room. He found Paden examining
a bloody claw hammer which Paden held
suspended in front of him on a short
length of wire.

“The murder weapon?” Frazier asked.

Paden nodded. “Of course she was
garroted, but I’m betting this was what
killed her. Dr. Dennison thinks so, too—
that she was dead before she was stran-
gled. That stocking was knotted so
tightly around her neck that he had to
cut it away, but there was no swelling
of the neck, and the eyes weren’t bulg-
ing.”

“Have you worked up any idea how
it happened?” Captain Frazier asked.

“Yes. She put up a terrific struggle for
her life.” He pointed to a shotgun lying
on the floor which had been obscured
previously by the pile of blankets and
sheets. “That’s the shotgun missing from
the gun case in the study.” He also
pointed to a woman’s white glove on the
floor. “That was covered up, too. We
found the mate in the living room,”
Lieutenant Paden added.

Lieutenant Paden theorized that Mrs.
Miller had come into the house and was
removing her gloves in the living room
when she heard a sound coming from
the guest room. She went immediately
to the gun case in the study and got the
shotgun, then advanced on the guest
room.

“That figures,” Captain Frazier ob-
served. “Her relatives and the neighbors
say she wasn’t afraid of anything.”

“She found the door closed when she
came to this room,” Paden continued,
“and when she opened it she was con-
fronted by the intruder, caught him in
the act of burglarizing. Why she failed to
fire the gun, we don’t know. Maybe she
was squeamish about actually hurting
him and just hoped to scare him off.
Maybe she forgot about the safety. It’s
still on. The gun is loaded, but hasn’t
been fired.

“But I find a handprint on the barrel,
near the muzzle. It was made by some-
one at the muzzle end. That leads me to
believe Mrs. Miller approached her as-
sailant, the gun thrust toward him. He
grasped the gun with one hand, wrench-
ing it aside, possibly knocking it to the
floor.”

The assailant, it was theorized, then
hit her with the claw hammer. The first
blows, bursting her scalp, caused blood
to spew on the walls and ceiling, as at-
tested by trails of crimson specks all
over the room.

Moments later, as Lieutenant Paden
took him on a step-by-step retracing
of the killer’s and the victim’s move-
ments, Captain Frazier stopped sud-
denly. He had just remembered a
telephone call which reached him at the
civic club moments before the meeting
began. :

“Elmer Bruner was picked up this
afternoon,” he said to Paden. Bruner was
the former gardener named by Mrs.
Drenssler as the man who had burgled
her house and tied her to the bed the
previous Wednesday. Turning to Detec-
tives Ted Barr and Milton Dickerson, he
said, “You men go back to headquarters.
‘Take Elmer Bruner into the interroga-

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15


tion room and go aiter him hard on the
Drenssler job.

“Once you’ve got him completely pre-
occupied with that, jump him with this
murder.

“It’s a long shot, but we’ve got a wit-
ness who says he pulled one maid’s-day-
off job. Mrs. Miller’s maid was off to-
day. They tell me he had ticket stubs on
him that showed he just got in from
Columbus, Ohio, today, but it might just
be he got here in time to make a con-
nection with murder.”

Bruner had been captured as a result
of a tip telephoned to Sergeant Smoot,
the radio dispatcher. He had sent Patrol-
men Bob Shy, Donald Waller, Gene
Patterson and Ernest Fox to the area
where Bruner was reported, near his
wife’s home. The four officers immedi-
ately took up strategic positions, and
within minutes, the wanted man walked
into their trap.

When Patrolman Shy called his name,
however, Bruner pulled an automatic
out of his hip pocket and leveled it at
him, but he seemed to have some trouble
firing it, luckily. Officers Patterson and
Fox converged on him with guns drawn.
and Patrolman Waller was leaping at
him out of his cruiser. Patrolman Shy
got his own gun out and fired over
Bruner’s head, but the fugitive wheeled
and sprinted off, cutting through back
yards.

He was no match for the four officers.
Hurdling fences, they cut him off within
minutes. He was brought in and booked
— burglary and assault on Mrs. Drens-
sler.

In his earlier questioning, he claimed
to have arrived back in Huntington only
an hour before his capture. He said he
had spent the past week in Columbus
and Indianapolis. He would say nothing
when auizzed about the .25 caliber auto-
matic he pulled on the arresting officers.
He also professed to know nothing about
the Drenssler robbery, with which he
was charged, or any other of the “Maid’s-
day-off” burglaries.

Detectives Barr and Dickerson were
unable to shake his story, but the tide
turned when Captain Frazier arrived
and joined in the interrogation of the

sullen suspect, a stubby, chunky, 40- .

year-old man with powerful shoulders
and arms. “Let’s look at what he had
on him,” Frazier said.

A bulging envelope was brought in
and the captain dumped its contents on
the table. Asked about a set of car keys.
Bruner gave a story which was quickly
proved to be false.

The bus ticket stubs were a tenuous
alibi. Bruner claimed he arrived in
Huntington about 3 p.m., an hour later
than Mrs. Miller’s estimated time of
death. The stubs showed only that they
had been purchased that date; May 27.
1957. but not the time of the bus they
had been used on. A couple of checking
locker keys aroused the interest of Cap-
tain Frazier.

“Where are the lockers and what’s in
them?” he asked Bruner. The suspect re-
fused to answer. Frazier tossed the keys
to Detectives Barr and Dickerson.
“Probably at the bus station. Go see

’ what you can find.” -

They returned in a short while luggin
two heavy suitcases and a bulging brief-
case. Amid the contents, the officers
found the .38 revolver stolen from Mrs.
Drenssler on May 22nd, as well as a
purse containing the widow’s identifica-
tion. car keys and other items.

“Well?” Captain Frazier said to Bruner
softly.

“Okay. So I did the Drenssler job. I
admit that. But that’s all I did.”

From the brief case, the captain with-

rew a velvet-covered } :
he immediately recognized by descrip-
tion as the property of Mrs. Ruby Miller,
the murder victim. Beneath it in the
brief case was jammed a bloodstained,
cream-colored sport shirt. In the neck-

band were the laundry-mark initials,

“E.D.B.” The suspect’s full name was
Elmer David Bruner.

At this point a call came in that Mrs.
Miller’s missing car, the blue Olds-
mobile, had been found near St. Mary’s
Hospital. Ironically, that was where her
body had been taken for autopsy. Fra-
zier sent a man to the spot with the keys
taken from Bruner. He called in to re-
port they fit.

Confronted with this addition to the
damning pile of evidence, Bruner finally
admitted burglarizing the Miller home.
“But nobody was at home. I swear it. I
had done work for the Millers before. I
knew the maid was off on Monday after-
noons. I really did come back to town
today, but I got in around 11 this-morn-
ing. I went out to the Miller place, and
knocked on the door. When I was sure
no one was home, I cut the screen and
broke in and looted the place. I found
the car keys on the dresser and drove
the Olds to St. Mary’s Hospital and
parked it there. But nobody—absolutely
toy lta in the house while I was

ere.”

Statement required by the Act of August 24,
1912 as amended by the Acts of March 3, 1933,
July 2, 1946 aad June 11, 1960 (74 Stat. 208)
showing the ownership, management and circu-
lation of MASTER DETECTIVE, published monthly
at New York, N. Y., for October 1, 1962.

1. The names and addresses of the pub-
lisher, editor, managing editor, and busi-
ness managers are: Publisher, TD Publish-
ing Corporation, 206 East 43rd St., New
York 17, N. Y.; Editor, A. P. Govoni, 206
East 43rd St., New York 17, N. Y.: Manag-
ing Editer, Edward Gibbons, 206 East 43rd
St., New York 17, N. Y.; Secretary-Treas-
urer, Frederick A. Klein, 206 East 43rd
St., New York 17, N. Y.

_ 2. The owner is: (If owned by a corpora-
tion, its name and address must be stated
and also immediately thereunder the names
and addresses of stockholders owning or
ae 1 Fossent or more of total amount
of stock. If not owned by a corporation, the
Mames and addresses of the individual
owners must be given. If owned by a part-
nership or other unincorporated firm, its
name and address, as well as that of each
individual member, must be given.) Mac-
fadden-Bartell Sorpoeson. 205 East 42nd
St., New York 17, N. Y.; Gerald A. Bartell,
205 East 42nd Street, New York 17, N. Y.:
David Bartell, East 42nd Street, New
York 17, N. Y.; Lee B. Bartell, 205 East
42nd Street, New York 17, N. Y.: Melvin
M. Bartell, 205 East 42nd Street, New York
17, N. Y.; & Rosa Evans, 3500 North
Sherman Blvd., Milwaukee 16, Wisconsin.

3. The known bondholders, mortgagees,
and other security holders owning or hold-
ing 1 percent or more of total amount of
bonds, mortgages, or other securities are:
(If there are none, so state.) None.

2 and 3 include, in cases
where the stockholder or security holder
appears upon the books of the company as
trustee or in any other fiduciary relation,
the name of the person or corporation for
whom such trustee is acting; also the state-
ments in the two paragraphs show the
affiant’s full knowledge and belief as to the
cire ces and conditions under which
stockholders and pig be Me holders who do
not appear upon the books of the company
as trustees, hold stock and securities in a
Capacity other than that of a bona fide
owner.

5. The average number of copies of each
issue of this publication sold or distributed
through the mails or otherwise, to paid
subscribers eerie te 12 months preceding
the date shown above was: (This informa-
tion is required by the act of June 11, 1960
to be included in all statements regardless
of frequency of issue.) 180,279.

(Signed) FREDERICK A. KLEIN,
Secretary-Treasurer
Sworn to and subscribed before me this
anh wad of September, 1962.
SEAL
TULLIO MUCELLI, gar #4 Public
State of New York No. 03-8045500
Qualified in Bronx Co.
Cert. Filed in New York Co.

4. Paragra

for a long moment, then said evenly,
“We don’t believe you, Bruner.”

Under repeated intervals of question-
ing, however, Bruner refused to change
his story. At dawn on Tuesday morning,
Frazier took him, accompanied by de-
tectives, to the murder scene. In the
guest room where Mrs. Miller had been
slain, Bruner reiterated his innocence
of her death.

Captain Frazier did an extraordinary
thing. First he ordered Detectives Barr
and Tomlinson to leave him alone with
the prisoner. Then he said to Bruner,
“Elmer, I know you did this terrible
thing. So do you. Why don’t you confess
to me and ask the forgiveness of God?”

Bruner blinked and shook his head as
if he had not heard aright. Nervously he
rubbed his hand on the beard stubble
on his chin. Captain Frazier turned and
walked out of the room, shutting the
door behind him as he left the man
alone in that chamber where Ruby Mil-
ler died under a murderer’s savage
blows only scant hours before. It was a
daring experiment.

Ten minutes later, the captain opened
the door and entered quietly. Bruner
had not moved from the spot where he
left him. He seemed rooted to the floor,
staring at the bloody bed.

“Are you ready to tell me about it?”
Frazier asked.

Bruner’s response was a measured,
negative wagging of his head from side
to side. But suddenly it stopped. Still
staring at the bed, he said, “I did it.
Please forgive me.”

Back at headquarters, in the presence
of witnesses, Bruner dictated a confes-
sion. In it, he kept insisting he had only
tried to defend himself against the shot-
gun with which Mrs. Miller menaced
him, claiming it was his “right” to de-
fend himself.

“I guess she had trouble with the
safety catch on the gun,” he said. “I tried
to take the gun away from her. I picked
up something—lI don’t know what it was.

_I kept beating her over the back of the

head.”

He would say nothing about removing
his victim’s clothes, which the coroner
said had happened after she was dead.
After he completed his statement, Bru-
ner perversely refused to sign it, but
later he changed his mind and affixed
his signature to the document. He also
cleared up the puzzling point of why he
had bandaged and taped the eyes of his
victim when she was already dead.

“I couldn’t stand that awful look in
her eyes,” Bruner said, “as she was lying
dead on the bed in all that blood.”

On June 29, 1957, an all-male jury

found Bruner guilty of murder in the 4

first degree, with no recommendation for

mercy. He was sentenced to death. It ~
' was nearly two years, however, before

a series of appeals on his behalf had run
their course, including rejection of a
final petition to the United States Su-
preme Court. But the wheels of justice
finally turned full circle, and on April
3, 1959, Elmer David Bruner paid the
supreme penalty in the execution cham-
ber of the West Virginia Penitentiary at
Moundsville.

It was a Friday, a day when Bruner

had seldom been busy. Maids rarely & 3

Friday off.

Commission Expires March 30, 1964

Eprror’s Nore:

The name, Mrs. Dorothea Drenssler,
as used in the foregoing story is not
the real name of the person con-
cerned. This person has been given a

fictitious name to protect her sandenesival x

ales ata


ITU eee ees sombre!

84 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

specific ground of objection is mentioned session until it was delivered to a repre-
in the bricf filed in behalf of Burdette sentative of the prosecuting attorncy’s
as to any of these instructions and, after office. She identified the paper at the time
careful consideration, we find no preju- of the trial as the one which she picked

dicial error in the giving of any of them. up and as being dated July 31, 1950, and
stated, in effect, that it was saturated with

[22-24] Burdette also complains aS tO pJood when it was picked up. We see no
the action of the court in refusing to giv¢ error in permitting the jury to have this
to the jury his Instructions Nos. 1, 2, 3,4, evidence. The paper was sufficiently iden-
17, 19, 21, 25, 26, 27, 31, 32, 33 and 35, but tifed and could possibly have been of aid
docs not assign specific grounds showing to the jury in determining the Se aN
the basis of his objections. No. 1 would 6¢ the attack. True, it may have had con-
have directed the jury to find the defendant giderable effect on the minds of the jury,
not guilty and the giving thereof would put that is no reason why it should have
not have been warranted. Nos. 2,23 and Faken rejected. That objection may be ‘ith
would have instructed the jury that the of almost any material evidence. See
greatest offense for which Burdette could state y. McDonie, 89 W.Va. 185, 109 S.E.
be convicted was less than Murder in the 710; State v. McKinney, 88 W.Va. 400,
first degree, and the giving of any of them 496 SE, 894; State v. Henry, 51 W.Va.
would have been clearly unwarranted under 283, 41 S.E. 439; State v. Baker, 33 W.Va.
the evidence, as previously indicated. No. 319, 10 S.E. 639,

17 dealt with reasonable doubt, was covered
by other instructions, and as drawn was
incorrect and misleading. No. 19 was
amended by the court by inserting the
words “after having heard the instructions
of the court, and argument of counsel”,

Complaint is also made that the prosecut-
ing attorney, in his opening statement to
the jury, told them that the purpose of
the defendant in making the attack was
robbery, and that an assistant prosecuting
thus requiring the jury to not only consider attorney made a statement to the sae ef-
the evidence but to consider the instructions fect in the closing argument. It will be
and arguments, before reaching a verdict. remembered that there was evidence to the
There was no error in so amending the in- effect that Alice Cobb, a short time before
struction. The other instructions of de- the fight, requested O'Brien to bring her
fendant which were refused were fully @ drink of wine; that O'Brien had the
covered by other instructions given, and we taxi make a agree 29 Clendenin Street,
find no necd for further discussion of them “a bootleg joint”, and that a bottle was
ne: thrown, presumably by cither Burdette or

