Alabama, D, 1832-1989, Undated

)

(Agresti inventory,

CAPITAL PUNISHMENT DATA SHEET

OFFENDER: cee Ane oe ak
NAME: EARLE DENNISON

RACE: White

SEX: Female

OFFENSE; Murder

DATE EXECUTED: Sept. 4, 1953
COUNTY:

VICTIM: _

NAME $25 cp ec Lt
RACE: White
SEX: Female
AGE: :

RELATIONSHIP
TO OFFENDER:

BACKGROUND
INFORMATION:

Neice

“DATE ‘CRIME

COMMITTED: -

DATE OF
SENTENCING:

DAY OF THE

WEEK EXECUTED:
Cal Ss Oe Be Fs és}
OFFENDER

Friday

RESIDENCY:

MEDIA ACCOUNT
OF CRIME:

: Elmore (Montgomery, Ala) —
AGE: 55

VIGOR ATOIM
JATHT
136
INVENTORY #
SOURCE OF DOCUMENTATION
(TITLE, DATE AND PAGE#): ©
N.Y. Times
9/4/53 9:1 Snes
9/1/53 11:4 us

a

Poisened neice to collect insurance

' WO eYAate

WOETUSAE


ALABAMA’

-BORGIA

The killer assists at the autopsy
of her own victim

BY CHARLES MOOREHEAD .

HE CRIME was as commercially profitable as it was

morally hideous. An investment of ten cents would

produte a return of some $6,000. Not even an oil well
can do better than that.

And the plan, itself, seemed as safe as a government
bond. It had been tried, tested and found foolproof two
years before. :

The murky brain which concocted the black plot was
housed in the graying head of Mrs. Earle Dennison. She

was a 54-year-old widow and one of the senior nurses at the.

Wetumpka Hospital, situated in Alabama’s Elmore County.
She was considered a competent woman and a kindly one.
When her 2-year-old niece, Polly Ann Weldon, had sud-
denly been taken ill in 1950, Mrs. Dennison had remained
by the ‘sickbed day and night. When the child had died
she had refused to take a penny for her services. No one
remarked the fact that she collected on a $5,000 insuranc
-policy after the child was buried. :

Now, on this May Ist, 1952, Earle Dennison decided to
visit her sister-in-law, Mrs. Cora Belle Weldon, mother of
Polly Ann. Two other children remained in the family,
Shirley Diann, who was 2, and her brother, Orvil, 9.

It was a bright, clear day. The sky was blue. The sun
was brilliant. Spring swept greenly across the Alabama
meadows. It was incredible that murder stalked there, too.

Mrs. Earle Dennison arrived at the Weldon home in the
rural Claud community near Wetum ka shortly before one
o'clock. Gaston Weldon was.eating his lunch in company
of his wife and two children. Shirley Diann; who was
extremely fond of her aunt Earle, jumped up from the
table and ran to her as she entered.

* Earle Dennison picked the child up. She kissed her affec-
tionately. She said, “I’m sorry but this time I didn’t bring
anything for my lovely little niece.”

That wasn’t precisely true. Earle Dennison had brought
something for her niece. It wasn’t an expensive gift. It
had cost only a dime. But it was a lethal present which
Earle Dennison considered worth $6,000, Its name was
sodium arsenic.

Cora Weldon was frightened by the illness that
seized Shirley Diann; her husband, Gaston, said,
"That child is going to a hospital immediately!"

Immediately after lunch, Gaston Weldon and young Orvil
left the house. Shortly before two o’clock, Earle Dennison
‘made a suggestion. : ;

“Since I forgot to bring a present,” she said, “suppose we
all go down to the store and I’ll buy some candy and soda
pop.”

Naturally, Shirley Diann considered this an excellent
idea. As it was a warm day, Mrs. Weldon also agreed. Be-
fore starting out for the store, Earle Dennison stopped for
a moment at her car, picked up a small bottle around which
she had wrapped two sheets of-face tissue. This she
dropped in the pocket of her dress. a ie ee

They picked up several bottles of orange drink and
some candy. When they returned to-the house, young
Orvil. had also come back. Mrs. Dennison opened the
bottles and poured the drinks. She took care with Shir-
ley Diann’s, pouring it in the child’s favorite plastic cup.
This seemed. natural enough; everyone knew that Aunt
Earle was extremely fond of her little niece.

Shirley Diann, whose stomach heretofore had been con-
sidered to have a cast-iron digestive system, became im-
mediately ill. She ran to Mrs. Dennison; tears in her eyes,
hands pressed against her stomach. ‘

“Auntie Earle,” she cried. “Sick. Sick!”

Mrs. Dennison lifted the girl to her lap, spoke to her ©

soothingly. The girl gagged and gasped horribly.
Cora Belle Weldon became worried. “Earle,” she said,
“that child’s really ill, Let’s take her to the’ doctor’s

is

Se


inne
cept ae

Sore :

The suspect (center) sits through the trial
that she made two suicidal attempts to avoid

Sheriff Lester Holley of Elmore County was
stunned by facts he got from insurance men

right away. I’ve never seen her get this way before.” |

‘Don’t be silly,” advised Mrs. Dennison: “It’s. just an
upset stomach. Children always get it. Besides, Dr.

. Sewell. won’t be back in his office at the hospital until

after five o’clock.”
Being a mother, Mrs. Weldon remained worried. But

her. sister-in-law’s counsel reassured her to some degree.
After all, Earle Dennison was a nurse of 20 years standing.
Certainly, she should know: something of children’s ail-
ments. :

But as the afternoon passed, the child became sicker.
Once Mrs. ‘Dennison insisted that Shirley Diann take
another sip of the orange drink from her plastic cup. “It
may help settle her stomach,” she told the anxious mother.

But it did no such thing. The child’s gasping became

‘more frequent. She cried piteously and her face was
‘twisted in agony. Nevertheless, Earle Dennison still advised
Mrs. Weldon that a doctor was unnecessary.

“It’ll soon pass,” she said. “I’m a nurse and I ought to
know. Besides, I told you that the doctor won’t be in until
after five o’clock.”

At 4:30, Earle Dennison announced that she must go
back to Wetumpka on some business of her own.

“But don’t worry,” she said, “little Shirley Diann will
be quite all right. I wouldn’t leave you alone with her
if I-could help it, but I have some very important business
in town.” .

That she did. .She climbed into her car and set out for
the home of Cecil Bailey in nearby Deatsville. Bailey
was an insurance agent and this was the first of May.
These two facts -were not entirely unconnected. For Mrs.
Dennison had purchased ‘a policy from Cecil. Bailey—
a $500 policy on the life of her young niece. And May Ist
was the last day of grace for her: to make: an overdue
premium payment.

The woman made the necessary payment.
returned to her home and ate a hearty supper.

In the meantime, Gaston Weldon had returned from
work. When he saw the condition of his daughter he werit

Then she

into action. “That child’s going to a hospital immediately,”
he said. “I don’t care what advice Earle gave you. And if Dr.

' Sewell’s not at the hospital we’ll take her to Dr. Little.”

Shirley Diann was warmly wrapped up, carried to the
family car and driven to the office of Dr. Forrest Little in
Wetumpka. It was then a few minutes before five o’clock.

Dr. Little’s examination was swift; his advice emphatic.
“Get this child over to the Wetumpka Hospital at once,”
he said. “She’s gravely ill. I’ll telephone Dr. Gresham
over there while you’re on the way.” .

When Shirley Diann was put in the hands of Dr. C.
Gresham, she was almost unconscious. Realizing the criti-
cal condition of the tot, Gresham said angrily, “Why didn’t
you bring her in sooner?” ;

He ordered Shirley Didnn to bed. Her anxious parents
sat in the hospital waiting room. A few minutes later,
nurse Earle Dennison rushed into the ward. She recog-
nized her niece in the bed. She approached Gresham.

“Doctor,” she said, “that’s my favorite niece. I’ll nurse

her. Is she very ill?”

Wl Ria, a ee

SUPE FE tom rhemnerrer

‘


Alabama's
Borgia

(Continued from page 43)

‘

and little Shirley Diann was my favorite
niece,”

The coroner not only authorized the
autopsy at Dr. Gresham’s request but after
hearing that the physician suspected ‘ar-

senic poisoning he promptly impounded -

the plastic cup from which the child had
drunk, the soda bottles and the clothing
on which she had vomited.

Nurse Dennison’s offer of assistance at
the post mortem was accepted. She stood
by silently as the doctors worked. The

‘result proved Dr. Gresham right. Shirley

Diann had, beyond all doubt, died. of ar-
senical poisoning. ;

Dr. Rehling then examined the articles
taken from the Weldon home. He found

‘that stains on the child’s dress contained

heavy traces of arsenic; so did the plastic
cup.

Earle Dennison was not immediately
aware of these facts. The medical men
kept them secret from everyone save Sher-
iff Lester Holley. It is reasonable to’ be-
lieve that she was at home, safeguarding
the two insurance policies she had taken
out on the life of Shirley Diann. ‘

On the $500 policy which she had ob-
tained from Cecil Bailey, the payment had
been made in the nick of time. On a larger
policy, one for $5,000, issued by Eugene
Keener, payments had been made in ad-
vance up to, and including May Ist, 1951.
Since the child had died before midnight
of that last day the contract was in ef-
fect. . ; .

Sheriff Holley, meanwhile, was making
a swift but thorough investigation. It was
soon completed and he reported his find-
ings to Circuit Solicitor Winston Huddle-
ston.

“There is no arsenic in the Weldon
home,” said Holley. “I searched it com-
pletely.. They never use the poison for
anything. Moreover, Dr. Rehling found no
arsenic in the soda bottles, only in the
child’s drinking cup. That argues but one
thing. If there was-no poison in the bottle,
someone put the arsenic in the cup.”

“That’s logical,” said Huddleston, “but
incredible. “No one was present but the
child’s ‘mother and her aunt. You’re not
accusing either of them of murder, are
you?”

“Not yet,” said the sheriff. “IT admit it
sounds utterly impossible. If either of
them murdered that child, it’s the most
cold-blooded crime ever committed in El-
more County.” x

The sheriff departed the solicitor’s office.
He had two items which he wished to in-
vestigate. First, any recent arsenic pur-
chase; second, any insurance that might be
held on the life of Shirley Diann.

He made an immediate and'startling dis-
covery. Early on the morning of May 1st
ten cents worth of sodium arsenate had
been. purchased from a drugstore in
Wetumpka. The name of the customer was
Earle Dennison.

Holley’s next move was a canvass of the
town’s insurance agents. When he re-
ported for the second time to Solicitor
Huddleston, he had startling news,

“Earle Dennison bought poison,” he an-
nounced succinctly, “In addition, she had
two insurance policies on that child total-
ing about $5,500.” :

Huddleston said, “It’s almost impossible
to believe. ‘Mrs. Dennison is a nurse of
high standing. The idea that she’d kill her
own niece—a two-year-old child—is in-
credible.”

“T’ll tell you something more incredible,”
said Holley. “I think she’s done it before.”

He went on to explain that during the
course of his conferences with the insur-
ance men he had learned that Mrs, Den-
nison had, two years before, held a $5,000
policy on Polly Ann Weldon, Shirley

Diann’s sister. This had been’ collected
when the infant had died in 1950. At the
time the Weldons had lived in Deatsville,
in a home presently occupied by Preston
and Lula Mae Dennison, in-laws of the
Weldons.

“Did you check the death certificate?”
asked Huddleston.

“I did. It stated that the child had died
of food poisoning. I still. think it might
have been arsenic. - It’s a natural enough
mistake. No -one expects a child to be
Poisoned.” ‘

“We'll get an exhumation order,” said
the solicitor. “We'll have Dr. Rehling ex-

amine the remains of Polly Ann.”

Quietly, the solicitor obtained the nec-

essary court order. Secretly, Dr. Rehling -

performed the autopsy. ,He found heavy
traces of arsenic in the body of the tot.

Sheriff Holley was no longer surprised,
“I’ve also learned,” he told Huddleston,
“that Mrs. Dennison’s husband, who died
last October, did so under mysterious cir-
cumstances. Apparently, she held a few
policies on him, too, and cashed them by
use of arseriic.” ;

“Well, shall I get an exhumation order
for him?” ‘

“It mightn’t be necessary,” said the sher-
iff. “I think we can gain a conviction on
at least one of the murders we now have
evidence of.”

On May 8th, Sheriff Holley arrested
Earle Dennison, charging her with the
wanton murder of her two nieces. She was
stony-faced and indifferent. She was bound
over to the grand jury without bond by
Judge Edwin Sanford and taken to Tut-
wiler state prison, :

Elmore County was more stunned when
the news broke than Solicitor Huddleston
had been. It was unbelievable that a wom-

actually murder two helpless children.

On May 9th, Earle Dennison was re-
moved from the prison and returned to the
hospital in an ambulance. She had smug-
gled a dozen barbiturate pills into her cell,
had swallowed them all in a desperate sui-
cide attempt. ’

Though she was unconscious when she

TOO HASTY

Canadian counterfeiters got a bit
ahead of the times in their nefarious
work. In Hamilton, Ontario, $10 bills
have been turning up in the stores,
‘each carrying the portrait of Queen
Elizabeth II. This at once Proved them
counterfeit, since government currency
still carries. the portrait of the late
King George VI, '
—Al Lippe

reached the hospital, Dr, Little, who at-
tended her, announced that she was not
in a critical condition, that she certainly
would live. f

Two days later, restored to normal
health, she was returned: to jail. After a
week of brooding over her terrible deed,
she sent for Sheriff Holley, announced that
she would tell him the truth. She made her
confession to the sheriff in the presence
of Dr. Rehling.

She admitted buying the arsenic. How-
ever, she insisted that the idea of poison-
ing Shirley Diann “just popped into her
mind as she was opening the soda.” She
admitted further that she had hastily paid
up her lapsed policy immediately after
administering the poison. Then she added
a statement which was rather startling
coming from a professional nurse,

“I ‘watched the autopsy,” she said, “but
I never thought Dr. Rehling would find
much arsenic in the body. Shirley Diann
didn’t get very much. It didn’t cross my
mind that they could go in the body and
find if the child was poisoned with arsenic.
I wouldn’t have given her arsenic if I
thought they could find it.”

However, in spite of the fact that Earle
Dennison ‘freely admitted she had. killed
“her favorite niece,” she. flatly. denied that
she had murdered Polly Ann.

Once, she said, she had put a salt shaker
containing poison on a table where Polly
Ann and her brother, Orvil, were eating.
But neither child had used the shaker,
She also conceded that she had given

. Polly Ann some ice cream on the day of

the child’s death, but she swore that it
had not been poisoned,

Sheriff Holley was by no means im-
pressed by this last point. A murderer
can be executed but once and Holley was
Positive that his case against ‘the woman
for the slaying of Shirley Diann was solid.
She was indicted on two murder counts,
however. ;

The trial of Earle Dennison was sched-
uled for August 13th. At dawn that morn-
ing she was found in her prison cell, her
wrists slashed by a razor blade. Her blan-
kets were covered with blood. But the
blade had missed her vital arteries, had
cut her veins instead. :

She lost a pint and a half of blood. She
did not die.

At. the trial for the murder of Shirley
Diann, Solicitor Huddleston called the mur-
der, “The lowest, filthiest crime ever com-
mitted in Elmore County.”

Assistant Solicitor U. G. Jones told the
jury, “The Dennison case will be history
for a hundred years in Alabama. Shall
history say this perfidious nurse lived
happily ever afterwards?”

The jury decided this rhetorical question
in the negative. At 9:25 P.M. on August
16th, the jury found Earle Dennison guilty
of . first-degree murder. Circuit Judge
Oakley Melton sentenced her to the elec-
tric chair.

Judge Melton set the date of the execu-
tion as September 26th, 1952. However,
the sentence was automatically stayed, in
order that it be reviewed by Alabama’s
Supreme Court as required by law in all
capital cases. If the Supreme Court up-
holds Judge Melton’s sentence, Earle Den-
nison will possess the dubious distinction
of being the first white woman ever to be

‘executed in Alabama.
Mrs. Dennison cannot legally collect her °

cash on the two insurance policies, since she
was directly concerned with the death of
the insured person. ‘ Thus her ten, cent
investment—the dime she paid fof the
arsenic—is wasted. The returns on it’ were
not the 55,000 to one that she expected.
Instead, the returns may be one to two—
her life for the lives of Shirley Diann and
Polly. Ann Weldon. ‘

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Weldon home in Claud,
rural section outside of '
Wetumpka, where death i
and orange soda were

.brought to Shirley Diann, ot
2, by kindly visitor who

always brought presents . i
forthe Weldon youngsters Me

,

~

“Tf she survives the night,” Gresham said gravely, “I'll
be the most surprised doctor in this county.”