Painter, during the fight, and that the con-

[25] The complaint of the defendant tents thereof smelled like alcohol. The
Burdette as to the admission of certain State, however, did not prove that O’Brien
evidence over his objection relates to the purchased or ever had in his possession a
introduction of a newspaper supposed to bottle of wine, except possibly by inference
have been the one purchased by O’Brien. which may be drawn from the above acts
Burdette contends that the introduction of and from the further fact that it was
to prejudice the minds of proved that Painter had in his possession
the jury by reason of its gruesomeness at the time of his arrest the pint of liquor
unfairly against the defendant in this case.” last purchased by Burdette and himself.
Shortly after the body of O’Brien was re- Presumably this was the evidence which
moved from the sidewalk Patrol Officer was referred to by the prosecuting attor-
Smith placed three sheets of a newspaper ney. We think reference thereto could not
found near there over the blood spot on the have been prejudicial to the defendant, in
sidewalk, and a little later Policeman John- view of all the evidence. There is no at-
son placed the remaining part of the paper tempt to show in what manner the defend-

over the three sheets.
picked up the paper and kept it in her pos-

the paper tended os

Later, Alice Cobb ant could have been prejudiced thereby.
Moreover, the alleged statements of the

STATE v. BURDE
Cite as 63 S.E.2d i W. Va. 85

prosecuting attorney and of the i
prosccuting attorney were not nie eet aca eS rans Sena as
of the record. As to this assignment of be doub e€ power of the Legislature can not
error, the defendant below relies upon U.S poe In Ex parte Kemmler, 136
State v. McLane, 126 W.Va. 219, 27 S24. involving a siniltr amecton for eee
604; State v. Hively, 103 W.Va. 237, 136 of New Y. similar question, from the State
S.E. 862; and State v. Moose, 110 W.Va f cw. Yori 20 wee hale that execution
476, 158 SE. 715. These oa on ce ° “ee of death by electricity is with-
have to septchetion book ’ * he plies the legislative power of
ate, iS Case was Ci i
ee ae li defendant Burdette fur- Woodward, 68 W.Va. 66, pages _ 30
by the Sat ane edhe Seerenee imposed L.R.A.N.S., 1004. See McElvaine Vv
ne St Pty is “a violation of Article Brush, 142 U.S, 155, 12 S.Ct. 156, 35 L.Ed.
Virginia vate ptt oot ss of West The Constitution of Virginia of 1776
Coiaits ‘ e 8th amendment to the CoMtains a provision to the same effect a
stitution of the United States. The the above quoted provision of Secti "
ps nue argued in the brief of defend- Article III of the West Vitbinis reas
teridant AEN that the position of de- Constitution, and the Supreme Court ae
af dectn's zs ete of the sentence ‘Ppeals of Virginia, in Hart v. Common-
and Siacses . cee .e aeiagiabiie “cruel wealth, 131 Va. 726, at page 743, 109 S.E.
ing of th rsp ish within the mean- 82, at page 587, stated; “The punishmésit
. ¢ constututional provisions. of death by electrocution (which is th
oe = of the Acts of the Legis- present mode of inflicting the death pete
near , Section 3, Article 7, Chapter in Virginia), as is well settled, cannot in it-
of the Code of West Virginia was self be regarded as a cruel or unusual mod
amended so that now “The sentence of of punishment.” Sart

death shall, i
diektiocuiins “GF a ease, executed by We have carefully examined the record
convict until he is of this c -
dead”, except in certain i ase and are of the opinion that th
: ain instances not mate- defenda B oe
tial here. The am ; nt, Burdette, has had a fai
q ; endment became eff tinbateinl wi air and
tive March 1 : effec- partial trial. He has been abl a
execution of ae Prior to that time sented by counsel in the courts bleh ana
pace rrr See eath sentence was re- in this Court, and a jury, the trial a
rn 4 € .
compict’ BF a e be ‘by hanging the and the circuit court, have found him pee
Sactien Sat Hels ene bg is dead”, guilty of murder in the first degree with.
ent of the State Con- out recon i able nae 8
Mieitica “ta : - nmendation. Such conclusi
eicbscice oe se applicable, reads; not be reached, of course widens Ss
ee ail shall not be required, nor anxiety, : , muc
¢xcessive fines imposed, n hg! xicty, concern and solicitude. §
: , nor cruel and un- Consolati : ee
usual punish ye isolation may be had, however, i
Eighth tia shite inflicted. * * *” The belief that a reSecus ie“ diead a the
Sista 374 eno: ~ Federal Con- ment of criminal laws may ave the ae
y the same language, and prot he ri =
I ge. ect the rights and
t seems well settled that punishment of #ocent persons. reeds

death by electrici :
sa Pietsch rs 3 met pcre ch eh oi: affirm the judgments of the
knowled : COTO cuit and Intermediate Cou
‘ike Yo ceag ee and intent of wha County, and remand asso, gy
imme eetniccado, be ee in enact- intermediate court for the purpose of fixing
Provide a more saiiay ¢, 62-7-3, was to @ date for carrying the judgment of that
winnie bag ade tenho e and less crue] court into effect,

n of death sentences, Affirmed.


‘

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PRET EY

86 W. Va.

135 W.Va. 106
STATE v. PAINTER.

63 SOUTH EASTERN REPORTER, 2d SERIES

4. Homicide 28, 180

Drunkenness of accused is no defense

to charge of murder in first degree, but
evidence of intoxication is admissible to
eme Court of Appeals of West Virginia. chow that accused was so intoxicated as

Submitted Sept. 12, 1000. to be incapable of premeditation and de-

Decided Dee. 12, 1950. liberation and thus to reduce offense of
murder of first degree to murder of sec-
ond degree, provided that defendant did not
intentionally become intoxicated so as to
pare himself for commission of crime.

No. 10300.

Supr

Rehearing Denied Feb. 12, 1951.

Fred Clifford Painter was convicted in the
Intermediate Court of Kanawha County of pre
murder of the first degree. The Circuit
Court of Kanawha County denied defendant 5 Criminal law €=48
a writ of error holding that the judgment Permanent insanity produced by chron-

ic disease, continued use of intoxicating

of the Intermediate Court was plainjy right,
and the defendant brought error to the judg- jiquors, use of narcotics, or combination of
ment of the Circuit Court. The Supreme such, is defense to criminal charge, but

Court of Appeals, Lovins, Seamer held where evidence is sufficient to convince
that the facts of the case Just ed the jury impartial minds that accused knew right
in returning a verdict of murder of the first b é
degiee from wrong when crime was committed,
itn ee at although evidence on behalf of accused
= conflicts therewith, verdict will not be
disturbed on that ground.

{. Criminal law €=703
Opening statement in trial of criminal
prosecution, while not exactly analogous to
argument to jury, is sufficiently similar to
’ permit application of principles enunciated
in opinions dealing with improper state-
ments made by counsel in arguments.

2, Criminal law €=730(2), 1171(2)

6. Criminal law 48

Temporary insanity not produced by
excessive use of intoxicants is defense
when existence and temporary nature of
disease is established by proof. ;

7. Criminal law €=50
In West Virginia, defense that accused

In ruling on propricty of prosecuting 45 moved by irresistible impulse to com-

attorney’s opening statement to jury,
court exercises judicial an
- discretion, but judgment of conv

not be reversed because of intemperate lan-
his was supported by evidence.

guage used by prosecuting attorncy in

trial

d_ reviewable
iction will 8. Homicide €>253(1)

mit crime is not recognized.

Conviction for murder of first degree

opening statement unless such language. g pomicide 146

clearly prejudiced accused or resulted in

manifest injustice.

3. Criminal law €=703

In homicide prosecution, trial cour

did not err in permitting prosecuting at-
over ob-

torney in his opening statement,

jections of defendant, to say that State
o offer evidence to prove COM- fret degree if intent to kill should com

expected t

mission of crime which for heinousness,
plain cussedness it WAS previous, and it is not necessary that pre-

orneryness and

t to kill may be presumed from circumst

Malice may be inferred from use of
fists and stomping by feet where attack

avage and violent, and intention
ances

is brutal, s

of brutality and violence.

10. Homicide 6 >22(3)
It is sufficient to constitute murder of
e into

existence at time of killing or at anytime

aati: 50 conceive, notwithstanding fact seqitation and deliberation have existed
that language objected to was not supported for any particular length of time.

by evidence at time st
where counsel for defend:
tunity to remove unfavora
any, made on jury by such statement.

atement was made,
int had oppor-
ble impression, if

11. Criminal law 966, 972
A motion in arrest of judgment will
not be sustained except for errors apparent

STATE vy. PAIN
Cite as 63 S.E.2d ann W. Va. 87

re face of record and under criminal stat- b
ute of jeofails, such motion does not have

same effect as at common | i
~ n law. Code 62-2- tion, blood stained shoes of co-assailant

(2. Criminal law €=972

In homicide prosecution, there was no
error of law appearing on face of record
which would preclude court from render-
ing judgment of sentence pronounced
and it was not error, therefore, to avertole

motion in arrest of judgment.

13. Criminal law €=5, 1213

Ee mere or his co-assailant, trial
rt did not err in admitting, over objec-

si i
; 3 they were one of the instruments used
in the commission of homicide.

18. Homicide S171 (1)

In homicide prosecution, where there
was evidence that defendant and his co
assailant had acted together in killing
decedent, trial court properly dienitced,
over objection of defendant, testimon as
to number of times co-assailant had kicked

Legislature has power to create and Victim.

define crimes and fix their punishment, so
only that such punishment is not cruel or
unusual or disproportionate to the offense
Const. art. 3, §§ 5, 10; USGA .Const

Amend. 8, 14.

14. Criminal law €>1213

Statute authorizing infliction of death
penalty by electrocution in certain instances
is not repugnant to state and federal con
stitution provisions prohibiting cruel wai
usual or disproportionate punishnient 3
crime. Const. art. 3, §§ 5, 10; U.S.C.A
Const. Amend. 8, 14; Acts 1949, c. 37. py

15. Criminal law C1169(1), 1170(1)

Judgment of conviction will not be in-
terfered with on ground that improper evi
dence has been admitted, or that proper fe
idence has been rejected, unless it appears
that trial court clearly erred.

16. Criminal law €>404(4)
In prosecution for murder by vicious
ee causing much bleeding, where there
a evidence that altercation had started
ats solicitation on part of defendant to
sell newspaper to victim or to purchase
ee from him, trial court did not
yg in permitting introduction in evidence
i: stage ¥ picked by witness out of pool
a a at scene of homicide, notwith-
Pier that relevancy of item was slight
ni at newspaper was not picked up until
lours or more a
ne ore after occurrence of hom-
17. Criminal law S=404(3)
ih In homicide prosccution, where there
evidence that victim had been stomped

19. Witnesses €=>388(5)
= et ee prosecution, trial court
; _in permitting state to cross-
examine police officer, over objection of de-
fendant, to elicit information with respect
to prior report made by police officer, where
such questions were propounded re officer
in order to lay foundation for subsequent
impeachment of police officer’s testimony
if such impeachment had been SBS s,

20. Witnesses €=271 (2)

In homicide prosecution, trial court did
oe err in refusing to require prosecuting
attorney to show defendant’s counsel prior
written report made by police officer and

refer i
ee red to by state in cross-examining
police officer.

21. Criminal law €>683(1)

In homicide prosecution, trial court
did not err in permitting state to examin
Police officer with reference to Exctain an
tions of prior report made by police ofices
where record disclosed that parts of re
port were introduced for purpose of r
butting evidence offered by defendant ve
to his insanity, it being state’s theory, a :
parently, that since defendant had siete “
ed to show he was insane, fact that, oaks

homicide, he had made coherent statement

to police officer would i
tend
that theory. abe

22. Criminal ta.» C=485(1)

Expert testimony is not admissible

when it is elicited by hypothetical ques-
tion which states or assumes facts not ad
mitted or proved. :

+ AO on

—e—

Fe re ee ee


Bi
Phi
Ky.
ic
pi

>. x 9

Jee Sy OR NE

995%

i

Taare ee

88 W. Va. 63 SOUTH EASTERN REPORTER, 2d SERIES

28. Criminal law ©=829(1) _
It is not error for trial court to refuse
instructions covered by other instructions

23. Criminal law €=675

In homicide prosecution, trial court did
not err in excluding testimony of physician
to effect that if defendant had syphilis, had which are given.
drunk a large amount of beer and consider 99 Gpiminal law €=834(!)
she srg ¥y other ntoxicanl=> stich acts Modification of instruction stating in-
and diseased condition would affect: the correct legal principles, and giving of acti
fn. tality of defendant, where physician ; structions, when properly snpdifed, are

aire i i ini
hau already testified that, in his opinion, 4+ error.

defendant was insane.
30. Criminal law C48

24, Criminal law €=778(1) True and simple test for determining
Homicide €=307(2) responsibility of person for crime is wheth-
In homicide prosecution, where its er accused at time of committing crime
instruction was based on sufficient evidence knew right from wrong, and mental capac-
trial court did not err in charging that, ity to distinguish between right and wrong
where unlawful homicide is proved, pre- carries with it capacity to resist impulse
sumption is of murder of second degree to do wrong.

and burden is on state of showing that it
Syllabus by the Court.

was murder of first degree and on accused
of showing that it was without malice and 1. A judgment of conviction will not
therefore only manslaughter or that he be reversed because of intemperate lan-

acted lawfully and is therefore not guilty, guage used by a prosecuting attorncy in his
and that in arriving at verdict as to degree opening statement to a jury, which does not
of guilt, if any, jury should take into con- clearly prejudice the accused or result in
sideration all evidence and circumstances in manifest injustice.
Cases eS 2. Druinkenness of the accused is nota
i defense to a charge of murder of, the first
ee Orla td nga. sp degree, but ictehes of intoxication is ad-
48 aM 3 a by Shareeee that inissible to show that accused was so in-
baron 9, 8F™ prisoner to reduce offense toxicated as to be incapable of premedita-
from murder in second sane hy man- tion and deliberation, and thus reduce the
slaughter ts excusable homicide i that it offense from murder of the first degree to
ib Jocimnbest ara  heaaned to introduce irder of the second degree, provided the
ener Semicaent to raise reasonable doubt defendant did not intentionally become in-
in minds of jury as to whether offense 1S toxicated so as to prepare himself for the
murder of second degree, and such instruc- (opimission of the crime.
tion does not preciude return of verdict of 3 Permanent insanity hodacak Ye
murder of second degree or place burden oe : ‘

: ' chronic discase, the continued use of in-
upon accused ~ Febuiting charge yeaa toxicating liquors, the use of narcotics, or
beg peoet diate did not commit highcr 2 combination of such, is a defense to a
wayne criminal charge; but where the evidence is
96. Criminal law €>814(2) sufficient to convince impartial minds that

Giving of instructions in homicide the accused knew right from wrong when
case, stating correct and applicable prin- the crime was committed, although the evi-
ciples of law, is not error, where there is dence on behalf of the accused conflicts
evidence to justify their application. agabeke the —. will not be disturbed

on that ground.