“What’s wrong with her?” » :

Gresham regarded the nurse calmly. “I’m not quite sure
yet. But if it’s what I strongly suspect it is, someone will
have to do a lot of explaining.”

“She had some soda pop this afternoon,” said Mrs. Denni-

| son. “It must have upset her stomach.” :
“Her stomach,” said the doctor grimly, “has been upset
by something far stronger than soda pop.”
. In spite of the desperate efforts of Dr. Gresham and the
4 hospital staff, Shirley Diann Weldon died at 8:30 that eve-
ning. Mrs. Dennison took it upon herself to shoulder the
burden and break the tragic news to the parents.
She told of the child’s death in a broken voice. She
took Cora Belle Weldon in her arms and the two women

2 sobbed together. Gaston Weldon grimly paced the floor.
When Dr. Gresham entered the room, Weldon said harshly,
“What was the matter with her? How cana child die from

had an upset stomach?”
Or. “She didn’t.”
| “Well, then, what killed her?” Weldon insisted.
the } “Pm not absolutely certain,” said the doctor. “But I’m
in | going to find out. : I’m going to ask Dr. Edwards, the El-
k more County coroner, for an autopsy.”

Weldon stared at the medical man. “An autopsy?” he
? repeated. “Why? What on earth do you expect to find?”

“J expect,” said the doctor quietly, “to find arsenic. I
think the child died of arsenical poisoning. I want to make

on sure.”
ti- Weldon seemed stunned. Mrs. Weldon was still weeping.
n’t Karle Dennison stared at Dr. Gresham, and there may have
been a faint shadow of fear in her eyes.
ts She suid, “If there’s an autopsy, doctor, who'll per- 4
er, form it?”
y= Under the circumstances, iV probably be Dr. Edwards “ .
5 ees ares ms pr Ny Preston and Lula Mae Dennison, relatives of
and Dr. C. J. Rehling, the state toxicologist. pee z n
ise “[P]] ask them to let me help,” said Mrs. Dennison. the victims, gaze at photo of Shirley Diann;
After all, ’m a registered nurse (Continued on page 90) their home was scene of the first poisoning
\
43



aan 4 SARs NR erate eg ett pes toe
ars My ie
A

Homicidal Nurse

(Continued from page 51)

after receiving that report. “I think
‘that child was deliberately poisoned,’
Holley said after a quick briefing on the

~~ ease. “And I’ll tell you why. There isn’t
_ any arsenic on the farm or in the house. -

Doc Rehling tells me there was no trace
of it in the soda bottles, but he found
arsenic in the baby’s plastic cup, the one

she drank the soda out of.

_/ “There’s no way the poison could have

+

Be

gotten into that cup accidentally. Some-
one had to put it there.”
Solicitor Huddleston could find no flaw

' -in the sheriff’s logic; “The question is,

who could have put the poison 'in the
cup? It looks like only the child’s aunt
handled that cup. You’re not accusing

» Earle Dennison of murder, are you?” the

prosecutor asked,

» - Sheriff Holley shook his head wearily.

“I know it sounds impossible,” he said,
“but I have to check it out. I'll let you
know how I make out.” .

The sheriff embarked on his inves-

“tigation with the quiet and discreet thor-

oughness that was typical of him. Earle

- Dennison, he learned unobtrusively, was

still torn by grief over the death of her
beloved niece. She had refused, however,
to avail herself of her superiors’ offer of
a week’s leave of absence, insisting that
hard work ‘would do more for her than
“a vacation, which would only give her
time to brood. :

_. “If.I can lose myself in my work,” she
said, “I can forget the tragedy. I’ve got
‘to keep busy.”

2 The sheriff's first move was to con-
duct a “routine” examination of poison
registries in local drug stores, which are

“required by law’ to record sales of all
poisons. Holley’s check was slow, of ne-
cessity, and pretty discouraging for sev-
eral days. He found records of numerous
arsenic purchases, but none of the buyers
could be connected, even remotely, with
the family of the dead little girl.

In due course, however, Sheriff Hol-

‘ley found what he was looking for. In
the poison registry book of one Wetump-
ka pharmacy, he found an entry which
‘showed that three weeks before, Mrs.
Earle Dennison had bought a dime’s
worth of sodium arsenate. Questioned by
the sheriff, the clerk recalled that Mrs.
Dennison had told him she “wanted to
kill some rats.” ,

Here, then, was the first direct link
connecting any principal in the case with
the possession of the type of poison
bentch bad caused Shirley Diann’s death,
Holley didn’t stop there. Before leaping
to any conclusions, he wanted to satisfy
himself that no one else involved in the

‘ death had made poison purchases in re-
cent weeks, Hence, he continued the line
of investigation until he had checked the
poison registries of every drug store and
other vendors of.poisons in the county,

'. Finally, he was sure Earle Dennison
was the only arsenic purchaser who

could have had the opportunity to ad--

minister the poison to Shirley Diann.
Yet despite the confirmation of his early

*’ suspicion, Sheriff Holley was staggered

“at the thought that this kindly woman,
*}a nurse who had enjoyed the respect
~and affection of the community for years

a person whose whole life was dedicate
to helping and serving others, might have
murdered her own niece.

Sheriff Holley had established two

* + points in a triangle of possible homicide:

, ..Means and opportunity. The third point,

» motive, was still an X factor. What pos-
sible reason could Earle Dennison have~

had for killing the little girl? In the ligh

i ee 2 ee ES a yt aa so

of the nurse’s reputation, one thought
occurred at once to the sheriff.

Maybe the good woman had suddenly
become deranged, taken leave of her
senses. She was 54 years old. This was
conceivably within the range of a
woman’s “dangerous age,” when meno-
pausal changes in body chemistry some-
times affect the mind.

More realistically, however, Holley
knew there was another possibility that
would have to be checked out—the profit
motive, certainly the most common cause
of murder by far. ©

Again the veteran lawman set out on
an unobtrusive but purposeful line of
inquiry. This time he called on insurance
agents around the county. In the ¢gourse
of seemingly casual chitchat, he always
managed to ask the offhand question, “By
the way, does Mrs. Earle Dennison hold
any life insurance policy with the com-
pany you represent?”

He received a discouraging number of
negative answers, One agent said yes, but
it proved to be a policy Earle had on
her own life. But the sheriff’s persistence
paid off.

W hen he put the question, finally, to |

Bradville Ameshaw, he was advised that
Mrs. Dennison had held an insurance
policy for $5,000 on the life of Shirley
Diann Weldon. And the agent pointed out
a rather interesting thing about the pol-

icy.

“The premiums had been paid up to
and including May Ist,” the agent said.
“The policy was valid because the girl
died before midnight on May ist. Mrs.
Dennison didn’t make a premium pay~
ment that day, and if the child had died
after midnight, the policy would have
lapsed.

‘And here’s something else that might
interest you,” the agent continued, “I’m
pretty sure Mrs. Dennison had another
ro on the little Weldon girl with Hul-

ert Samuels, over in Deatsville.”

Sheriff Holley drove to Deatsville at
once to confer with Samuels, and found
that the report was true. Moreover, Mr.
Samuels said he’d been thinking of get-
ting in touch with the sheriff “because
of a funny thing that happened.”

“Like what?” Holley asked.

“Well, ordinarily, I wouldn’t _ have
thought anything about it,” the insurance
man replied, “but with the little girl
dying so suddenly and all, it kind of
bothered me thicking about it...

“Mrs. ‘Dennison sure made that last
play 90 ina ght Sheriff. She came in

ere just before. closing time that day—
May 1st—and got that payment in just
under the wire. It was the last day of
the thirty-day grace period.

“And it wasn’t more than four or five
hours later that the girl died.”

“Could have been coincidence,” Sheriff
Holley said guardedly.

Mr. Samuels conceded that point. “But
I couldn’t help thinking of something
else,” he said. “You know the Weldons
lost another little gil a couple of years
ago, Polly Ann. I happen to know that
Mrs. Dennison had about $5,000 worth of
policies on Polly Ann.”

Sainvcus gave the eect the name of

a Wetumpka insurancé agent from whom

Mrs. Dennison had purchased the

pe, Holley called on him and con-s
ed the story within the hour.

Holley than went to the office of Cir-
cuit Solicitor Huddleston and came right
to the point: “I think Mrs. Dennison
killed Shirley Diann. What’s more, I
think she also killed her sister, Polly
Ann, I want an exhumation order.’

Huddleston took the precaution of
checking the death certificate -of Polly
Ann Weldon, Cause of death was listed

fF ERD
raat it

as “food poisoning.” That was. enough
for the prosecutor, He obtained the order
and the child’s body was exhumed,

On the morning of Thursday, May 8th,
Dr. Rehling reported to the sheriff that
his examination of the exhumed remains
of Polly Ann Weldon definitely disclosed
the presence of arsenic in the child’s
body.

The sheriff arrested Earle Dennison
within the hour. The charge was murder,
Her reaction was one of wounded in-
nocence. During attempts to interrogate
her in Prosecutor Huddleston’s office, she
branded the charges absurd.

At half-past three Thursday afternoon
she was Feotste before Judge Edwin
Stanford and formally charged with two
‘counts of murder, Again she protested
her innocence.

But when the sheriff was sworn in to
recount all the evidence he had accumu-
lated against the suspect, the judge ruled
that Mrs. Earle Dennison should be held
without bail for action by the Elmore
County grand jury. Pending such action,
he ordered her remanded to the Julia
Tutwiler State Prison for Women in
Wetumpka.

The next development came with sud-
den and dramatic swiftness. Early the
very next morning, Earle Dennison was
found unconscious in her cell by matrons
bringing breakfast to her. She was rushed
to the hospital, where her condition was
diagnosed as barbiturate poisoning. If she
had not been found for another couple
of hours, her suicide attempt would have
succeeded, As it was, she was saved.

She was placed under 24-hour guard
when she was returned to her cell two
days later. Her .clothes and her person
had been thoroughly searched first, of
course,

It had been learned that, somehow, she
had smuggled a dozen barbiturate tablets
nip ego and taken them during the
night, :

For a full week, Earle Dennison |

brooded in her cell, a lonely, pathetic
figure in her drab prison garb. She had
begged for permission to wear her high
heeled shoes; they showed off her well
formed legs—trim calves tapering to nar-
row ankles. The request was ed,
She turned morose and sullen,

At the end of a week she seemed to
have reached a decision. She asked to
speak to Mrs. Edwina Mitchell, warden
of the women’s prison.

“I’ve made up my mind,” Earle Denni-
son began when Warden Mitchell came
to her cell, “I want to talk about it. I
gave that poison to Shirley Diann, I'd

ought it without thinking of killing her.
The idea just popped into my head when
I was pouring the soda.”

Warden Mitchell summoned Circuit
Solicitor Huddleston and Sheriff Holley
and, in the presence of witnesses, Earle
repeated her statement to them, Under
their questioning, she made further ad-
missions. °

She told them she had bought the |

dime’s worth of arsenic at the local drug
store. She admitted making the last-
minute payment on the child’s life insur-
ance policy of which she was the bene-

during the interrogation session, a state-
ment which struck her listeners as very
strange indeed, considering her long
background ‘and experience in the med-
ical profession.

“I watched the autopsy,” she said, “but
I never thought Dr. Rehling would find
that much arsenic in the body. Shirley
Diann didn’t get very much. It just didn't
cross my mind that they could go in the
body and find if the child was poisoned
with arsenic. I wouldn’t have given her
arsenic if I’d thought they could find it.”

/

5 Mrs. Den
sistency w)
-* inals in tk
~ idence of
$5,000 wor
niece and
‘ She bought
fore she ac

with her d

home,

Nonethek
the slaying
meditated.
child’s cup
explain, Th
could persu

-What abo

who had di

two years

her?”
_ “Absolute
ringing sinc.
But unde
Dennison m
gingly she <

—she had

poison on t

n was eat
“But she
Earle Dennis
She also
4 Ann some ix
the girl died
Poisoned,” sh
What abo
husband, wh
denly only <
death? Had s

The questi
sulk. She wa:
she complair
deaths of hex
enough sorro
men to plagi
ceased husba

im.

It was fine
Lemuel Dem
tor’s office w
than enough
Dennison of 1
grand jury re
on_ two chars
Solicitor Hud
on only one,
wisely reason:
more recent,
of the fresh e
Holley had so

The accuse:
to begin on VW
the court of Ci

4 was delayed |

suicide attem:
wrists with a
found on the fi

Subsequent
cover how she

Again she v
It was estimat
a half of bk
brought about
Dennison was
the trial to beg

In his open
Huddleston de:
of little Shirle
worst crime ev

i ‘ 14 ”
ficiary. She made yet another statement } ot Alabama.

Dennison case
hundred years
say that this p:
pily ever after?

His dramatic
when the jury
9:25 pm. on
Saturday night

amajority of Elr

foregone their

jactivities to co

the courthouse j
A hush fell «
room as Judge

ie


3 enough
the order

May 8th,
eriff that
i remains
disclosed
te child’s

Dennison
3 murder.
nded in-
aterrogate
office, she

afternoon
‘e Edwin
with two
protested

orn in to
accumu-
dge ruled
1 be held
2 Elmore
2h action,
the Julia
‘omen in

vith sud-
Zarly the
lison was
7 matrons
as rushed
ition was
ng. If she
er couple
ould have
ae |

Mrs. Dennison now exhibited an incon-
sistency which is typical of many crim-
inals in the face of overwhelming ev-
idence of their crime. She had bought
$5,000 worth of life insurance on her
niece and made herself the beneficiary,
She bought the arsenic three weeks be-

fore she actually used it, and she had it-

with her during her visit to the child’s
home,

Nonetheless, Earle Dennison insisted,

e slaying of Shirley Diann was not pre-
meditated. She had put arsenic in the
child’s cup on an impulse she could not
explain. That was her story, and nothing
could persuade her to change it.

What about Poll Ann, her other niece
who had died sud enly and mysteriously
ete dara ago? Had she also poisoned

er?

“Absolutely not!” Earle declared with
ringing sincerity,

But under further questioning, Mrs,
Dennison made a few concessions. Grud-
gingly she admitted that once—just once

—she had put a salt cellar containing
poison on the table where little Polly
was eating,

“But she didn’t use any of the salt,”
Earle Dennison hastened to add,

She also admitted she'd given Polly

some ice cream in a dish the day
the girl died, “But the ice cream wasn’t
poisoned,” she insisted,

What about. Lemuel Dennison, her
husband, who also had died quite sud-
denly only a month before Polly Ann’s
death? Had she poisoned him?

uard The question drove the nurse into a
two sulk, She was being put upon, persecuted,
‘rson she complained, Lord knows the tragic
| first, of deaths of her two nieces had caused her
— pxpicicod A pba wih = of ie ay
Bi he men plague her about her “dear de-
pos Ene ceased husband.” She refused to discuss
ite ta ws him
; :
i sing Si ee poaly ape 2g exhume
: emue lennison’s y. e prosecu-
gorse tor’s office was confident they had more
"She had than enough evidence to convict Earle
her high Dennison of murder, The Elmore County
her well grand jury returned true bills against her
ig to nar- on two charges of murder, but Circuit
; refused. Solicitor Huddleston elected to try her
; on only one, that of Shirley Diann, He
einived to. Wisely reasoned that this case, being the
“asked to. More recent, would be 2 a because
1, warden of the fresh evidence in it which Sheriff
? Holley had so skillfully unearthed.
Se remit The accused nurse’s trial, scheduled
hell cameo begin on Leterrier August 13th, in
ho t it. I the court of Circuit Ju ge Oakley Melton
se Yq was delayed by Earle Dennison’s secon
owed abe suicide attempt. She had ‘slashed her
5 é te hen wrists with a razor blade, which was
ed found on the floor of her call beside ee.
: : Subsequent investigation failed to dis-
d 1 kee cover howe she had obtained the blade.
iff a ‘ Again she was rushed to the hospital.
ot i It was estimated she had lost a pint and
sk aa 7 a half of blood, but swift treatment
irther ad- brought about a speedy recovery. Mrs,
Dennison was declared well enough for
the trial to begin the next day.
sught the In his opening statement, Prosecutor
local drug Huddleston described the wanton murder
the last- of little Shirley Diann Weldon as “the
life insur- worst crime ever committed in the State
the bene- of Alabama.” He also declared, “The
statement Dennison case will be history for one
n, a state- hundred years in Alabama. Shall history
TS as very ay that this perfidious nurse lived hap-
her long mie ever after?”
. the med- “His dramatic question was answered
when the jury returned its verdict at
* said, “but 9:25 pm. on August 16th. It was a
would find §aturday night, but it appeared that as
‘~ Shirley najority of Elmore County citizens had
didnt bregone their usual week-end social
in the tivities ‘to congregate in and around
soned the courthouse in Wetumpka,
given her

d find it.”