4. Temporary insanity not produced
by excessive usc of intoxicants is a defense
when the existence and temporary nature
of the discase is established by proof.

27. Criminal law 6=814(1), 830

Refusal of instructions stating in-
applicable and incorrect legal principles
is not error.

STATE v. PAINT
ee Cite as 63 8.B.2d a, bing
. In this jurisdiction a defense tha i i
t there is justi i
the accused was moved by irresistible im- tion. hoppy eae tae

Pp se a crime 1S n rec ig Zz . 12, I 4 refusa fe) 1 t tio: tat-
commit T ot recogni ed h nstruction a
ul to 1 f i i
s $s

6. Although a homicide i 3
cide is committed ng in : :
b e g inapplicable and i °
Sg ag hands and feet of the ac- ciples is not error eee
’ 7 .. c
ESN ated ares bereaiée of re- 13. It is not error to ref i
Pesos n the deceased form tions covered by other i Nese be
nt basis for an inference of malice. are given y er instructions which

7. A motion in arrest of j
; dgment 14 i i
fa ne g igen ju 14, The modification i i
siete te = wk 2H errors ap- stating incorrect legal sR gale aed
Se ee ord, and under giving of such instructions, wh oven
Senge rf inal statute of jeo- modified, are not : pbs
, such motion does not have the same es
effect as at common law. eee

8. i
he: Feral alc of the Legisla- Salisbury, Hackney & Lopinsk D
ee ’, see Sere authorizing in- Boone Dawson, and Lon G. Miike, 1 if
a Se sath pele by electrocu- Charleston, plaintiff in error. get
; is not repugnant William C, y
by orgs 5, Article III of the Constitution W. Stokes, Ma hed eet —
tate and the Eighth Amendment erro tT en
to the Constitution of the United States of i

America prohibiting cruel, unusual and dis- LOVINS President.

proportionate punishm i
ents for crimes. Fred Clifford Painter, hereinafter desi
ig-

9. A jud me :
. eee ss ney BS spaces will not mated as defendant, prosecutes thi i
Gibie ceidende Ya i e ground that im- of error to a judgment of the Circ a
ee eat s been admitted, or prop- of Kanawha County, W Circuit Court
idence has been rejected, unless it ap- mi Wrest Virginia,

pears that the trial court clearly erred. The defendant and Harry Atlee Burdette

fa es ; : were jointly indicted by a j f
pbs ee ri Ne trial of an Kanawha County for ae ae wits
er of the first degree ward C. O’Bri ° ‘
reas gree . O’Brien. They were giv
a pee: pate evidence to give ate trials. The State elected 4 Pie
an ae ea The Court in- dette first, his trial resulting ina post ie
ina Sy eS RA . where an unlawful of murder of the first degree. I Se
SS ag ve , the presumption in this ance with the verdict Burdett ee
a ea : afaeen of the second de- tenced to be “caiiatied with pel 8% The
Sue te poh we hg the state of decision of this Court on a writ of is
) at it was murder of i as
le cr ae : r of granted Burdette is show ini
SGN + é shown by the opinion
Shear irs ccused of in the case of State v. Burd
pss ot 3 can, that it was without 63 S.E.2d 69, filed contempor oe res
ae . : herefore only manslaughter, this opinion BSCE ce Bez
at he acted lawfully, and is therefore The ¢ i
Fes pnee The Court further instructs the y By oe ee
dite shat 4 Pols alee ; . Burdette, supra, with th i
pe Mth Pa: a pager in this hereinafter Sistea eke Be Ene tag
guilt, if any, the same as the facts in the instant an oF
: ase an

jury should take int i i

© consideration all th i

. ; ;

evidence and circumstances in the case Ge Nt a exon Son a
oJ

that gi iti
that given Sith “od ie ‘state and ihe de. In addition to the facts stated in the
i opinion in State v. Burdette, supra, a wit-
oes tie a ikencs : ness for defendant, Frank A. Blum testi-
see aad ‘ ons in a fied that he was an eye witness to th
§ correct and applica- tercation in which O’Brien lost Ae das,

ble . princi r ere were extreme
® iples of law is not
err Y
gi a. ; or, wh that Burdette and Painter were “ext ly”

homicide

ehh toe

~~ mae

-——<-
“ a ee

we


‘

+

+

m8 NG hag og be 5 hath sores pi ¥

atl

+

coke hud kt baat yit ahd cic ot ver aces ee

Ss

TRE

rece mt Na?

63 SOUTH EASTERN REPORTER, 2d SERIES

: oor eas wrong.
had a small open knife therefore did not wait pease Rt ae
a wee ‘ing bas
: d aisine the fight; that The physician so ‘gen 2 peginipen
in eee k 4 down and that Bur- agnosis of cerebra syph ase della
O’Brien was knocke about the head and shown by Hinton, ava rena teak
dette kicked siete that Painter for syphilis, and possibly A = Herat
reread 1 ’ : +o : > ate
ees brbhen but the witness believed = A canbe it a cal omic
kicked a ia O’Brien; opinion that if defendan : :
sndant did not touch Cee t of intoxi-
on ca Sek thes went after the police; cide had consumed the amoun
that the witne

’ + Ss
. by defendant’s witnesse
é cene there cants testified to :
and that upon his return to Haan fight had and had taken the two capsules hereinabove
were two Officers prescnt an ” mentioned, he would have been ee
) i Ss
ended. ‘ of and that the effect of Be kes _—
; ced the testimony ‘ ide ndant would have been co
Defendant geae  ae es the material ee ee anesthetic. The physician
er ha is substantially as follows: ney the State also testified that from
ee ae 5 and defendant purchased °* ‘ : inaction of defendant made on the -
That the witness - that the defendant a” examin. tified, he concluded that
four pints of liquor; 3 7 ae the witness tes ,
: dran a
and the witness

1quOor before the eft th oO oom 5 1 was
] h f ( b P. ] the defend nt at the time of the tria

q y ] e u olT ? a

ha h witness the def ndant, and an- a man of low aver age intelligence , that
t t the t ss, c

; is of cerebral syphilis
ortion of another 2” accurate aire the Hinton, Mazzini
other person drank th t the defendant could not pay that in addition to such
: : * an a ts; a
aes gg reer of another bottle of and ay ae:
had two drinks

ient’s hi iven;
: tests the patient’s history aie fa er 2
whiskey owned by an acquaintance. eRe the guilect: sbiodld: kee

: : blood count, and
i that the defendant oien a urological test, a :
Burdette also testified ’ a me g1 ‘ fluid should be examined.
ight “yellow jacket” capsules; pi, spinal flui
purchased eig

les; and that ted in the opinion
that he took two of the capsule ok Wicd Upon the evidence state pera
the defendant took at least two of State v. Burdette, supra, an ee
capsules evidence herein stated, the egress roa
i i the first de-
The testimony of Burdette relative to ” defendant guilty of murder 0
fight with O’Brien differs from that Of pree,

: i ; : ide the
some of the other witnesscs. According to After overruling a motion to set —

es : and
lette, O’Brien and the defendant wer verdict as being contrary to the law

peste d in the altercation when Burdette

engaged i 2

i i rt ad-
idence, the intermediate cou
‘Bien ball OS ad “be punished
treet; that O’Brien : RE |
si and vas attempting at nid teat The judgment of the trial
ness; the see air eg evi ced, defendant
ness; that he tricd to be te tia <ie. court having ery _ S iMeNE
; tees Theokrg a moved the court in arre
fondant “och OBrien and a oO aie otion was likewise overruled.
endan

: hich m

actually did touch W : an

ae On Freaks teak he, Bur- The Circuit Court of Kanawha County
O’Brien; an

i it of error holding
denied defendant a wr
dette, was dazed. defendant that the judgment of ek aged
Eee is “plain i :
Two laymen testified pees nr eek bt re county mn yt ".
Oy tag se was brou rt by
suffers from syphi ea . Gout by
t testified that the f wae ste fptgident @

duced by se aN oh cesdak aon: writ of err g

fendant is afilic

t.
é ¢ cour 2 ;
ee act with the fact tha i¢ walk exror:
and considering iE amie had drunk Defendant contends that
defendant, prior

‘ murrer to the indict-

le quantity of intoxicating (1) To npn th uash the same; (2)
een 4 : ken two capsules, pre- ment and a motion to 2 attorncy in his
: taken a it th rosecutil a
liquor and ha : barbitol to permit the Pp eke f de-

ining barbitol or a dé : ent, over objections 0
sumably containing know the opening statement, rt
kes ant did not kn “ State expects

desieativg UE ee of his acts, and fendant, to state, “The
nature and consc

90 W. Va.

drunk; that O’Briet

STATE v. PAINTER W. Va. 91
Cite as 63 S.B.2d 86

offer evidence to prove the commission of without factual basis.
the crime which for heinousness, ornery- fendant had an opportunity to remove the
ness and plain cussedness it is difficult to unfavorable impression, if any, made on
conceive.”; (3) to overrule the motion to the jury by such statement. Nevertheless,
set aside the verdict and refuse to grant we do not approve such extreme statements
defendant a new trial; (4) to overrule a by a prosecuting officer.
motion in arrest of judgment; (5) to sen-
tence. defendant to death under the evi-
dence and circumstances established in this
case as inflicting cruel and unusual punish-
ment in violation of Article III, Section 5
of the Constitution of this State, and the
8th Amendment to the Constitution of the
United States; (6) to admit improper evi- : id:
dence and to reject proper evidence; (7) = biatch of conviction or ope *
to give certain instructions offered by the ee ad oek se : y F5
State; and (8) to refuse to give certain . SAT), NMED 10 pot Ciketly preyed
instructions tendered by defendant. the accused. State v. Shores, 31 W.Va.
This record does not disclose any motion #1, 500, 7 S.E. 413; State v. Shayn, 40
to continue the case; nor does it Sea that W.Va. 1, 20 S.E, 873; State v. Alisa 3
wel aw sat W.Va. 65, 73, 30 S.E. 209: State y. Mooney
the motion to set aside the verdict of the ; : na
: : and Friday, 49 W.Va. 712, 718, 39 S.E.
Jury was based on the ground of after-dis- 657: ¢ ‘ :
: - In ruling on the propriety of the pros-
covered evidence. : , :
: ; ecuting attorney’s opening statement to the
The record and defendant's brief show jury a trial court exercises a judicial and
no grounds for demurrer to the indictment. reviewable discretion. And such ruling is
What has been said relative to a demurrer jot cause for reversal in the absence of
to the indictment applies with equal force Prejudice to an accused, unless it appears
to a motion to quash. The indictment 1 that manifest injustice has resulted from
the instant case 1s the same as the indict- such statement. State v. Simon, W.Va.,
ment in the Burdette case. This Court’s 52 S.E.2d 725, 734; State v. Lewis W.Va
reasoning in that case is sufficient to dis- ; :

hae : 57 S.E.2d 513, 527, et seq. See Thomas v.
pose of the question in the instant case

I amcant case and "State, 144 Ga: 206-8 Bie B ~ These Ws
1s supported by the authorities cited. It no error in the trial court's ruling on the

would therefore serve no purpose to repeat statement by the prosecuting attorney.
the reasoning and citation of authoritics

appearing in the Burdette case. It suffices [4-7] The next assignment of error is
to say that the trial court committed no based on the action of the trial court in
error in overruling the demurrer to the overruling the motion to set aside the ver-
indictment and the motion to quash the dict and grant defendant a new trial. This
same. assignment of error presents, among others,
[1-3] The language objected to by de three questions: (1) Was the defendant
Sealer ceed inthe opening statement by intoxicated or under the influence of drugs
the Prosecuting attorney was not supported po such eatent Rat he-was tick Se, pga
by evidence, at the time the statement aie able of premeditation and deliberation ; (2)
made. The prosecuting attorney was ap. W@S the defendant insane at the time he
Parently stating an inference drawn by him pohintisted thé ae bod (3) did the com-
from his knowledge of the facts established bination of intoxicating’ liquors, drugs and
in the Burdette case, which was tied prior syphilis render defendant mentally incap-
to the instant case. The record in the able of committing the crime charged
Burdette case discloses that O’Brien was 48ainst him?
killed in a brutal, savage encounter, and
hence the statement of the Prosecuting at- w:
torncy in the instant c

But counsel for de-

An opening statement in the trial of a
criminal prosecution is not exactly analog-
ous to an argument to the jury, but the
similarity is sufficient to permit the appli-
cation of principles enunciated in opinions
dealing with improper statements made by
counsel in arguments.

At common law voluntary drunkenness
as considered an aggravation and not an
ase is not entircly excuse for crime. Permanent insanity, ag.

r
'
t
‘
:
{
H


Camera portrait of a ruthless killer. He killed
a man for the use of his large black limousine.

- D. ANDERSON of Chandler’s Branch, West Vir-
ginia, tramped through the underbrush near Edge-
wood Drive and muttered angrily under his breath.

| He was looking for golf balls which he had lost

while playing on the links on the other side of the
wood. He had found none. Wearily he straightened. It
was half past four and not too light; although at this
season—April 18, 1946—daylight lingered elsewhere
until well on into the evening.

As Anderson was about to turn back toward the club-
house his attention was caught by the abrupt stopping
of a car on the road. He was on the embankment a few
feet above the highway and thus could see without being
seen. He watched two men get out leaving one behind
the wheel.

The two scrambled down the bank and into the
underbrush. A moment later Anderson heard one say:
‘Let me have my briefcase.” Then, as they entered the

~ wood, the speaker raised his arms and cowered in terror.

“No! Don’t do that!” he cried. ‘Don’t! Don’t!” But
almost before the echoes of his appeal had died, two
shots rang out. The man swayed and fell forward.

Horrified, Anderson ‘started down the embankment.
At the same moment, one of the pair who had gone into
the wood came crashing out., He dashed to the road and

leaped into the car. A moment or two later it disap-

peared around the bend. Anderson was unable to make
out the license number.

Chagrined, he continued on down to where the fallen
man lay. The minute he reached the still figure he knew
that it was beyond all human help. The man lay doubled
up, his hands pathetically outstretched as though to
ward off the bullets which had brought him down.
There was blood at the throat and on the chest. Ander-
son touched one limp wrist. There was no pulse.

For a moment Anderson stood still, fighting off nausea.
Then he made his way back up the bank _ ran to the ,
nearest phone and called the authorities. e call com- - r ‘ ~
pleted he returned to the scene and waited. In a very iby D. W. CHANDLER
few moments he was relieved to hear sirens and ran to
the roadside to signal the cars.

@ HERIFF D. Earl Brawley arrived first. Close on his
heels came Coroner Max J. Goldman and Troopers
W. L. Pence, W. R. Seal, J. M. Ballengee and R. G. Coen.
The coréner went directly to the corpse. The other
officers gathered around him and watched grimly while
he made his examination. ‘Anderson waited a little
distance away.

“One bullet through the neck at the base of the skull,”’
the coroner announced. “I think it’s lodged in the jaw ’

aad

MURDER MOTIVES VARY

here. The other went into the body under the left WITH EACH DIFFERENT
shoulder.”

“Any identification?” the sheriff asked.