‘A hush fell on the janpocked ‘court-
ftom! as Judge Melton asked the jury:

“Have you reached a verdict?”

The foreman of the jury rose from his
seat and answered: “We have, your Hon-
or. We find the defendant guilty of mur-
der in the first degree, as charged,”

Judge Melton thanked the jury, then
ordered the defendant to rise and face
the bench. Earle Dennison, a plain, an-
gular, forlorn figure, obeyed. The judge
asked her if she had anything to say
before sentence was passed upon her.

Earle shook her head negatively, with-
out speaking,

The judge then sentenced her to die in
the electric chair at Kilby Prison, in the
manner prescribed by law, on the 26th
day of September, in the Year of Our
Lord 1952, °

Like many other states, however, Ala-
,bama law requires that all capital sen-
tences be reviewed by the higher courts,
so a stay of Judge Melton’s death sen-
tence was automatic,

Meanwhile, Earle Dennison was re-
turned to her cell in Tutwiler Prison to
await. the findings of the high court re-
view of her case. :

It was a long wait, almost exactly a
year and a half, in fact,

During that long, lonely vigil, the
Wetumpka nurse aged startlingly. Her
dark, stringy hair became streaked with
gray. Her angular face, previously un-
lined and comparatively youthful for her
age, became deeply etched with wrinkles.

But as all things must, Mrs. Dennison’s
long wait finally ended. Early in August,
1953, the Alabama Supreme Court an-
nounced that it had considered the case
of Earle Dennison, a prisoner under sen-
tence of death by a lower court.

The justices of the supreme court were
in agreement that the verdict and sen-

tence of the lower court should be up-—

held. Mrs. Dennison’s execution was
romptly rescheduled for September 4th;
barely one month away.

The convicted murderess’ defense
counsel immediately filed a petition for
a sanity hearing for their condemned
client. Their motion. was granted, and a
court ordered her sent to the psychiatric
division of Bryce’s Hospital in Tusca-
loosa. She was delivered to the psychi-
atrists there on August 23rd.

While awaiting the results of this
mental examination, Mrs. Dennison’s at-
torneys also filed a petition with the
Governor of Alabama for a clemency
hearing. This also was granted, contin-
gent upon the findings of the psychiatrists
now examining the condemned woman,

Those findings were announced on
August 30th.

It was given as the opinion of the
examing board that Mrs. Earle Dennison
was sane. She was returned to her
cell in Tutwiler Prison, but she remained
in these by now familiar surroundings
for only 24 hours,

On September 1st, in a motorcade
guarded by cruisers of the State Patrol,
she was transferred to a cell in Kilby
Prison, in Montgomery. This cell was
near Death Row and had been specially
prepared to provide the condemned,
woman with privacy in the male prison.

When the prison was built in 1922, its
architects, either through optimism or a
chivalrous belief in the virtues of the

entler sex, had not foreseen the need
in women’s accommodations in the
Death House. ‘

Four days still remained till Earle
Dennison’s scheduled execution, but it
was here in Kilby that she would wait
to attend the governor’s clemency hear-
ing.: This was a short wait, for when
Governor Persons was advised that the
transfer of the prisoner from Wetumpka
had been made, he arranged to hold the
clemency hearing the very next day, at

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two o'clock on September 2nd.

“© Guards and the matrons especially as-
signed to her brought Earle Dennison
-to the governor’s office, where her attor-
“neys were waiting. She listened phleg-.

“matically as they presented their argu-
-ments. The session concluded when Gov-

*“ernor Persons declared he would take
_. the case under advisement: and render
“his decision later.

“When Earle was returned to her spe-
ial cell at Kilby Prison, she knew that

unless the governor intervened, she
_ would go to her death shortly after mid-
_ night of the following night. If this pros-
* pect disturbed her, she betrayed no sign
» | of it. On the contrary, she seemed to have
“been buoyed up after the clemency

hearing.
She was aware, naturally, that her case
bre, not only

in Alabama, but all over the country.
Newspapers had made much of the fact
.that no white woman had: ever been’

executed in the State of Alabama.
* Would Earle Dennison, the nurse who
became a murderess, be the first? ‘
» Throughout the South, and in pony
ditori

northern newspapers as well, e
clamored ‘for clemency. There were
“many soberly written discussions of the

‘merits of the “legal definition of insan-

ity,” which is predicated almost exclu-
Aely on a person’s ability to distinguish
right from wrong. Did the mere posses-
sion’ of that ability preclude the possi-
‘bility that a He under strong physical
or emotiona

commit a compulsive anti-social act?

In retrospect, it is plain that Earle
Dennison, after she returned to her cell
from the clemency hearing, believed the
odds were in, her favor, She seemed
confident that she would not become the
first white woman to be executed in
Alabama. ;

When her dinner was brought to her
at six o’clock on the eve of her execution,
she ate it with a hearty appetite. Other
than a heap of bare chicken bones, she
left hardly a scrap of food on her tray.

Afterward, over coffee, she voluntar-
ily entered into a conversation with the

. matrons assigned to her. She commented

upon what a nice man the governor was,
“a real gentleman.” She speculated that

stress might involuntarily _

‘they ought to be hearing from him any

moment,

“I know that no white woman has ever
been executed in Alabama,” she said. She
added, confidently, “I’m sure they’ll never
execute me.” '

But as the hours dragged on, with no
word from the governor, Earle began to
betray signs of increasing anxiety. She
couldn’t seem to control her hands; the
moved incessantly. Her fingers twitched,
she touched her cheeks, fussed with her
glasses, fiddled with her hair ends, Beads

erspiration showed on her forehead

of.
: mae she complained of the heat, although

it was not uncomfortably warm. She
drank innumerable glasses of water.”

At a quarter past 10, she leaped to her
feet when the chaplain appeared at the
door of her cell. Earle seemed ‘to know
with the first look at him that he brought
bad news. Her whole body seemed to
pe and grow smaller, like a suddenly
deflated balloon.

She was right. The governor, making
his fateful decision, had said, “God bless
Mrs. Dennison’s soul” after refusing to
stay her execution.

The chaplain tried to comfort her, and
they knelt together on the hard stone
floor and prayed, She seemed too numb
to cry, but the tears came when the
warden appeared at 11:30 p.m. with the

rison barber, who began to shave her
hes for the electrodes.

' Earle’s eyes were still red-rimmed, her

features tear-streaked, when she was led
into the death chamber at two minutes
after midnight on the morning of Sep-
tember 4, 1953. The incongruous high
heels—which she had been allowed to
wear on-her last day on earth—clacked
erratically to her reluctant steps.

She glanced nervously at the rows of
seated official witnesses, but quickly
averted her eyes. She did not look at
them again. —

Two waiting guards stepped forward.
They took her elbows and led her to
the ugly chair with its accoutrements of
death. Earle moved like an automaton
pg turned and sat in it without being
The guards swiftly fastened the straps,

* then waited to lower the hood, which

would cover her head and face, while the

warden went through the ritual of asking E

the condemned woman if she had any °

final statement to make. :
For a long moment, it seemed as if

she would not speak. But then she

. glanced up at the warden. Her face ap-

peared strangely small with the horn-
rimmed glasses removed.

Then, in a soft voice barely above a
whisper, she said: “God has forgiven me
for all I have done. I have forgiven ev-
erybody, and I hope everybody has for-
given me.”

As the guards now made a final check
of the straps and electrodes, the woman
spoke once more. This time her voice
was loud enough for everyone present

_ to hear her words:

“I think these straps are too tight.” |

They were the last words Earle Den-
nison uttered.

Moments later, with the hood now
lowered in place and concealing her head
and face, everyone stepped back from
the electric chair. An attendant, at a nod
from the warden, waved a yellow pad-
dle as a signal to the executioner, who
was screened from the view of witnesses.

An instant later, the switch was
thrown, and the woman’s body strained
convulsively against the straps that were
too tight. A couple of the official wit-
nesses gasped.

The body finally relaxed as the power
was shut off. The prison doctor me
forward, ripped open the bodice of her
dress, and applied a stethoscope to her
heart. : :

It was 12:12 a.m. when he straightened
and said somberly: “I pronounce this
woman dead.”

With the death of Mrs. Earle Dennison,
a precedent had been shattered in the
State of Alabama. The state had exe-
cuted the first white woman in its —

Eprtor’s Note:

The names Bradville Ameshaw and
Hulbert Samuels, as used in the fore-
going story, are not the real names of
the persons concerned. These persons
have been given fictitious names to
protect their identities.

. ». Brunette in
The Duffel Bag -

2 _ , (Continued from page 45)

OA,

her well. She used to stop there fre- -

quently for her favorite seafood—shrimp
and lobster.” ‘ :

Mr. Bozzelli looked a little surprised,
but then he nodded sheepishly. “Of

. course, I remember the restaurant now,”

he said. “It was her favorite place for
seafood. I’d sort of forgotten where we ate
that night—all the confusion and excite-
ment and all.” fi

Suddenly Captain Kelly rose from his
chair, his manner changed from the
kindly questioner. “Bozzelli,” he now
said evenly, “we have learned that your
daughter died within three hours after
she ate that seafood.” :
Mr. Bozzelli seemed shocked by the
change in the captain’s attitude. “I—I
don’t understand,” he stammered. ’

“I. mean that your -daughter was
beaten and strangled to death within two
to three hours after she left that restaur-

ant and returned home with you. ?

“That would be at about eleven’ o’-
you claim you left her sit-
.ting beside. the television set. Perhaps
he’ was preparing for bed, maybe re-

d. her. shoes. and_ skirt,

irt, And you, —
ian}

i ee a ll I a

Peter Bozzelli, by your own admission .

are the only person who was awake in
the house with her at that time.”

The detectives waited. The man who
for a week had played the part of an an-
xious, grieving parent, did not break
suddenly, For several long moments, he
sat silently, his head bowed, his face
buried in his hands.

He was still sitting that way when De-
tectives Francis Kelly and Robert Win-
chester entered the homicide chief’s
office. Winchester was carrying a glass
slide on which were several dark brown
specks,

Mr. Bozzelli looked up as they came
in, anxiety in his eyes. Then his gaze
shifted to the glass slide as Winchester
held it up.

“It’s blond, Mr. Bozzelli—dried blood,”
the detective said quietly. “We scraped it
from the couch in your living room. Not
much—but enough for the lab tests,
Those injuries on your daughter’s face
were slight, but just enough so that a
few drops of blood fell when you beat
her as she sat there on the couch.” .

It was ‘the crusher. After that, Inspec-
tor DuBois revealed later, Peter Bozzelli
broke down. Finally he admitted, “I knew
all along you’d catch me, sooner or later.”

According. to Bozzelli’s formal state-
ment, as disclosed by Inspector DuBois,
the father had ‘quarreled violently with
his oldest daughter after they got home
late on the night of aa The quar-
f }

rel started when Bozzelli questioned
Gloria about’ $600 in savings he’d been
keeping in a dresser drawer.

“He claimed the money was missing
and he suspected the girl of knowing
something about it,” DuBois said as he
prepared to present the evidence upon
which Bozzelli was arraigned before
Magistrate Ralph F. Knox during the

first week of May, on a first-degree ©

pape.

<-

aoe

murder charge. “There was a bitter ar- ©

gument that finally led to his striking ~

Gloria with his fists.”
The five children sleeping upstairs had
heard no commotion, Bozzelli said Gloria

did not scream. Even had she attempted |
to do so, her cries would: have been cut ”

off by the nylon stocking he twisted *

ir og her throat as she struggled with
im,

The father, according to details of his
statement released shortly after he was
arrested, just one week after the discov-

gm at

ery of Gloria’s body in Iron Ore Creek, ”
then took the dead girl to the basement §

of their home. There he crammed her
body into an old duffel bag he found be-
hind some boards, /

After that, he carried the bag out to
his Pontiac sedan, which was parked in
the driveway. He said the trip to the
New Jersey creek was only a _ half-
remembered nightmare to him. In the
back seat of the car, Gloria’s doubled up
body lay in the olive drab duffel bag.

What happened to her shoes was never
a esl

sean
> ase

~ learned. Bo:

she wore th
but the fac
had been re

would indic:
been taken

' fatal quarre]

; t one p
that led to ]
Asher Wald
suspect shov
sult of the |}
was known
examination,

the }
that no dur

suade the m:

to continue,

Authorities
learned that
heard to obj
ter’s plans fc
the death of
he had come
take care of
the five youn;

According t

so jealous of .

ria that he j

chaperone, eve

the handsome
whom she had

It was also «
before the sl:
been indicted
charge of brut
fellow union
other men in
wood Hotel, fo:

The victim <
told police, “
when he lost
ee in his «

The punishr
pcan for t
daughter was
onment in Ee
Soon after his
tution, howeve:

gan to worse:

Dr. N.S. Ya
trist, said he

rmer master
wish to live,

In a letter {
Common Pleag
sbi that follo
eptember, 1954,
riously ill,

Dr. Yawger
the assault cha
Bozzelli be held

© request, °

While confine
meanwhile, Boz:
take any food, |
persuaded to ;
Eventually, he

It was clear
punishment whi.
upon him, he hir
his own punishn
haunted 3g Vv
ments was the n

debated.

. In any event, ]
tence ended on
that date, he diec

, cot. His earthly t.
still had to face t
Justice than man’,

The names,
Van Morgan, as
story, are not ti

erTsons concer

ve been giver

protect their idk

hoa

eres nee, Cate


ete
AG
teat we otticers, after his breth- ‘ion
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Tuscaloosa March 28th 1832.
To his Excellency John Gayle.

Your letter of the 26th to Col Crabb and myself we recd. this
morning. I hope you will not think me troublesome. I feel assured
you will correctly appreciate my motives in making the last appeal
to your clemency for the unfortunate and innocent slave Dick.

In the petition which we sent you the other day, it was only
our object to show your Excellency that the Law under which Dick
was convicted was unconstitutional , that you might respite the
sentence until application could be made to the Supreme Court
Judges - not that we wished you to decide the judicial question
Yet it was necessary that you should see that the application was
not wholly groundless.

If we had not made application to Judge Perry for a review of
the case, I have no doubt that Judge Collier would have acted on
it, but as the application has already been made to a Judge
possessing equal powers, he now could not with propriety interfere.

I discover one error (which was doubtless owing to the
pletition not setting forth the fact with sufficient clearness) in
presuming that Judge Perry examined the proceedings of the Court
below. He refused to do so and would only grant the habeas corpus,
and would not look into the former proceedings. Judge Perry would
have referred the case to the Supreme Court but he decided that he
had no power to do so.

It is not our object to have the negroe discharged - but if
the law should be decided to be unconstitutional the case would be
sent to the Circuit Court for trial.

If your Excellency would only give us time to apply to Judge
(?) to apply for a prohibition we will be content.

I am with due regard
Your friend,
P. Martin.

(Papers of Governor John Gayle, Alabama Department of Archives
and History, Montgomery, Alabama.)


Application has been made to me for an order to bring into the
circuit court for consideration the judgment rendered agst. negro
Slave Dick by the jury of the county court of Fayette & two
justices of the peace, upon a suggestion that the act establishing
the tribunal was unconstitutional and the statement charging the
Pri. alleged crime.

Had an application been made to me in the first instance, I
should have granted it, in order that the questiokns might be
reviewed and definitely settled without regard to my own opinion.
The Judge of the cty. court of Tusca., a highly respectable lawyer,
has pronounced the act unconstitutional, and other professional
gentlemen, it to be so. Under these circumstances the quiet of the
community (?) an expression of opinion by the highest tribunal upon
the subject. But a Judge of high respectability possessing (?) (7?)
has passed upon the application and forestalled by his judgment.
28th March 1832. /s/ Collier.

(Papers of Governor John Gayle, Alabama Department of Archives and
History, Montgomery, Alabama. )


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Slave DICK, Hanged Fayette, Alabama June 20, 1832.

"To His Excellency John Gayle, Governor of the State of Alabama
We, your Petitioners, humbly represent to your honor
that a petition is now in circulation directed to your Excellency
praying a respite of a few weeks for a negro man Slave named Dick,
the property of Mrs. Duke who is now convicted and condemned to die
on Saturday next for the crime of attempting to commit the rape on
the body of a white woman. We, your Petitioners, believe the said
Negro Dick Guilty in the highest degree of said crime as was proven
to the full satisfaction of the court and tried by a fair and im-
plartial jury of twelve4 men. We therefore Protest against your
granting a respite as we believe do so might arise for an escape if
his time is prolonged.
February 21st, 1832.