“Just a moment,” the coroner said. He went through CASE THEREFORE THE

the slain man’s pockets. “Yes, here we are, a wallet
with money in it and'a social security card; a driver’s
license and some Iectters.”

He handed the wallet to the sheriff, who inspected POLICE WERE BAFFLED
the identification with interest. “Red Hill!” Brawley
exclaimed. ‘Denver Hill! I’ve never met him but he’s ;
one of the most prominent men in Charleston.” WHEN TUKIs ONE DIDNT

“Active in the Democratic Party, isn’t he?” one of
few the troopers asked.
| “Very,” the sheriff replied. ‘According to a letter here a pas
| he was also employed at a credit reporting agency. SEEM TO HAVE A REAL
| And here’s the registration number of his car, 177. It’s
| a 1941 black sedan.” ;

“We'll send an alarm out right away,” Trooper Pence
said.
| “Do that,” the sheriff agreed. “It may have been Hill’s
| car he and the killer came in.”
As the coroner supervised the removal of the body to
Cunningham Mortuary in Charl&ston, Troopers Pence

REASON FOR WAPPENING

| 22

| S42. Detectwe
: Nod 1 $4le


:
‘
i
§
i

Re

Toll of the

TERRIFIED

HUGS

and Seal started back to headquarters. At the same time,
Ballengee and Coen commenced a thorough search of
the terrain where the slain man had been discovered.
The sheriff joined Anderson by the side of the road. In
reply to the sheriff’s questions Anderson related what
he had seen.

“T was too far away to see the killer’s face clearly,”
he said. ‘He had his hat pulled pretty well down any-
way. But I did get the impression that he was young
from the way he moved.”

“Do you think you could identify him if you saw him
again?” the sheriff asked.

“If he were dressed the same as today and I saw him
run I’m pretty sure I could,’’ Anderson replied. ‘“‘He had
an unusual gait.”

“We'll let you know when we think we’ve got him,”
the sheriff said. “It isn’t every day we get an eye-
witness to-murder.”

“I wish it had been anyone else,” Anderson said with
a shiver. “It was sickening.” -

He set off through the woods toward the golf course
and the sheriff returned to the scene of the crime. “Got
anything?” he asked the troopers.

Coen nodded. He held up a gold cigarette lighter.
“It was near where Hill was lying. Has the initials A.J.
qn it. It probably wasn’t his.”

“It’s an English lighter,” Ballengee contributed. “I
have a silver one like it. As far as I know, there are only
two or three places where they sell them in Charleston.”

As soon as you finish here then,” Brawley said, “you’d
better get back to town and cover those stores before
they close.”

“Td say we’ve already finished here,” Ballengee re-
plied. “This tough grass doesn’t show up footprints.
We've gone over every square inch of the clearing and
haven’t found another thing besides the lighter.”

“Let’s not waste time around here then,” the sheriff
said. ‘‘We’ve lots of work ahead of us.”

ACK in Charleston the sheriff drove at once to the -
Hill residence at 1410 Woodland Drive. Mrs. Hill
answered the ring. As gently as possible, Brawley broke

‘the tragic news to her. For a moment she was com-

pletely overcome by shock and gricf. Finally she was
able to control herself, sufficiently to answer questions.
She could add nothing, however, to the sum of the
sheriff’s present information. She could not imagine
who would have wanted to kill her husband.

“To be sure, some people disagreed with him on poli-
tics,” she said, “but surely that would be no reason for
wanting to kill him. He was a member of the Masonic
order and sometimes helped out on committees to im-
prove the conditions among underprivileged people. tHe
might have run into some trouble in that way, but he
never mentioned anything like that.”

The sheriff thanked the widow and headed downtown
where he dropped in at the state police barracks and
conferred with Lieutenant C. P. Taylor. “Pence and
Seal gave you the report on the car, of course,” he said,
as soon as he had briefed him on the background of the
case.

“They did,’’ the lieutenant replied. “I sent them down
to the Commerce Clearing House where Hill worked to
see if he had been driving his own car when he left.
They said he had. I sent out an alarm for the car on
the teletype.”

“What time did Hill leave?”

“At four-twenty.”

“Anybody have it in for him where he worked?”

“Not that Pence and Seal could discover,” Taylor re-
plied. ‘‘They said at the clearing house that Hill was
well liked and that he was a successful salesman and
that he got on fine with everybody.”

“And still he got killed,” Brawley mused. “He hadn’t

This man’s lawyer claimed that he had such a low
type of intelligence that he wan not responsible.

U Lut MO aN.3 r) 4s b ie 1 & W ° V rest e

12 Aug 1991

, Elkins, WV
Dear Watt:
This past weekend I found out that I had an aunt who was murdered
by her husband and the husband was executed.

Barbara Carpenter Clemmons, and her eight children, were cut to pieces
with an axe by her husband and their father, Abel Clemmons in 1805. I am

told that Abel was tried and executed in Harrison COunty and he was hanged
in 1806.

~~

, Do you have anything on this incident? Needless to say I will be
researching this crime exhaustively and if you will let me know what you
know I will fill in the blanks.

Hope you are well and the project is going well. I look forward
to hearing from you.

Sincerely

David Armstrong
P.O. Box 1933
Elkins, WV 26241


 ] cs

184 The Allegheny Frontier

About 1806 incendiaries applied the torch to property of George
Avery, who owned a flourishing farm at Lee Creck near
Parkersburg. Losses included a barn with two thousand bushels
of grain, several stacks of grain, and horse-operated grist and
saw mills. Because of lack of evidence, the culprits were never
convicted. Resentment and superstition appear to have inspired
some charges of arson. Jane McLaughlin, a “Spinstres: was
accused of burning the barn of James and Mathew Ralston of
Monroe County, but was cleared of the charges. But Milly, a
slave belonging to David Robe, did not fare so well. Her crimes
included not only burning her master’s barn but also attempting
to kill his son and administering medicine, any one of which was
a capital offense. Milly was tried at a special called session of
the Monongalia County Court and sentenced to death by hanging
on September 1, 1798. Her accomplice in the burning of the
barn, a slave of Barsheba Ferguson, was burned in the hand
and given thirty lashes.*°

More than any other crime, murder was capable of outraging
frontier sensibilities, and it usually evoked the death penalty.
The incidence of murder appears not to have been unusually
great, but its perpetration drew the scorn of the pioneer even
when the victim was a slave. In 1818 Robert Curry of Monroe
County was arraigned for “felloniously wickedly & with malice
aforethought” beating his Negro boy, Sam, with a cowhide “in
and upon the head breast back belly sides & other parts of the
body” during which Curry gave Sam “several mortal strokes
wounds & bruses.”

One of the most spectacular murders in frontier West Virginia
occurred at Clarksburg on the night of November 8, 1805, when
Abel Clemmons killed his wife and eight children with an axe.
The incident aroused the entire Monongahela Valley. Joseph
Campbell, publisher of the Monongalia Gazette at Morgantown,
immediately issued a special broadside entitled Murder—Horrible
Murder! A few months later he provided the public with a

25 Cuming, Sketches of a Tour of the Western Country, p. 112; Minute Books,
1804-1821, for November 29, 1806, Monroe County Court Records; James Morton
Callahan, History of the Making of Morgantown, West Virginia: A Type Study
in Trans-Appalachian Local History (Morgantown, W. Va., 1926), p. 125.

Mountaineer Ways and Folkways 185

complete account of the event in a publication which included
not only Clemmons’ confession but also a letter which he wrote
his brother the day before he was hanged and the exhortation
of the judge who tried and sentenced Clemmons. The account
of the Clemmons murder became a “horror classic” of the
frontier and was reprinted many times.”°

Other pioneer residents were hailed into court when they
attempted to augment the limited supply of specie and paper
money with issues of local manufacture. Counterfeiting, how-
ever, required skill and materials which few settlers possessed.
While it would be unwise to generalize concerning its incidence,
it was probably more prevalent in those areas where towns and
considerable public traffic made the passing of spurious currency
likely.”

Seldom was the dichotomy between professed standards and
actual conduct more striking than in the case of gambling.
Among pioneer men cardplaying, cockfighting, and horseracing
provided outlets for sportive instincts. Although they were
denounced by most churches, they continued to thrive. With
the use of lotteries approved by laws as a means of raising funds
for both schools and churches, enforcement of laws against
gambling and gaming appears to have been in many areas
desultory, to say the least. Moreover, the ambivalent attitude
regarding the various forms of gambling produced confusion
in the public mind.

Mores regarding gambling varied with localities. In 1797
both Charles Town and Smithfield featured horseraces with
elaborate rules and sizable purses. As early as 1808 Wheeling
had a racetrack and purses up to sixty dollars. On the other
hand, the owners of a faro bank and betters on horseraces in
Monroe County were arrested, and John Vance of Ohio County
wvas summoned to show cause why he should not be prosecuted
for “having unlawfully played at a place of public resort in the

26 Subject Indexes to Monongalia, Ohio, and Brooke County Court Records;
Minute Books, 1804-1821, for April 14, 1818, Monroe County Court Records;
Boyd B. Stutler, “Early West Virginia Imprints,” Separate from the Papers of the
Bibliographical Society of America, XLV (Third Quarter, 1951), 2-3.

27 Minute Books, 1815-1819, for April 17, 1815, Ohio County Court Records;
Minute Books, 1804-1821, for April 26, 1819, Monroe County Court Records.

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| Bex, Weber stated that her’ hus-
| band had left with Dick Collins on
the previous morning to go to Blue-
field to try for a job at the meat
packing plant there. The woman
explained further that both men
had lost their jobs in Charleston
due to the lay-offs after the war
and had been out of work for some
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This information dovetailed

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beautifully, as both Collins and
Weber answered the description of
the two men seen getting into Hill’s
car. The investigators returned to
the sheriff’s office in the, county
courthouse and looked up the dos-
sier on Collins. Now they had his
photograph, fingerprint classifica-
tion and complete description. Mar-
vin Weber’s picture and descrip-
tion were obtained from the rec-
ords of the company where he had
been employed during the war. This

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data was transferred to “wanted”
circulars for distribution to police
departments and identification bu-
reaus in West Virginia, Kentucky
and Ohio in the hope the fugitives
would be recognized by some alert
police officer.

This, however, was unnecessary.

After a twenty-mile drive during
which they had stopped at numer-
ous tourist resorts, Troopers Bal-
lengee and Seal caught up with
the fugitives. The men identified
themselves as Richard Lee Collins,
22, and Marvin Curtis Weber, 21,
and admitted almost at once that
| they had killed the driver of the
|Packard sedan, abandoned below

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the Kanawha View hotel.

Both were armed with .32 cali-
bre revolvers and when Trooper
Ballengee examined the one taken
from Collins, he found three ex-
ploded shells in the chamber. After
handcuffing the prisoners together,
|Ballengee notified the Charleston
post of the capture and asked that
additional men be dispatched to
| bring the fugitives in.

It was an unusual gathering of

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police officials who sat down in
Sheriff Brawley’s office to hear the
story of Hill’s murder. Collins’ re-

cital was indeed something to mar-
vel at. He confessed that he and
Weber had bought the guns at two
different pawn shops in Charles-
ton on Monday, April 15, for a
holdup they had planned to stage.

“We had to have a get-away car,”
Collins related, “so. we decided to
take one from a motorist. On
Thursday, Marv and I went to the
traffic light at Lee and Truslow
Streets, where we waited 45 min-
utes before this Packard stopped
for the red light. We asked the
driver for a lift and after we got
into his car, I told him to drive
beyond the Edgewood Country
Club. When he hesitated, I flashed
my gun on him and told him I
wouldn’t stand for any foolishness.”

When they had’reached Magazine .

Hollow, Collins continued, they had
ordered the driver to stop and get
out of the car.

“He throwed up his hands and
I got frightened and pulled the
trigger. I don’t know if he was try-
ing to hit me or not but after the
shooting, I was awful scared. I just
got in behind the wheel and took
off.”

Collins told of driving to Route
60 where they had run out of gas
and had abandoned the car. Then
he and Weber. walked to the Kana-
wha View hotel where they stop-
ped for the night.

OTH men signed the confes-

sion and they were placed in

separate cells in the county jail.
They were arraigned in the
Charleston Circuit. Court on Mon-
day, April 22 and indicted on a
charge of first degree murder by
the intermediate grand jury which
was in session. Circuit Clerk Mal-
colm Hix read the charge and both
men entered a plea of not, guilty.
They were returned to the county
jail to await trial in the Kanawha
County Superior Court, on May 14.

On that day, Collins and Weber
were brought into Judge Cyrus W.
Hall’s court by four armed depu-
ties. Prosecutor Frank L. Taylor
handled the state’s case and after

Judge Hall overruled a motion for
a change of venue, Attorney J. V.
Brennan, counsel] for Collins, moved
that separate trials be conducted
for the two men. The judge agreed
and Richard Collins stood trial on
May 15. Prosecutor Taylor sum-
moned state’s witnesses to the
stand who testified that bullets
fired from the gun taken from Col-
‘lins compared with the lethal slugs
recovered from Hill’s corpse.
Among the various prosecution wit-
nesses were the proprietors of the
Charleston pawn shops who iden-
tified Collins and Weber as the men
who had purchased guns from them
on April 15.

Collins took the stand in his own
behalf and read the confession he
signed in the presence of Lieut.

“Taylor and Sheriff Brawley. When

asked by his counsel if he had kill-
ed Denver Hill, he replied, “Yes,”
in clear tones.

Judge Hall charged the jury be-
fore the noon recess on Wednesday,
May. 15. After deliberating an hour
and ten minutes, the jury brought
in a verdict of guilty, without rec-
ommendation for mercy. Judge Hall
passed sentence on Richard Collins
immediately and decreed that he be
put to death by hanging at the
state penitentiary at Moundsville,
on September 14. The judge grant-
ed the condemned man a 60-day
stay of sentence to permit appeal
to a higher court, but over-ruled
defense motions for an arrest of
judgment and for a new trial.

Eighteen hours after he had
heard his pal sentenced to die by
hanging, Marvin Weber, extremely
nervous and sobbing openly, ap-
peared before Judge Hall on Thurs-
day and entered a plea of guilty
to first degree murder, throwing
himself on the mercy of the court,
and gambling for a life sentence
instead of death on the gallows.

Judge Hall reviewed the evidence
against him with Prosecutor Tay-
lor and Defense Attorney Jackson

Altizer, and sentenced Weber to
life imprisonment in the State
Prison.

——

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turned home during the night. The
officers went to his office and there
learned that he had planned to
take a business trip the previous
afternoon and it was not known
just when he would return.

Some inquiries resulted in the in-
formation that Virginia had been
employed in a book bindery. The
officers drove to the place and
questioned some of the girls em-
ployed there. None knew anything

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about a man with a crooked mouth,
or who otherwise fitted the de-
scription of the gunman. They were

Virginia on the way to or from
work.

One said, “There was a man who
tried to pick her up one evening,
| She told me. She asked me to walk
, with her to her car stop but the
man didn’t show up and she never
|mentioned it again.”
| Detectives who were making a
| Systematic canvass of Virginia’s

| | home neighborhood in search of

someone who might have seen the
young woman leave home, brought

asked if any man had ever met

¢

in a 17-year-old boy who had an
interesting story to tell.