/s/ William Burns, Nimrod Dodson, Charloie Palmer, Mark Russell,
Daniel L. Riggins, Andrew W. White, George Hubbert, Robert M.
Ringo, William Waldrip, William Ham, Joseph Abel, Lewis Forman,
James Longston, William Davis, David Franklin, James Lindsey, John
C. Moore, (?) Paster, Daniel Peyton, G. E. Morris, (?), G. W. W.
Mitchell, William Thompson, (?), and Thomas Johnson.

(Papers of Governor John Gayle, Department of Archives and History,
State of Alabama, Montgomery, Alabama.)

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DICKERSON, Pomp, black, hanged Opelika, Lee Co., August 27, 1916.

“Slated to be hanged Friday at Opelika,k Ala., for the murder of his wife, Tom Dickerson,
a negro, escaped Monday from the jail there and is supposedly heading for Atlanta disguised as a
woman. The Atlanta police are looking for him.”-Journal, Atlanta, GA, 6/22/1915.

“Repeated threats of suicide or escape let to the removal to his county jail last night of
Pomp Dickerson, who was sentenced at Opelika yesterday to be hanged August 27. He told
officers here last night that he is innocent and will never go to the gallows. The negro escaped
from Lee County Jail June 22, four days before he was to have gone to his death.”~Advertiser,
July 27, 1915.
“Negro Hangs at Opelika,

“Opelika, August 27, 1915-Pomp Dickerson, a negro wife murderer, was hanged at
Opelika yesterday. He confessed to the crime before mounting the gallows. Dickerson escaped
from jail the day before he was scheduled to hang two months ago, and left a not saying he would
not be caught alive. He was taken while asleep a week afterwards and rushed to the Montgomery
County Jail where he made repeated but ineffective efforts to escape.”-Advertiser, Montgomery,
AL, 8/27/1915.


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a. “note saying he would’ not.

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Nas Bseni an : Opettlan oe
| Montgomery, August 27.-Pomp Dicker- |
| fon, a’ nesro wite: murderér, was hanged}
fat Opelika. today. He confessed to the |
| rime before mounting'the gallows. Dick- |

erson escaped from jail the day before

he was scheduled to ‘hahg two months |
lago, and left a note saying he would not |
ibe .caught alive. He was taken while |
fasleep a week afterwards, anil rushed to.
ithe. Montgomery county jail, where he
made TENORS but Ineffective efforts to



e Chief
Adolph
1 sketch
. After-
ntaining
ispected
experts
usband’s
rom the
ed rob-

ked out
nom she
wo thugs
er home.
ten-year
ught to

f about
-con was
dow. But

ected the

hundred
eau, was
t in the
man to

» fainted.
ss: “They

the same
se of the

en I ran

Richard
talking
urned to
th infor-
the in-

a stone’s
* seeing
1 front

h was

e saw
hey gave

the car
out eight
sreaming
-y. “The

house
»etween
d Saisi’s
veway a

rs were
ive been
oelieving
‘ightened
iy,” Me-
ommitted
certainly
t neigh-

| another

.ccord on
i been in
when the
ef Deeley
meant
mistaken
the house
knew the
the pair
asement

iting out

Mrs. Saisi
hear foot-

he house.
fact that
istinguish

voice was

to the in-
e robbery

the insur-

» Saisi’s
the two
s hands

full of bank notes” and the subsequent
report of the insurance company official
that the agent always placed his money
in a company envelope before secreting
it.

“Strange,” mused McMahon, “that a
thug who had just seen his pal murder a
man would stop to count the take, know-
ing that the victim’s family was at home
and must have heard the shot.”

“You’re quite sure the man did know
that?” inquired Deeley.

“Well, the woman herself has told us
the TV was on and the house lit up. If
the robbers were lying there in wait when
their intended victim arrived, they cer-
tainly would have heard the television.
If they came in after Saisi got home, they
would have seen the lights from the front
living room as they pulled up before the
house.”

On Wednesday, Deeley appeared at the
coroner’s inquest and asked for an ad-
journment until November 25. “We have
completed our initial investigation and
have no clues, no leads and no suspects,”
the detective chief said. “We must have
more time to search for the killers and
learn whether anything other than rob-
bery motivated this killing.”

The delay was granted and a five-man
team was assigned to McMahon, with in-
structions to “work on this one until it’s
solved.”

The following day Detectives Curry
and Aldworth, along with Frank Drantz
Joseph Di Leonardi and Arthur Schyk#
started checking on the backgro
the victim, his personal and bus
sociates and members of his family. One
of the first things they unéovered was
that Saisi had been sluggeA and robbed
two months before after

Late in August the pé@lice had been
called to the Saisi home after the insur-
ance agent reported beings
night’s collection by a ldne bandit who
had waited in his darkendd garage as he
drove home. The robber, i
described as a masked

ance agent as he got out of his car. Ap-
proximately $200 was taken)

Although Saisi attended a ¥
lineups, the slugger was neve
hended. During that holdup, Ma
had been putting her children to bed™en
the second floor of the home. Until her
bleeding husband appeared at the door,
she had not been aware that anything was
amiss, she told police.

While detectives were checking back
on the earlier robbery, Dominick Ja-
conetty of 512 North St. Louis Street, a
brother of Mrs. Saisi, informed police that
he had been in the basement of his
brother-in-law’s home only a few minutes
before the murder!

“I remember looking at my watch and
seeing that it was just 9 p.m. when I drove
up before the house in my black sedan,”
related Jaconetty. “I’m a drummer in a
Loop district night club and live only a
few doors from the Saisis. I store my
drums in Pete’s basement and went there
to pick them up Monday night before
work. If the killers were there waiting for
my brother-in-law when I stopped by, I
should think they would have jumped me
as I entered the darkened basement.
We're about the same weight and height.”

McMahon had the answer to that one.
The reason Jaconetty had not been at-
tacked, he felt sure, was because the
killers were acquainted with the man for
whom they waited. And that probability
added to the mounting evidence that there

was more than a $185 robbery behind the
murder.

RANE RTT SITE

During the week following adjourn-
ment of the inquest, McMahon’s five-man
detective team questioned other relatives
of the slain insurance agent. From Saisi’s
parents, Aldino and Margaret Saisi, de-
tectives learned that Peter, the youngest
of their five children, had studied for the
priesthood before going into business.
Questioned in their home at 1733 Altgeld
Street, the elderly couple agreed with de-
tectives that a motive other than simple
robbery might lie behind their son’s death.

“Peter and his wife both had their
enemies,” the mother said bitterly. “Soon
after my son met Mary on a blind date in
1950 he gave up his studies at the semi-
nary in Missouri. A year later they were
married and for a while things went well
with them. But after the birth of their

_ imprisonment for sho:
. Parrish to death’ Augi

~—uled to be electrocuted Mar
1959, for the robbery-stra

hae. ngton, Mich
July, 1958, killing.

e

first child, John, in 1952, Peter’s wife ac-
cused him of chasing around with a 17-
year-old girl whom he had met at the gas
station he and his brother Albert were
then operating on the West Side.”

“There was no truth in her accusa-
tions!” heatedly interrupted the. slain
man’s sister, Mrs. Loretto Alemany.
“Peter proved that when he won a divorce
from her in 1953. Anyway, Mary didn’t
lose any time in getting remarried.”

The dead man’s relatives revealed that
shortly after her divorce, Mrs. Saisi had
wed one Frank Zaremba. But she had in
turn divorced Zaremba after only six
months of marriage and, pregnant with
her second husband’s child, returned to
her first husband. They were remarried
in 1955 and Peter Saisi adopted the child
fathered by the second husband. A year

coffecmcey wen repre rm rr me

inte Mary gave birth to a third child, a
girl.

To Detectives Curry and Aldworth,
Mrs. Alemany described her slain broth-
er’s wife as spending quite a bit of time in
taverns with a pair of girl friends while
her three small children remained at
home uncared for.

Curry, who had been present imme-
diately after discovery of the body, re-
membered Mary Saisi saying, “I never
touch the stuff,” when she was offered a
drink of whisky by the physician called
in to quiet her. He related the incident to
the dark-eyed sister of the victim and
Mrs. Alemany laughed shortly and sug-
gested that the officers check at the neigh-
borhood taverns. The two detectives re-
plied that their team-mates were already
doing just that.