He said he was standing on the
corner waiting for another fellow
when he saw Virginia come out of
her house and start down toward
the car stop. Just then a man who
had been standing in a darkened

_ doorway nearby stepped out and
“ overtook Virginia and the two had

talked for a minute or so. He said
he could not hear what they were
saying:and would have paid no fur-
ther attention to them if they had

‘not been having some kind of an

argument. The girl started to turn
away just then and the man-pulled
out a gun and showed it to her.

“Did he point the gun at her?”
Zilavy asked.

“No, he just showed it to her and
then put it back in his overcoat
pocket. He spoke louder then and
I heard him say, ‘You’re coming
along with me.’ He seemed pretty
mad.”

“How far were you from them
when he showed her the gun?”

“Not. more than fifty feet, at
most.”

“All right, and then what hap-
pened?”

“Why, the car came in sight then
and the girl walked down to the
stop and got on. This guy got on
right behind her. That’s the last
I saw of them.”

“Was he anyone you ever had
seen before?”

“Oh, I don’t know. I couldn’t
see his face. All I know is that he
was heavy set and not very tall.”

The detectives thanked the boy
and he was driven home in a po-
lice car which pleased him im-
“mensely.

EVERAL questions arose in the

detectives’ minds. Who was the
man waiting in the doorway? Was
he the one who had made the tele-
phone call? It seemed likely, for
how else would he know when the
girl would be coming out? Surely
she’ would not have gone out or
made a date with him unless she
recognized his voice. But why would
she agree to meet the type of man
who would threaten her with a
gun? And why didn’t she call for
help when she entered the car?
The ‘motive for the crime had the
detectives puzzled. The whole thing
failed to make sense and the day

‘


COLLINS,

Richard,

wh, hanged WVSP (Kanawha) October 11, 1946.

srw ee

John: Anderson had a front row
seat at a murder drama on April
11th, 1946. Admission was wierdly
inflated. It nearly cost him his
life.

It was an open air theater—a

sprawling thicket fringing the °

eighth hole of a golf course near
Charleston, W. Va.

A scream of brakes ended the
crescendo overture of a roaring
motor.

Anderson parted the curtain of
leafy branches behind which he
had been hunting lost balls. He
saw a big black sedan in the
middle of Magazine Hollow Road,
dust ~swirling up around it. The
right hand front door swung
open.

“Okay, chum. We get out here.”

The first lines were spoken
coldly, impersonally. But they
were tight with menace, and the
one-man audience crouched low,
watching. .

A tall, hatless young man in
flashy blue suede jacket and gray
tweeds backed out. He gestured
impatiently with a revolver. A
stocky man of middle age clam-
bered hesitantly to the road. He
wore a neat blue double-breasted
and tan felt hat. The impassive
faced youth stepped behind him.
“Get moving.”

The man walked with lagging
steps through the thicket. He
passed within ten feet of Ander-
son, and the helpless spectator
saw there was less of fear than
troubled indecision in his strong,
evenly molded face. The face of
the gun-toter was narrow, evil’ in
its stony expression of apathy and

insolent curl of lips. His. sandy
hair was wavy,
They. went ‘on’ into a. little
clearing. Pui ee
This ll do. es 2937
The captive halted, half turned.
“Hold it!” aa eee eee Ne
_ The.man’s lower jaw dropped
when leaves crackled under’ the
measured backward steps of his
captor. Then he cried, ‘What are
you doing? You said you were

‘going to tie—”

“You gotta go, chum.” Coldly,
impersonally. But: hot flame spat
from the gun. The’ bullet flashed
over the man’s ducked’ head,

Denver Hill, the victim, was shot
down from behind in this murder
drama.

clipped twigs an inch from Ander-
son’s ear . . . whined away.

The-man flung his: arms wildly
back of. his bowed head. “No! . .
for God’s sake! ... no!”

Flame spurted twice more from
the gun. The captive ‘disappeared
from: the ‘sight of the hidden,
fright-frozen spectator. The execu-
tioner stepped quickly forward,
stooped where his victim had
stood. He straightened, smirked,
and strode out of the thicket.

A door slammed, and clash of
gears and roar of motor sounded
a harsh finale to the atrocious act
of the devil’s understudy.

Anderson’s limbs thawed. He
walked dazedly. to where the man

lay, on his back; eyes fixed wide’

in -a stare of utter astonishment.
Gingerly, he felt for heartbeat:
There was none.

Sheriff D. Earl Brawley recejved
Anderson’s call from the Edge-
wood Country Club at 4:40 P. M.
In the next ten hectic minutes, the
veteran crime fighter sparked all

‘ the powerful forces of the Law

within Kanawha County into
action,

State troopers from: the Mont-
gomery Barracks and deputies,
alerted by radio, raced to fling
barricades across main highways
stemming from Charleston. Ander-
son said .the fugitives headed
south, so the first two were
installed below Belle, on -combined
Routes 60 and 21, and Marmet, on
Route 119, both ten miles from
the capital.

Other officers fanned out onto
back and side roads in their prowl
cars,

$3)

LATEST DETECTIVE MAGAZINE, Summizer, 1948

Hunting for clues at scene of
crime.

16, and Charles William, 14, ran
eagerly into the living room while
their mother sat in stunned silence.
Richard looked puzzledly at the
grim visitor, and said, “Oh, ‘we
heard a car and thought it was
dad. You see, this is . . . Mother!
. What’s the matter?”

Brawley clenched his fists and
fervently wished he had _ his big
hands around’ the neck of the
inhumanly callous, wretched youth
whose trigger finger, pressed non-
chalantly, had torn the father away
so suddenly from this devoted
little family.

When the boys had gone out,
arms about each other’s shoulders,
sobbing convulsively, Mrs. Hill
murmured, “Denver always came
home early Thursday nights, and
we all went to the movies. He—
he called it ‘Family Night.’,”

The widow said her husband had
expressed no fears recently,. and
knew of no. especially ~ bitter
enemies. She mentioned, however,
that there had been a prowler
about the house the previous
Monday night. Hill hadn’t called
police, but had pursued the man
a block without catching him. He
had observed only that his quarry
was tall, huskily built, . black-

26

haired,—he was hatless—and was:
so fleet of foot he must have been

fairly young.

“Do you think he ‘might, have
been after something in particu-
lar?” asked Brawley, pondering
deeply. Bs

“We thought it was just an

ordinary burglary attempt,” said
Mrs. Hill, * ”
"Quick search through the vic-
tim’s recent correspondence and
papers turned up an I.-O. U“for
$750, which the sheriff auto-
matically pocketed without close
study. Returning to his office, he
found Taylor impatiently awaiting
him.

“We're up against another no
_.known enemies case,” said the
‘lieutenant. “His business associ-
ates don’t believe anyone had a
grudge against him ... he was too
likeable and regular a fellow. They
said he was in the best of spirits
when he left the office at four-
twenty. He bought a fistful of
Peter Schuylers and that pack -of
cigs at the lobby stand, then got
his car tat a parking lot around
the block and drove off. .. alone.
That was about four-twenty-five.”

“And at about four-thirty he
was taking a one-way walk into
that thicket with a gun at his-
back,” said Brawley, He sank into
his chair and sighed heavily. “Of
course any man in politics makes
enemies, but .they’re rarely of a
homicidal type.”

“This killer sounds like a pro-
fessional, from the way Anderson
described hig actions,” said Tay-
lor. “I figure he was hired for the
job. If he was on_ his own,
wouldn’t’ he have grabbed the
pocketbook and watch?.. . either
before the shooting, or afterward?”

“Seems so,” replied the sheriff.
He-drummed blunt fingertips on
the desk top awhile. “Hill hasn’t
been pushing any reform crusades
lately, but a few years ago he
touched off a-gambling cleanup.
There was a Rex Cahill—”

“Say ! I’ve heard Cahill is around
again, trying to stage a comeback,
I think he’s mixed up in peddling
moonshine from the hills too.”

Brawley handed Taylor the
I. O. U. “Look into that, will.
you?” he asked. “I’ll phone Hill’s
political pals and see if I can get
a lead on Cahill.”

The first two calls were duds.
The third edged slightly into the
picture a run-of-the-mill party
member who was embittered at
Hill because he had not gotten a

SOM MENT PTT

r

job in the parks department.
“This fellow seems to be a bit
off the beam mentally,” said the
informant. “I -don’t know who he
is, but ‘Red’ told me a couple of
times the guy was pestering him
- Seemed to think ‘Red’ could
get him on the payroll witha

snap of his fingers. I don’t believe °

he made any threats, though. ‘Red’
wasn’t exactly worried.”

The persistent sheriff finally
struck a man who laid another
block in the foundation supporting
Suspicion against Cahill. The poli-
ticlan and Hill had encountered
the tall, dark-featured gambler as
they came out of the Masonic
Club on Tuesday afternoon. He
said Hill voiced an amiable greet-
ing, but Cahill sneeted, “When are
you gonna clamp the lid on dom-
inoés and marbles, Blue Nose?”
and hurried by.

Pressed for details, the victitn’s
friend remembered suddenly a
young man had _ been walking
close to the curb at the time. “He
laughed as if he.thought Cahill had
made the world’s smartest crack,
I don’t know whether they were
together. May have been, What?
Oh, he was about twenty, medium
height, and solid built. Hair? .. ,
kind of reddish blond.”

“Was he wearing a blue jacket ?”
asked Brawley eagerly.

“No, a blue suit, though. No
hat.”

The operato? cut in with an
emergency call, and the sheriff
quickly broke off the conversation,
Trooper J. M. Ballengee was
phoning from Alloy, a suburb
south of Charleston. Hill’s sedan
‘had been found, abandoned!

“It’s on a sideroad near the
Kanawha View Hotel, just outside
of town,” said Ballengee. “Jt must
have been there some time. because
the motor’s cool. There’s nothing
wrong with it; and the gas tank’s
half full, It's got. a radio, and
these guys must have heard the
alarm; and either lammed it on
foot or hijacked another car.”

“Bring it in to the police garage
as fast as you can,” said Brawley.

Both the sheriff and Taylor
immediately had orders flashed by
radio for.deputies and troopers. to
converge on the sector and comb
it.

“ll go on down,” ‘said the

lieutenant. “Oh, about this I. O. Uz
It’s signed by a Harry Berger. He
lives down in South Charleston,
and runs a small restaurant there.
I made a couple of calls. Hill

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HAIGHT

1 inch from Ander-
‘hined away.
g his arms wildly
‘ed head. “No! ..;
...nol”
{ twice more from
aptive disappeared
of the. hidden,
-ctator. The execu-
quickly forward,
his victim had
ightened, smirked,
of the thicket.
med, and clash of
of motor sounded
> the atrocious act
derstudy.
imbs thawed. He
to where the man
<; eyes fixed wide’
itter astonishment.
‘elt for heartbeat:

‘| Brawley received

from the Edge-
“lub at 4:40 P. M.
hectic minutes, the
ighter sparked all
orces of the Law
‘ha County into

s from: the Mont-
ks and deputies,
io, raced to fling
ss main highways
Charleston. Ander-
fugitives headed

first two were
Belle, on combined
?1, and Marmet, on
th ten miles from

s fanned out onto
oads in their prowl

x

tos,

“No rehearsals for this

drama—but the action

‘was more dramatic and
terrifying than any stage.

play—ending in a black-
out for the innocent vic-
tim.

State and local police teletypes

‘chattered out over a wide area

descriptions of the car, licensed
177, and the young killer; together
with Anderson’s vague observation
that the driver wore dark clothes,
had black hair, and appeared older.

Police Chief Arnold Brabban
dispatched men to the city lines

and a score of detectives to stand —

“watch in the known haunts of

criminals.

The sheriff, receiver clamped to
his ear, nodded at Lieut. C. P.
Taylor, state police, when he hur-
ried in, and said, “Just checking
with Motor Vehicle—Hello, there.
Yes, a forty-one Packard, black—

What! You're sure? All right,
thanks.” ‘

Brawley slammed the  instru-
ment on its cradle. “It’s ‘Red’

Hill’s car! And the way Anderson
described the victim,’—he cata-
pulted his big frame from the
chair, crushed on his broadrimmed

gray hat—‘it looks like Hill got’,

taken for a ride. ELet’s go.”

Brawley and Taylor found Dr. ;

Max Goldman examining

in a little knot of persons, already

examiner ‘stepped aside. je
glance confirmed the sheriff’s sts-
picion. :

The victim was Denver Hill,
who had risen at the age of 39 to
a position of considerable power in
statewide politics. He had. rated
high in popularity in Charlestown
since the days when,
affectionately as ‘Red, he had won
honors for the high school on
gridiron, basketball court and

attracted to the scene. The x <

the |
corpse, and Andersom standing by |

known ,

Denver Hill was taken for a ride in his own car.

cinder track.

“He was shot down from be-.

hind,” said Dr. Goldman grimly.
“One bullet. entered just below
the left shoulder, probably is
lodged in the lung: The other,’”—
he displayed a crimsoned lead slug
in the palm of his right hand—
“went through the neck. I—uh—
found it in his mouth.”

The sheriff and Taylor inspected
the grisly object, and agreed it
was of 38 caliber. Brawley pocket-

- ed it, and asked, “Anything else,

doc?”

Sheriff D. Earl Brawley solved the
case.

ED LEAD

‘“Death was instantaneous.
That’s all, in my line. But here’s
a puzzler for you officers . .. he
wasn’t robbed . . . except of his
car, of course. There’s nearly fifty

‘dollars in his wallet, and his wrist-

watch is platinum, That stone in
his stickpin is worth a lot too.”

.Taylor beckoned to Anderson.
The man excitedly repeated his
story. “Why, it was just like one
of those gang killings back in
the twenties,” he wound up. “And
you darn near had two bodies out
here. That bultet’s singing in my
ear yet.”

“You say the killer stooped
over at this spot here, then sort of
smiled and ran out?” asked the
lieutenant. When. the witness
nodded, he looked inquiringly at
Dr. Goldman. The medical ex-
aminer shrugged, and said, “I
don’t see what he could have
picked up. The pockets contain
some coins, a fountain pen, pencil,
notebook, handkerchiefs, silver
lighter, an unopened pack of cigar-
ets ... everything you'd expect a
man to be carrying.”

Swift search of the scene un-
earthed no clues. Brawley sped
back to town; Taylor and Ander-
son riding with him. He let Taylor
out at the Commerce Clearing
House, where Hill had been
employed;and left Anderson
scrutinizing the rogue’s gallery at
headquarters. The sheriff then
drove to 1410 Woodland Dr., and
gently informed the_ victim's
attractive wife, Louise, of the
tragedy.

Hill’s two robust sons, Richard,

25

a iat oan ose dink


tisetatt eatin anergy titye

ties test,” he said. “The o

He was quickly ushered into the
latter’s office where he blurted out
excitedly: “I just heard the news
about ‘Red’ Hill’s murder! I saw the
two killers!” :

“ When the man was seated, Braw-
ley fired questions at him. “When

was this? And where? What did they

look like?”

He began: “About four-thirty this
afternoon, I was standing on the
corner of Lee and Truslow Streets
waiting for the lights to change,
when I saw these two fellows mak-
ing for Hill’s car which was tied up
in traffic by the red light. One of
them jerked open the right front
door and slid into the seat alongside
Hill, while the other one got in the
back. Hill looked at them kind of
funny. The car disappeared in the
direction of Edgewood Drive. I

.didn’t think anything more. about it

until a few. minutes ago when I

.., heard about his murder over the
fi radio.” ©. °

The man’s description of the kill-

- ers tallied perfectly with that given

by Jack Anderson, the eye-witness
to the murder. The informant was

warmly thanked for his help. and

excused. .
“Tf that man’s story is true, and
there’s no reason to doubt it,” rea-

- soned Brawley, “the killers were
_). just a couple of punks out for a.
»... quick heist.”

“But why did they have to com-
mit murder?” protested Taylor.

“Why not just relieve Bill of his

car and money and leave him?”
“T’ll tell you why,” replied Braw-

ley, thumbing a match into life and

lighting a cigarette. “They killed

Hill because they were afraid he

would identify them later. It’s my
guess they both have records.”

Just then, the door opened, and
Dr; Goldman entered. He laid two
lead pellets on the. sheriff's desk.
“Only one can be used for a ballis-

BEST TRUE FACT DETECTIVE :

rhage See Dire Nee De Si
Da es eS ea ate
Rita Scien Pa Pe Ee

ther one’s. sign of the mi

Sinn SAP ieee

DEVOTED — Everyone knew
that Denver Hill and his lovely
wife had’ a perfect relationship; :
their home life was very happy!

HOT CLUE? — “I'm not so
sure the man was here only trying
to rob» your house, : Mrs. Hill... |

think there may be=more. to it!”

THE BODY — “Why — it’s
“Red” Hill—one-of the best ath-
letes the town ever had! He's a
big shot here. in politics, tool”

‘ 3
PP ee ae an x
PR RENE Warren v4

too badly bent out of shape.”

Brawley examined them and nod-
ded. “How did the autopsy go, Doc?”

“Hill was shot twice,’ answered
the physician. “One of the bullets
entered just below the left ear and
penetrated the brain. The other one
plowed through the left shoulder,
passed through the right side of the
body and pierced a lung. Either

-* bullet would have caused instant

death.” ;

Brawley dispatched the slugs to
the Montgomery barracks where
Sergeant Boone of the State Police

Criminal Identification Bureau »

would compare their markings with
those on file. Before leaving, Dr.
Goldman reported that the slain

man’s widow had been to the mor-

tuary and had formally identified
the body as her husband’s.

At this juncture, Trooper Guthrie

entered to say that he and his men
had made a thorough search of the
murder scene without uncovering a
~-single lead to the killer’s identity.
“He said they could find neither tire

~ nor footprints; nor was there any
ssing third bullet —

sR DET
oa

‘fired by the unidentified

killer.
. The telephone’s shrill ring and its
subsequent message galvanized Tay-

lor and Brawley into feverish action. °

“This is~ Lieutenant George Mc-

Danald, United States Army, Sher- ~

iff,” came a voice. “I’m calling from

Cedar Grove. I caught the police

broadcast tonight as I was passing
through Alloy. As I was listening to
it, I spotted a black Packard, license
number 177 parked on Highway 60.
It looks abandoned.”

“Good work!” enthused Brawley. -

“Thanks for the tip, soldier. We’re

on our way!”
= * *

CCOMPANIED by Troopers Bal-

lengee and Guthrie, Brawley
and Taylor raced to the suburban
town of Alloy, southeast of Charles-

. ton where they located the Packard

without much trouble. Using one of
the squad cars as a tow, they hauled

Hill’s car to the Montgomery bar- -.
racks. A microscopic examination by |
. technicians failed to reveal a single

fingerprint other than those made
by the slain man. It had apparently

been wiped clean. eve ties
“Pretty clever,” nodded Brawley

disappointed. “‘They may be punks, ©

but unfortunately they certainly

’ know the answers.” lh NS
A search of the car’s interior failed

to uncover the missing cigars or re-

veal any indication that they had.
‘been smoked by the killers. The

ash trays were examined and found

to contain cigarette, but no cigar a

ashes. va fe

“That means they still have them,” os

said Taylor. “I don’t know why we’re

“paying so much attention\to a few =~
lousy cigars, but I’ve got a hunch |
it’s going.to trip them up!” 95)
With their quarry now apparently
fleeing on foot, new broadcast warn-.

ings were issued to all prowl cars
with instructions to be on the look-

out for them. Lieutenant Taylor .

ikef


‘or biggest thrills __

n detective cases ose

BUN even vitae

2. now! ~.

gathered every available trooper and

divided them into two groups. To —
Trooper
.Gathrie, he instructed, “Take your

‘the detachment. under

men and cover the district south of
Belle and north .of Cabin Creek.

side road you see! I don’t care how
long it takes: I want those killers!”

~ To Trooper Ballengee’s squad he

ordered an exhaustive search made
of the section from the barracks

north to Cedar Grove. “Be careful,” ie

he warned them. “They've already

ing to lose.” ol)

. Before returning to Charleston,
the officers received more bad news.
Sergeant Boone reported his failure
to match anything in his files with
the markings on the murder bullet.

. “Our best bet is to‘rush it to the
FBI lab in Washington,” he sug-
gested. “Their files are much more
complete than ours.” * i.

“Good idea,” approved Taylor.

“rush a man down there at once.”
Before returning to his office,
Sheriff Brawley and Lieutenant
Taylor drove to the political club on
Capitol Street where Hill had been
a member. They found the murder
the chief topic of conversation. Ques-
tioning the members failed to elicit
a plausible motive for Hill’s murder.
‘The slain man’s intimates described
him as an easy-going, inoffensive
man who was destined to go far in
politics. They scoffed at the idea that
Hill was murdered because of his
political beliefs, and said Hill
“hadn’t an enemy in the world.”
Driving to his office, Brawley spat
disgustedly. “How is it that every
murdered man we investigate never
has an enemy?” 4

Taylor grinned. “Don’t let it get

you, Sheriff. What makes it so tough
is that Hill’s life. was patterned after

the lives of millions of other men _.

all over the country. He went to
work every morning, came home at
the club, and then went through the
same routine the next day. If the
two young punks, as you call them,
didn’t commit the murder for their

_ Own personal gain, then it’s up to |
us to find the skeleton in Denver >

Hill’s closet that led to his death.”
“Do you believe there is such a

_ skeleton?”

“Frankly, no,” :
“But what else can we believe? It’s
incredible that two men. could pull
a kidnapping at a busy intersection
with thousands of people looking on.
But that’s what it amounts to if we
don’t find a motive for the murder.”

_ At Brawley’s office, they found

Je esse Akers waiting to be ques-
tioned. He proved to be a tall, phleg-

.. answer to questions, he said he ran _

SUA pas USERS ee NAIA: Brawley. showed him the TOU
_. (Continued from page 41). »“Denver Hill was murdered late

-. exclaimed. “You must be crazy!” -
Flush every barn, outbuilding and.

tered Brawley doggedly.
“about an alibi for this afternoon?
- Got.one?” | at ee ae:

- in my office: at that time, and I’ve
killed once today so they have noth-

~ he never once squawked.”

~ graph, then read aloud the report.

' weapon.” He turned to Spangler.

_, Sat next to the driver. He was fac--

night, either stayed home or went to |

Akers’ alibi, and he was released
with apologies. ee he os
WEANwans, on the outskirts of

replied Taylor. | dwelling .was ablaze with - light.

_ Juke-box music

‘ing this side of Alloy,” said

- hotel. On thesporch steps, Seal sud-
-denly halted

"matic man in his middle forties: In

a cleaning and dyeing establishment, -
Was married and was a member of é
the same club as Hill. = =

this afternoon, and we. found. this
- among his papers. Does it mean any- _
thing?” = 35. © sir. ER eae
. . Akers looked up, surprised. “You |
mean you think I killed him?” he :

“Maybe, and maybe: not,” mut- _
“How

“When was he killed?” rie 8 SS
_ “Between four and five o’clock.” ip
Akers nodded. “I got one. I was

got five employees to prove it. ~
Listen, Sheriff, Hill often loaned me
money, and when I couldn’t meet.
the payments when they were due,

A list of Akers’ employees was ~
compiled, and deputies were quickly .
‘dispatched to verify his alibi. In the
meantime, he was held pending their
return with the reports.
_ A deputy entered just then with
the startling news that while Ander-
son had failed to pick a suspect from
the photo files, Spangler had se- -
lected a local hoodlum’s picture.

Brawley examined the photo-

typed on the back. “Richard Lee
Collins, -22, 277 Gardner Street,
_ Charleston. Employed by the Libby-
Owens-Ford glass works at Ka-
nawha ‘City. Married and has a
daughter.. Served a year at Chilli-
cothe, Ohio, for car stealing, and
ten months in Kanawha County jail
in 1943 for assault with a deadly

“Are you sure this is one of the
men you saw tonight?” 9..." "" <3
Spangler nodded. “I’m positive. He -

ing me, so.I got a good look at him.”
_ The two witnesses were excused
and left. Taylor Swivelled to a
phone. Contacting his barracks, he
issued a pick-up order for Richard
Collins. When he hung up, Brawley
said hopefully, “This is the break —
we've been waiting for. Let’s hope
Spangler’s right.”

The deputies returned, verifying

* * * :

Alloy, Troopers Bill Seal and —
R. G. Coen braked before the Ka-
nawha View Hotel. The three-story
reached them _
through the open windows. ~~ ee
_ “This is the only unchecked build-

sliding from under the wheel. “Let’s
take a look around.” =. * “4
The two men strode towards the

and reached for a:
EST TRUE FACT DETECTIVE.

«
fed Ma ne i ata
IM ce S52, Ef

i rhs x San Dati eo
‘

small, fluttery object
way. He examined it briefly and
gave it to Coen. The latter ex-
claimed,
band!” et 3

Seal nodded grimly and hurried
up the steps. A wave of raucous
laughter and swing music assailed
them when they entered the dimly-
lit bar. The men and women who
lined the horseshoe bar paid them

scant attention. A careful scrutiny —
of the patrons, however, showed

their quarry was not among them. |

““Jf’s just a coincidence, Bill,”
whispered Coen. “They’re not here.”
-Seal nudged his partner and

stalked through a frosted glass door —

leading into a heavily carpeted
lobby. It was empty except for the
desk clerk. They were contemplat-
ing their next move when running

‘anon

eek aor teh

Prey. - os a >
ee ig Sees

on the stair-_

“A Corona-Corona cigar ..
: : _. /"ynbuttoning his hoister as he ran.

= tHe certainly is persistent, “isn't he?”
m. BEST TRUE FACT DETECTIVE Aga eae eS Sota ace

+

- footsteps on the porcn made them

Lenzi was looking through a clump
“of bushes,directly across the street,
~ “This one’s been fired recently,” he.

wheel. Seal started for. the door,

“Hustling outside, ‘they saw two
figures making for the darkened
fields. Seal called on them to stop

and fired a warning shot into the -

air.” *

_threw their arms in the air. The
“troopers approached warily, their

-" guns levelled for instant use. =~" |
\ “Okay, turn around and don’t try |
any tricks!” snapped Seal watch- —

fully.

The men faced about slowly. Both __

were young, in their early twenties,
and both were smoking cigars!

Seal grinned. “Okay, Ray, frisk

tem,” he ordered. ~ —

found two guns, a 38 and a 32. -
Coen sniffed the .38 and nodded.

said jubilantly. ¢ 23
a Bane ° ao epeuby ee sae eS |
if EN minutes later, the troop-

ers led their prisoners into Sheriff = s

_Brawley’s office in Charleston. 0.5 ATEN,
The fleeing figures" halted and
you.”

voll Securely handcuffed, “the two :
_. young. killers . glared defiantly —

“Armour and Company plant.

. “We're the ones who kidnapped that -
“guy. We didn’t even know his name.

‘word, just drove down where Dick

_cops. We knew we were plenty hot.

- smokes, too.

14th as the trialdate. if

- was tried first. By the afternoon of ©
ee May 15th, the case was given to the.
_() jury . who returned _ after fifteen

© i
“ee

Coen complied. His probing fingers aa

uy
ans Risiah ih

: “Collins!” exclaimed Brawley on ate aoe
citedly. “We've been _ waiting for. E

. {

around the room.’ The second youth
refused to talk, but papers on him _~
gave his name as Marvin Curtis >
Weber, twenty-one, of 601 Capitol ==
Street, Charleston. He was married
and employed as a loader at the ©

Weber was the first to crack.
“Yeah,” he nodded miserably.

Dick and I hung around Lee and
Truslow Streets for nearly three-
quarters of an hour, waiting for a
nice job to come along. We intended
to pull some hold-ups with it, and
we needed something fast for a get-
away car. This guy’s Packard seem-
ed just right. ac # cee Neies

“When he stopped for a red‘ light, <9 ~~
we took our chance. Dick slid into.
the front seat alongside the driver
and poked the gun into his ribs. I
got in in the back. He never said a

told him to. When we got to the
Edgewood Country Club grounds, I
stopped. Dick ordered the guy to
get out, and the two of them went
into the bushes. The next thing I
knew, Dick came running out say-
ing he had to plug him. I never even
heard the shots. -

“We had to ditch the car outside
of Alloy when it developed motor
trouble. We walked around for a
spell, keeping a sharp watch out for

We were standing at the Kanawha
View Hotel bar when Dick spotted
the troopers coming up the porch
steps. We lit out the back way, but
they got us.” s
“Those cigars you ‘were smoking
—where did you get them?” asked
Brawley. - ; ey aie
“Dick said they dropped out of.
the guy’s pocket when he fell,” re-
plied Weber. “He picked them. up
and gave me one. When he returned
to the car, he said, ‘The guy was the .
right kind to see that we had ig

x.

West Virginia law moved swiftly |
in retaliation for the wanton killing.
On Monday, April 22, 1948, the de-
fendants were indicted on charges ~
of first degree murder with Circuit —
Clerk Malcolmn H. Hix setting May

The trial opened on schedule be=
fore Judge. Cyrus W. Hall. Collins “2:

BH Ag 3


* ‘minutes’ deliberation with a guilty —

sverdict. oe i ia BS pinches
«The highlight in the trial came

r

it 9 Poe
rae

~. when Judge Hall ordered the prison-
- er to arise.

“Have you anything to

Say before I pronounce sentence

-. upon you?” he asked Collins.
~~ Collins nodded, and in a boastful

voice cried, “I want to be at the

Taylor (the prosecutor) come in!”

prisoner’s. remark. Judge
however, remained - unper-
sentenced Collins

The next. day,: Weber suddenly

. changed his plea to guilty and threw
- gates of Hell when you and Frank ~*~ hims
_ Judge Hall took

elf on the mercy of the court.
the youth’s plea

.., The packed courtroom was shock-
_* Hall,
~-turbed. He then
‘to die by hanging in the state peni-
_.tentiary § at. Moundsville on the
‘Morning of September 14th. ~~

set June 3rd as the 7
"On June 3rd, he sentenced Weber *
prisonment in the ‘State

aie

~ to life. im

: ‘Note:

penitentiary. rae ce:

te aa |

used in this story is not real
fictitious to protect
an innocent person. ~~

but

THE VELVET.
VOICED MAN
: a : ee WEPT AND — _ ae :
2 UKIMLEDI 5

-

(Continued from page 37)

--™Man who attacked Smith! At least,
“~ this proves that they both es-

caped through the hospital grounds.”

Rousing Mrs. Gothard from her
sleep, patrolmen escorted her to the
_police station, where she immediate-
ly identified her purse. But, after

viewing the young suspect, she shook .

her head. ;
“That’s not ‘the one. He was an
older man, for one thing, and I be-

~~~ lieve ’'d know him in a million. The

-- acters about-on the previous night.
5 See ee ee ENE

one thing I could never forget is his
voice—the way he said, ‘I’m sorry
I had to be so rough,’ after he had
hit me.”
Hedman started with surprise.
“He said that? Did you notice what
he hit you- with?” 5
The. woman shook her head. “It
looked like a sawed-off cue stick or
a pipe.”
“That clinches it!” Hedman told
the others a moment later. “We’ve
got a one-man crime wave on our
hands, and whoever he is, he’s got
some reason for making his escape

.. through the hospital grounds. Either ms

he lives there, or he has a hideout
somewhere in that: vicinity.”
Despite the woman’s failure to

_ identify him, the youth from Wash-

ington was held, pending a full in-
vestigation of his story.
. * * *

S dawn broke, a squad of officers
A under | McGinnes’

spread out from the murder scene in
search of the murder weapon. An-
other squad, led by Captain Hed-

_ Man, visited the McIntyre Building -
_ and began a check of inhabitants of

the building and persons known to
have frequented Smith’s newsstand,

particularly on the previous evening. ‘

‘Most of the building employees
were away on Sunday, but Hedman,
with the aid of the building superin-

_ tendent and elevator operators on
duty, investigated most of the occu- |

pants of the McIntyre Building
without any tangible results. Neither
the superintendent nor the opera-
tors had seen any suspicious char-

_the attack without
Murder weapon or
_box in which he-had been carrying
_ his receipts for the day. ce

direction |

aus Sergeant McGinnes, likewise, had |

little luck. He and his men virtually
scoured the entire neighborhood of
uncovering the

Smith’s lunch

The detectives returned to head-

- Quarters to compare notes. While

attack upon a
shocked the city. The Sunday papers
screamed the facts of the attack and
subsequent murder, and bold-face

~ editorials. demanded that the killer
‘be brought to justice. 5 i

Captain Hedman and his detec-
tives were striving toward that end

_ with dogged persistence. Notwith-
“standing their certainty that the

seventy-three-year-old newsstand
owner had no enemies, detective
teams were busy probing into his
personal and business life, search-
ing for any thread of a clue. .
Other sleuths sat in Hedman’s
office, poring over dossiers of known
criminals into whose patterns of
outlawry this murder might con-
ceivably fall. a
Hedman, himself, spent tireless

. hours at the telephone, calling po-

lice in the surrounding cities, in-

. forming them of the details, and re-
questing their help in running down
, the man responsible for the crime.

A day’s digging into Smith’s back-
ground convinced Captain Hedman
that no personal feud had ‘motivated

the crime.
" “So, we’ll proceed on the theory

that Smith was the victim of a
bandit,” the detective chief told his
men. “Maybe a stranger in Salt Lake
City, since he chose a victim who

ordinarily carried little money.”

Early Monday morning, Sergeant
McGinnes, Eggleston, Wire and
Hunsaker were back at the McIn-
tyre Building. The place was a bee-

‘hive of activity, and the detectives

spent the best part of. the day talk-
ing with friends, business acquaint-
ances and co-workers of the slain
man. Two men had seen a stranger

_ at Smith’s stand about seven-thirty

p.m., on Saturday, but neither could

give more than a vague description _

of him as an “ordinary looking fel-
low, not badly dressed.” —- :

. told him:
man Smith’s age

.ern, and I got tanked

the detective probed. _ Oia
“About nine o’clock, or a little be- F

“ Te detectives took Hopkins with

guys?”

However, one of the porters told |

John Smith on

about?”

night?” the sergeant asked. |:

but

the question, the determined

his mind. “I work here till ‘five
o’clock every day except Sunday,”
he said. “Saturday is my night out,
so I went down the street to a tav-
up. Then I
went home—had something to eat,

-. and I went to bed.”

“What time did you

The name, J esse Akers,

me

the identity of =

ae
i

- the man was, and the porter men-“4
< tioned his name. “‘You’ im

was to question =
Ted Hopkins, the maintenance man. =
_They found the suspect down in the #
basement. His manner was sullen @
_ and evasive. se teat ae
We know

faces circling him made him change @

you quarreled with i q
Friday,” McGinnes a

+ Ay

ae

i glared at the group -
“around him. He was about to ignore

4
<a

ae)
¥*

—

fore. You can ask my wife.” eee

te

* = *

eos
“Sy

tie

them and visited his home. Mrs. :

Hopkins corroborated his statement
that he had reached home before -

nine o’clock on the evening of the -

attack. But McGinnes and his men ©

decided to search the house. Hopkins ~

watched them uneasily, and he
seemed relieved when they found
no evidence. pa OT aS

“If you’re shaking me down just

because I quarreled with Smith, why 4

get home?” ~

don’t you round up the rest of the” ee

the officers finished their search.

“What other guys?” McGinnes |

‘asked quietly. Tae Seed
“I wasn’t the only one that had

an argument with John Smith. And @
-_ John Markham hasn’t been
_ today—or Saturday either.”

to wor.

“Okay, Hopkins,” McGinnes ‘sai

“Maybe that’s a good steer. —
_. dont try to leave town! We.

%

the sleuths that the maintenance

-man about the building, had had an
_argument with Smith on the previ-
-ous Friday. McGinnes asked who =

he blurted unexpectedly, as 2


eS ee ee eee eee

lt

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5033

g

COX, Ebenézer, white, hanged at Charlestown, We Va., on August 27, 1830,

"The Frederick (Maryland) CITIZEN gives the following, additional particulars, relative
to the assassination of Col, Thomas’B. Dunn, Superintendent of the Armory at Harper's
Ferry, by one Ebenezer Coxs "It, appears Cox for his worthlessness had been discharged
from employment ‘by Col, Dunn, who persisted in his refusal to give him employment
again, in consequence of which Cox made bitter threats of vengeance, which howeves
were disregarded. Previous to the time of the fatal occurrence, Cox was seen going
into Col, Dunn's office, and soon after the report of a musket was heard, Those. who
repaired to the office to enquire into the cause, found Col, Dunn sitting in his
chair Tifeless and the gun leaning against the wall, Suspicion immediately fixed
upon Cox, and after a short search he was found concealed in the water wheel of the
works. On being taken into custody he acknowledged he had murdered Col, Dunn, and
expressed a regret that he had not an opportunity to wreak his vengeance on others
who had incurred his-enmity; his conduct.was that.of a demon, uttering the most hor-
rid imprecations, and evincing a total destitution of compunction or remorse. He

was carried to Charlestown and committed to prison to await his trial, Thus has
fallen in the very prime of life by the hand of an assassin, Thos. BR Dunn, a man

of sterling merit, and an officer whose devotion to his duty was always exemplary
and praiseworthy. He has left d# a mother and sister who were wholly dependent upon

him for support."
COURIER, Charleston, S. Ce, S&HMAH¥ February 11, 1830 (2:h.)

#Ebenezer Cox who murdered Col, Dunn at Harper's Ferry, Va., (now W. Va.), sentenved
to hang."' RECORDER, Hillsboro, NC, August 11, 1830,

"HORRID AFFAIR-On the 29th ult. (Jan. 29, 1830), Col, THOMAS B. DUNN, Superintendent
of the Armory at Harper's Ferry, was shot dead in his office, by EBENEZER COX, a
workman of a desperate character, whom Col, D. had discharged for improper conduct,
The assassin is in jail," COURIER, Charleston, SC, Feb. 9, 1830 (2:3.)

"A letter from Washington, dited 16th March, states that Cox, who shot Col, Dunn,
superintendent of the armory at Harper's Ferry, has recently made a confession, in
which he has implicated seven other persons in that shocking crime, Me says they
drew lots to see who should commit the murder, and they told him that if Bell on
him, Fourkof the accused persons have been arrested, and are in prison. = The
names of all the seven individuals are mentioned,

"Since the above was put in type, we have seen that Cox had been admitted as
Staté's evidence against the seven other persons whom he accused as his
accomplices; that four of these persons had been committed; and that the three
others, on hearing of the accusation, voluntarily surrendered themselves to undergo
an examination.

"On the 17th (says the Editors of the VIR}INIA FREE PRESS) Charles H, Mills, one of
the first mentioned four, and the one most deeply implicated by Cox's disclosures,
was brought before the Examining Court; and we have never witnessed a trial which
excited more intense interest. Cox, the mrderr, was first examined as a witness
on the part of the Commonwkalth, and gave his testimony without the least apparent
embarrassment. He is, by the way, the most incomprehensible being we have ever
seen. (We defy the disciples of LAVATER to make any thing of him, whatever the
cranioligists may be able to doe) He is apparently a youhh, of 18 or 19, though

he is said to be 23 years of ages He is small and neat in his person, & there is
nothing in his countenance betraying the hundredth part of that depravity which his
own evidence disclosed, Yet we have never seen a human being possessed of such
nerves. Nothing could embarrass him = no horrors daunt him. - When every auditor
shuddered at the recital of his criminality, he alone remained unmoved, During the
investigation, the fatal musket with which he perpetrated the murder was brought

in and laid before him, He examined the flint, and declared it to be the same
which he used when he shot Mr, Dunn. He spoke of all this with as much apparent
indifference, as if relating an occurrence in which he was not interested, Althoug
every eye was upon him, he was entirely self-possessed, and made no display of

feeling whatever. It is supposed 50 witnesses were examined, and the most

unlimited range of examination in regard to Mills's habits and general conduct,

w@s permitted by hig counsel, All agreed, ho ever, in representing him as a man

of ##K excellent character and upright deportment. Not a solitary circumstance was
proved to corroborate the testimony of Cox; but, on the contrary, evidence was pro=
duced calculated to throw a strong suspicion upon his veracity. So entirely
satisfactory was the investigation, that the Attorney for the Commonwealth, in-
formed the court, that he conceived it his duty to say, the evidence was entirely.
insufficient to justify the court in remanding the prisoner to jail for further
trial, The court were unanimous in the decision that he be acquitted. The other
persons accused were also discharged without the form of going again through an >
examination of their testimony." |

REGISTER AND NORTH CAROLINA GAZETTE, Raleigh, NC, April 1, 1830 (3:2.)

"MURIER! = Mr. Dunn who was a few months ago appointed Superintendant of the Armory
of the U, States at 4arper's Ferry, in Virginia, was murdered a few days since by |
a drunken workman, whom he had discharged from eployment," |
REGISTER AND NORTH CAROLINA GAZETTE, Raleigh, NC, 2-11-1830 KXxBsX (1:).)


x ge
ve

serena rey

116 W. Va.

events which gave rise to this case, she saw
the defendant frequently at the home of his
sister, Mrs. Aide, on Washington Street, in
the City of Charleston. The witness said:
“He (defendant) was very very nervous, very
upset. Very upset over his trouble with, his
wife.” he fact that there had been trouble
between the defendant and his wife is accen-
tuated by his above quoted statement to her
when in the act of killing her: “You want a
divorce? Here’s your divorce.”

On direct examination by the state of Dr.
A. A. Wilson, a neurologist, it was stated to
the witness that Dr. Jaisohn, a witness called
by the defendant, had testified that at the
time he examined the defendant in November,
1932, he was not suffering from paresis. In
the same question, on the said basis of fact,
expression of opinion was elicited of the
witness. This is asserted to be prejudicial
error because, it is said, Dr. Jaisohn had not
testified as stated in the preamble of the ques-
tion propounded to Dr. Wilson. On direct ex-
amination, Dr. Jaisohn testified that in his
opinion portions of the defendant’s brain were
diseased. On cross-examination, he was ask-
ed if at the time he examined the defendant
he had paresis. He answered: “No. The
beginning stage.” Though Dr. Jaisohn had
testified in chief that in his opinion the de-
fendant showed a luetic curve inclining to
paresis and that in his opinion the defendant
was starting into paresis, we think the state
did not misquote him in the said statement
made in the above quoted question to Dr.
Wilson.

George Dudley, a deputy sheriff of Kana-
wha County, introduced by the state, testi-
fied that as such officer he had on several
occasions taken the defendant from the jail
to the court room and return, and that in his
opinion the defendant was sane. Permitting
the deputy thus to testify is assigned as error
prejudicial to the defendant because it ap-
pears on cross-examination of the deputy
that on a previous night, in the progress: of
the Corey trial, the witness had been an offi-
cer in charge of the jury, and that on occa-
sions he had escorted the jury to and from its
quarters. While, under the circumstances,
the introduction of the deputy as a witness is
not to be commended, there is nothing in the
record to indicate that there was any preju-
dice to the defendant by reason thereof. In
State vy. Shores, 31 W. Va. 491, 7 8S. E. 413,
13 Am. St. Rep. 875, this Court held that the
fact that the sheriff had the trial jury in cus-
tody did not disqualify him from being a wit-
ness in the case on trial. Though it appears
from the opinion in that case that no excep-
tion was taken to his testifying at the time,
that fact does not distinguish the case on
principle from the case at bar where excep-
tions were taken at the time of the examina-
tion of the deputy sheriff. The controlling
element is prejudice, and if none is shown it

171 SOUTH EASTERN REPORTER

will not be presumed. Rather the contrary,
for the deputy must be presumed to have tes-
tified truthfully according to his knowledge
and belief, and to have discharged faithfully
the duties of his office when he had the jury
in charge.

Certain remarks of the prosecuting attorney
in oral argument to the jury are assigned as
error. From the bill of exceptions embody-
ing the challenged remarks, we quote: “Mer-
cy, in my opinion, is not justified in this case.
Would it not be better, gentlemen of the jury,
that society be rid of people with murderous
intent, as this man had? Would anything
be gained by putiing him behind the cold
and dark walls of a prison for thirty or for-
ty years? Would it, do you think, be an ex-
ample to other people who might be thinking
of murdering some of those toward whom
they have ill feeling to know the juries in
Kanawha County are opposed to such ac-
tions to the extent that an eye should be giv-
en for an eye when those similarly inclined
find out that the supreme punishment is go-
ing to be held out, as it is done so frequently
in England? Then, in my judgment, such
cold-blooded, wilful and deliberate murders
as this might cease.”

Expressions of opinion by counsel on ques-
tions of fact involved in cases on trial are
not proper. But we are not familiar with
any principle which would require the set-
ting aside of a conviction of high crime be-
cause at the trial, in the heat of argument,
counsel for the state injected two or three
expressions of opinion. It is only where re-
marks of counsel are unwarranted and preju-
dicial that a conviction will be set aside on
account thereof. State v. Scurlock, 99 W. Va.
629, 130 S. E. 263; State v. Wolfe, 99 W.
Va. 694, 129 S. E. 748.

A defense witness, Mrs. Hallie Jones, tes-
tified on direct examination that the last three
days before the shooting she thought the de-
fendant’s condition was worse than it had
been previously, and that “he just acted like
his mind was just clear gone.” The trial
court struck this out on objection and motion
of the state, This is assigned as prejudicial
error. While this answer might very prop-
erly bave remained in the record for consid-
eration by the jury, we do not think that its
elimination prejudiced the defendant because
this witness testified at length about the mat-
ters and circumstances within her knowledge
pertaining to the defendant's mental condi-
tion. The jury was as well qualified to form
an opinion therefrom as was the witness. She
was, however, permitted by the court to ex-
press her opinion that the defendant did not
know right from wrong.

Kleven instructions offered by the defend-
ant were given by the court to the jury. Nos.
1, 2, 4, 6 and § were refused This. is as-

signed as error. No. 1 would have told the

STATE v. COREY W. Va. 117

171 S.E.

jury to find the defendant not guilty. No. 2
would have told them that under the evi-
dence they could not find the defendant guilty
of murder in the first degree. Both were
properly refused. Nos. 4 and 8 refer to in-
toxication; and No. 6 to insanity. These
were properly refused because covered in sub-
stance by other instructions which were given.
live instructions offered by the state were
given to the jury. Nos. 2, 3, 4 and 5 are chal-
lenged.
No. 2 reads:

“The Court instructs the jury that any
wilful, deliberate and premeditated killing is
murder of the first degree; that one who does
an act wilfully, does it on purpose; and he
who does it on purpose, does it wilfully.

; “You are further instructed that if you be-
lieve from the evidence in this case, beyond a
reasonable doubt, that the defendant Joe Cor-
ey, wilfully, deliberately and premeditatedly
shot and killed Mrs. Katherine Ghiz, you
should find him guilty of murder in the first
degree.”

The generalization in the first part of the
instruction is of secondary importance. The
vital part of the instruction is in the second
portion where the act charged against the
defendant in the indictment is dealt with spe-
cifically. The words there used, “wilfully
deliberately and premeditatedly” negative the
idea of mental incapacity on the part of the
defendant at the time of the alleged offense
If the generalization in the first part of the
instruction is not technically correct as con-
tended by the defendant, the incorrectness
becomes of minor consequence in the light of
the very specific terminology of the second
part of the instruction.

We can find no fault with state’s instruc-
tions Nos. 3 and 4, They are as follows:

: No. 3. “The court instructs the jury that

f you believe from the evidence in this case
beyond a reasonable doubt, that Joe Corey
wilfully, maliciously, deliberately and pre-
meditatedly killed the deceased, Mrs. Kath-
as Ghiz, you should find him guilty of mur-
: wa in the first degree, although he may have
een drinking intoxicating liquors before and
# the time of the killing, unless you further
relieve from the evidence that at the time of
ee he was 80 insane or so grossly in-
hate that he did not know he was doing
s § nor did he know what the consequenc-
®s of his act might be.”

N corp :
witha The court instructs the jury that
that sh you may believe from the evidence

sity ach tine am, Katherine ie
tied ie ke Pe Hix t rine Ghiz, was
ata Mt understood the nature and
oid cn Sag a and its consequences, and
inh S santa ie t lat it was wrong and crim-
Senicbs mn vot her, if you believe beyond a rea-

Able doubt that he did shoot her and that

she died @s a result thereof and if he was eap-
able of knowing at the time that if he did
shoot her he would do wrong and receive pun-
ishment, then any such partial insanity that
he may have been laboring under at the time
is not sufficient to exempt him from respon-
sibility to the law for his crime of killing
her.” :

State’s instruction No. 5 follows:

“The court instructs the jury that a per-
son who has formed a wilful deliberate and
premeditated design to kill another, and in
pursuance of such design voluntarily makes
himself drunk for the purpose of nerving
himself for the accomplishment of the de-
Sign, and then meets the subject of his mal-
ice when he is so drunk as not then to be able
to deliberate on and premeditate the murder
and kills the person it is murder in the first
degree and if you believe from the evidence
in this case beyond a reasonable doubt that
the defendant, Joe Corey, prior to the killing
mentioned in the evidence wilfully, deliber-
ately and premeditatedly, decided to kill
Mrs, Catherine Ghiz or his wife and in pursu-
ance of such decision he did kill the said
Catherine Ghiz, it makes no difference
whether or not he was drunk at the time of
the killing, if you further believe from the
evidence that at such time he was not in-
sane,”

[2] In support of the challenge of this in-
struction, it is said that it embraces similar
defects to that which appeared in state’s in-
struction No. 2 in State v. Robinson, 20 W.
Va. 713, 730, 742, 43 Am. Rep. 799. That in-
struction was condemned because it did not
“connect the purpose to kill with the killing.”
The instruction at bar is different. It is
based on belief by the jury that the defend-
ant, “prior to the killing mentioned in the
evidence, wilfully, deliberately and premedi-
tatedly, decided to kill Mrs. Catherine Ghiz
or his wife, and in pursuance of such deci-
sion he did kill the said Mrs. Catherine Ghiz
* * *” Another challenge of the instruc-
tion is that it is based on an intent, in the al-
ternative, to kill Mrs. Ghiz or his wife. It is
insisted that the defendant could not proper-
ly be convicted of first degree murder for kill-
ing Mrs. Ghiz because of a premeditated de-
sign to kill Mrs. Corey. Perhaps so. But
he killed both of them. He was looking for
both. He desired to kill both. Otherwise,
why arm himself with two revolvers, and why
Say to Mrs. Ghiz when he shot her, “I will
kill you first’? There can be no other con-
clusion from the evidence than that he
planned to kill both of them. In the light of
these circumstances, it would require an ex-
treme refinement of reasoning to reach a ju-
dicial determination that the defendant was
prejudiced because the jury was told that it
could convict the defendant of first degree
murder of Mrs, Ghiz if they believed from

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ied isaraaet. bed ath af eee

"118 W.Va.

the evidence beyond all reasonable doubt that
he killed her in pursuance of premeditated
intention to kill her or Mrs. Corey. Granted
that, as a general rule, an expressed intent of
an aceused to kill a certain person is not per-
tinent on his trial for killing another, but it
may become pertinent and admissible under
circumstances showing connection between
the threat and subsequent conduct of accused,
und where both persons are killed at the
same time in pursuance of an evinced intent
to kill both, reference in an instruction to a
decision by the accused to kill one or the oth-
cr must be deemed tantamount to a reference
to a decision to kill both.

Again, it is urged that this instruction is
not correct in its reference to voluntary
drunkenness, because it is said that Corey be-
gan drinking on the day of the tragedy sev-
eral hours before the arrival of Mrs. Ghiz
and Mrs. Corey in Charleston and at a time
when there is no evidence tending to show
that he knew they were coming. ‘True, di-
rect evidence does not disclose such knowl-
edge on his part, but some of the circumstanc-
es clearly indicate that he at least suspected
or anticipated that they were coming to
Charleston. At about the middle of the after-
noon of that day he bought the revolver
which he used that evening to kill his wife.
rhe pawn broker of whom the purchase was
made testified that the defendant was sane
when he made the purchase. Tolice officer
Sturgeon testified that at police headquarters
that evening, the defendant said: “I got it
(revolver purchased that afternoon) to do
just what I done and if my wife dies I will
be happy.”

[3] It would be very unusual for a trial of
the duration of this one to be carried through
without error. Perfect trials are rare, if
they ever occur. Upholding convictions does
not depend upon the perfection of jury trials.
It is not the province of courts of review to
dissect records of trials for the purpose of
determining whether there was any departure
from technically correct procedure, An ap-
pellate court does not reverse for error in a
trial unless it is reasonably evident that a
party to the trial was prejudiced by reason
of such error. Upon review of a state case,
the appellate court’s problem is to determine
whether the conyicted person has probably
been prejudicially affected by error in the
trial. If there seems to have been no, preju-
dice, the conviction must stand. Where, in a
eriminal case, under the whole evidence, the
jury could not properly have returned any
other verdict than that which it did return
convicting the accused, errors not plainly
prejudicial will be deemed inconsequential.
State v. Rush, 108 W. Va. 254,150 S. EF. 740;
State y. Dephenbaugh, 106 W. Va. 289, 145 S.
I. 634. In our opinion, in the case at bar, a
verdict carrying a less penalty under our law

171 SOUTH EASTERN REPORTER

would not have met the ends of justice and
could not properly have been returned by the
jury.

A painstaking examination of the record
and consideration of the points of crror
raised by the able counsel for the defendant
convinces us that any errors that may have
crept into the trial were inconsequential,
that the defendant was regularly and fairly
tried, and that there is no judicial reason
why the judgment of the trial court should
be disturbed.

Therefore, we affirm the judgments of the
eirenit court and the trial court,

Affirmed,

DORSEY et al. v. BOARD OF EDUCATION
OF WAYNE COUNTY.
No. 7787.

Supreme Court of Appeals of West Virginia.
Oct. 3, 1933.

Schools and school districts C133.

Appointment of teachers for ensuing
school year prior to July 1st held not “prac-
ticable” within statute authorizing such ap-
pointment, where board “of education was
without funds therefor, and appointments
would interfere with impending reorganiza-
tion of school system (Code 1931, 18-7-1, 2,
11-8-13).

[d. Note.—lFor other definitions of
“Practicable,” see Words & Phrases.]

Syllabus by the Court.

Under Code 1931, 18-7-1, the appointment
of teachers for the ensuing school year by a
board of education prior to July 1st is valid,
‘Sf practicable.” Such advance appointments
are practicable only when the board has funds
available to fulfill its undertakings, and the
appointments will not interfere with an im-
pending reorganization of the school system.

Error to Circuit Court, Wayne County.

Mandamus proceeding by FE. R. Dorsey
and others against the Board of Education
of Wayne County, a corporation. To review
an adverse judgment, plaintiffs bring error.

Affirmed.

Lee, Blessing & Steed, of Charleston, for
plaintiffs in error.

J. Floyd Uarrison, of Wayne, and James
Damron, of Iluntington, for defendant in er-
ror.

ey be 1c ch
DORSEY vy. BOARD OF RUUR ATION OF WAYNE COUNTY wevVa. 119
nb ws ipl oe Judge. such appointment ean be made “if practi
This writ of error involyes the validity cable.” The phrase “if practicable’ must be
of the appointments of six school teachers given due consideration, and, when that is
for the school year of 1933-4 by a district done, it completely éircuimscrihés the right
board of education in Wayne county. The of appointment. The phrase was not con-
appointments were made, and contracts pur- Sidered in the Campe decision, because there
suant thereto (definite as to terms and sal- Was no question then of the practicability
artes) were executed, during the first weck Of appointments. As heretofore shown the
in January, 1933. The county board of ed- board was potentially able then to fulfill
ucation (successor of the district board un- its contracts with teachers. That potential-
der the County Unit Bill which became ef- ity was suspended by the constitutional
fective on May 22, 1933) refused to recog- amendment. Consequently, we must dite
nize the appointments. The circuit court, consider whether it was practicable under
on mandamus, refused to require such ree- the statute for the board without that po-
vxnition, holding that the Constitutional tentiality to make the instant appointments
Amendment of 1932, limiting levies for taxa-
tion, indirectly annulled the rights of boards
of education to enter into such contracts.
Counsel for the teachers contend that the
contracts are valid under Code 1931, 18-7-1,
which provides as follows: “The board of
education shall, on or before the first Mon-
day in July in each year, if practicable, ap-
point the principals and teachers for all the
schools in the district and fix their salaries
as provided by section two of this article.”
Section 2 (Code 1981, 18-7-2) fixes the basie
and the advanced salaries for teachers in

’

Four factors control the sum availible for
the support of free s¢hools in 1923-2. un-
der the changes wrought by the constitu-
tional amendment, namely: (1) The consti-
tutional limitation on levies: (2) the legis-
lative apportionment of the levies to eduea-
tion (made on March 11, 1933); 8): the to-
tal valuation of all property listed for taxa-
tion (completed about July 81, 1933): (4)
and whatever aid the state shall contribute,
The first of these factors the board knew
in January, 193% (when the appointments

>For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

the several grades, ete., and requires the sal-

aries to be uniform. July Ist is the begin-
ning of the fiscal year for the several levy-
ing bodies. Section 1 (above) makes an ex-
ception in favor of boards of education to
the statute (Code 1931, 11-8-13), which for-
hids a_ fiscal body to make a contract in-
volving the expenditure of money in excess
of funds legally at its disposal,

The validity of such appointments made
prior to July under section 1 was upheld in
Campe y. Board of Education, 94 W. Va.
408, 118 S. E. 877 (decided in 1923), the court
Specifying that the contracts were not void
(a) because made in anticipation of the cur-
Tent school levy or (b) because of uncertain-
ty when made of the sum of money later
to be at the disposal of the board. At the
time of the Campe decision, and until the
1932 constitutional amendment intervened,
there was no practical uncertainty as to the
money to be at the disposal of the board,
because there was no effective limitation,
constitutional or legislative, on the levy for
the teachers’ fund. See Constitution, arti-
cle 10, § 7, and Code 1931, 11-S-5 (third para-
graph subsection b). After appointing teach-
ers, a board of education then could lay
2 levy sufficient to produce their salaries,
As the right to levy must now be exercised
within the discretionary legislative appor-
Uionment of the limited levies to education
{as contemplated by the amendment), we are
of opinion that the Caipe Case does not ap-
ply to the present. situation.

It will be observed that section 1, supra,
does not confer on the board the absolute
right of appointment prior to July, but that

were made), but it could not divine the oth-
er three at that time. Without such fore-
knowledge, it could not possibly know that
it could pay to all other teachers in the re-
spective classes ofthe petitioners herein the
same salaries which it then contracted to
pay to them and so maintain the uniformity
required by law. The uncertainty of the
board at that time as to the money to be-
come available could no longer be made eer-
tain by the voluntary action of the board
itself, as could have been done prior to the
amendment. A promise is practicable when
made only if the promisor is actually or po-
tentially able then to fulfill lawfully his un-
dertaking. It must be apparent ‘that the
undertaking ean be accomplished by ayail-
able means. Wilcox y. Royal Arcanum, 66
Misc. 253, 123 N. Y. 8. 83. The board of
education had not the lawful power actual
or potential to fulfill the contracts it made
in January, 1938: therefore they are im-
practicable under the statute, and invalid.

Our observations so far have been based
specifically on the monetary uncertainty
which confronted the board in January.
1933. There were some general conditions
then arising from the amendment which are
equally pertinent on the question of whether
such appointments were practicable. Rad-
ical retrenchment in both salaries and the
number of teachers was imminent in  or-
der to bring school expenses within the lim-
ited levies. We take judicial knowledge that
in the winter of 1933 there was great pop-
ular agitation over changes impending the
school system. There was no certainty in
the outcome of that agitation. Until definite
legislative action was taken thereon, a board