The following day Di Leonardi, Drantz
and Schultz reported that they had visited
a dozen taverns and night spots in the
neighborhood where the

investigation. “So farNall we’ve learned
is that he is pretty well Built, has crinkly
dark hair and affects tha tight-fitting
jeans and black leather jack&t of the hot
rod crowd. Several of the Salgi woman’s
friends have heard her call him Dick, but
so far we've been unable to get\a line on
the guy or learn his full name.

“Since the murder neither Mp

nor her youthful companion |
seen in any of the spots they formerly had
visited,” Drantz added. He suggested that
additional plainclothesmen be/staked out
in some of these places, in
the youth might reappear.
hard to recognize,” said t
has a mania for fancy
people with whom
that they have
many as thrger four different shirts dur-
ing a_simgle afternoon or evening.”
‘or the first time the disappearance of
the six shirts from the basement of the
Saisi home made some sense to the homi-
cide chief. He wondered, though, whether
Mary Saisi had given those shirts to her
youthful admirer before the murder of
her husband,

During the third week in November
police learned that Saisi had taken out
a $25,000 double-indemnity insurance
policy on his life. His wife Mary had been
named sole beneficiary.

Two days later Detectives Di Leonardi,
Schultz and Drantz located an attractive
28-year-old divorcee who confirmed
being one of the two women with whom
the widow had spent afternoons bar-
hopping. This woman, traced to an Ohio
Street apartment after the police obtained
a description of her from acquaint-
ances, readily identified the 23-year-old,
leather-jacketed youth who had been
seen occasionally with Mary Saisi since
the previous May.

“The man you're looking for is Richard
Lansing,” Mrs. Juanita Mae Kruger told
the three detectives. “But the last time I
saw him—or Mary either, for that mat-
ter—was on the night of Peter’s murder.
Dick came over to my place about mid-
night. He said he had just heard about
Mary’s husband being shot to death. He

od 53

e won't be


EDWIN RAY DOCKERY, wh, elec., 12-11-1959. (Morgan)

"25-years old. Sentenced to die in Nov. 1958, for the 8-9-1958 strangulation
murder of Willie Thelbert Heatherly, Cullman Co., whose body found in

wooded area near Cullman-Morgan County line. Dockery's last words, "I am not
guilty of 1st degree murder, but | think | had a fair trial."

"When he entered chamber displayed faint smile to newsmen. He stepped out of
black loffer shoes while being strapped in chair. Prison officials stated

he ate most of last meal he ordered: a dozen oysters, a dozen shrimp, 2 veal
cutlets, salad, z dozen buttered rolls, banana ice cream pie, a package of
Juicy fruit chewing gum and a Dutch Master cigar. Returned to Catholic Church
before death. Body taken to Fayette and turned over to relatives for burial.
Dockery turned 25 on 3-5-1959. In clemency hearing he pleaded with Gov.
Patterson to allow him to take lie detector test, claiming he killed Heather ly,
a Korean veteran, in fighting off homosexual advance. "I took a life but

it was in defense of my own" he told Governor Patterson." DECATUR DAILY
12-11-1959.- photo on page 1 of DAILY for 12-10-1959 with following:
"Heatherly's body found in thicket just inside Morgaon County line off

highway 31. Heatherly's body found several days after killing near spot

where they had parked Heatherly's car after meeting in a Birmingham bar.

A belt was knotted aroung Heatherly's neck. Once before, while serving time
on a previous conviction, Dockery said he sat in electric chair "just for
laughs"and once, he said, he served a man his last meal. Dockery's family
pleaded with Governor for life while Heatherly's sought to have him executed.
Heatherly 's aged mother presented petition signed by 600 defending his
character and saying he was not homosexual. Dockery told the Governor,

"| got my hands around his throat and choked him. | didn't know he was dead."
Dockery said he was willing to spend rest of life in solitary confinement if
sentence commited. Dockery a native of Fayette and former resident of
Decatur. He signed his eyes over to U of A Medcenterfor transplant. Had
originally directed that body be donated also but family objected and

he withdrew that request.



L bain 70?

Nosy J, (05 2—

ae x.

—
A

snags

THE SHELBY COUNTY REPORTER —-— MAY 8, 1952

COOPER DRAKE ELECTROCUTED

Cooper Drake, who was tried and convicted of the murder
of 4 year old Dale Holley, near Calera in 1951 was

electrocuted Friday morning at 1:00 OQ*’clock at the state
pentintary.

the Rev. J. -€.... Franks, chaplin, former pastor of
Columbiana Baptist church walked the "last long mile" with

the convicted man. The Rev Lee Davis of Columbiana was
also present.

One of the women who works in the Historical Society
Said she remembered this execution but could not remember
all the details about it. I did not have time to look
through all of 1951 to find the article. But she thought
that he was black and the child was white and they tried toa
bring it out in court that Drake have been going with the
mother of the child.

o: ee "PU 08TS "HOSTS ke dooo... a xvud Sue

S-4O(£4uUNe

=o

¥


57 SOUTHERN (2nd) 817; 257 ALABAMA 205,

DRAKE, Cooper, black, 31, electrocuted Alabama SP (Shelby) on May 2, 1952.

"Montgomery, Alabama, May 2, 1952. = Cooper Drake, 31, died in the electric chair at
Kilby Prison Friday for the October, 1950, murder of foursyear-old Dale Holley, The
Negro was charged with shooting the boy after raping his mother at the Holley's farm
home near Calera, Ala. He was never tried on the rape charge. Drake was hunted
down and shot by a posse of some 1,000 law enforcement officers and citizens in what
Tuskegee, Ala., Instituté termed a 'near lynchinge' The smiling, gold-toothed saw-
mill worker entered the death chamber shortly after midnight and hummed 'Swing Low,
Sweet Chariot,' as he was strapped in the yellow electric chair, Draked asked pri-
son MMXxAXTM Chaplain J. N,. Frank to tell his mother 'I died in the faith.' Drake,
31, apparently started to call out just as the 2,200 volts of electric current struck
him. His voice trailed off into an eerie 'o-o-o-ohh,' lasting some 15 seconds,
eee STAR, Meridian, Mississippi, May 2, 1982 (2:h.)


‘N ego Slayer’ Executed,’ A

|: First. To. Die In: Chair ‘|

. SGantinuse from. page .1).

an come wand i dle -without hard
feeling towards ‘anybody.- I want
you té tellamy mother: ‘Ee :odbye’ and
tel) her that my soul is. ax
That's. all Ihave..to say. a
“AW right, Horace,. Have a: seat’?
and. the: warden motioned ‘toward
the. electric ‘hair... ne |
De Vaughr did not hesitate, als. ,
though his movements’ were slow:
He sat down , tn the pi bl and

fguards were working ewitdly with
him;s OU

; While ‘sprepgtations ® werp being.
carried oft, De Vaughh. sat mum-
‘bling, “Jesus,’. save me!", “Jesus,
have. merty!""”. and* “Segiis. ‘be
merciful!,’, = re te og.

pened. Then. from the adjoining;
room, came the. ainister whir of
dyngmos, * er \
Then without warning, . De
Vaughn's body surged: forward
lasainst the straps and quivered,
- A.thin gray smoke. rose, tr m
tinder’ thachelmet: nes ©
Tn. the room -there was the over-
powering. odér of: pursing, human)
flesh,” oF lig
"At: the: ‘eecond shock, the. “amas
fom the. helmet ‘hecame ‘thicker:
‘and yellow. flame rose from.. the

|—In- History Of Alabame

hardly had He done so until] four |

{  For_an. instant... sothing. chapet

“etectrodé_o on the, man’s Teg.
“After the second: shock, “ phys
‘clans examined; approaching .. the
,chalr ringerly: He was’ not.dead..
Third Shock Ends Life... ~°:

“whey stepped back. After ‘the
thie, shock, De Vaughn was again
‘examined and pronounced’. déad.

Spectators filed’ out . of the.
chamber: agxious ‘to get away from
the awfu] odor: and ‘aight, of De
Veighn’s body” stumped . against
‘the ares | that held it Upright..

-, Bafore feaving? George Moore
approac 16d “the .body, and .examin-
ed. it. cldfely. He agkedsfor. a “sou,
venir. and°-one ve the syerds, cut!
off a. Bo rtion of. De vauawele belt
and gave. it te, hime”. " cat

he 4 YD tn te ae. 2 ae


ear OnSlas 4.

BROTHER 0 OF SL SLAIN MAN:
SEES LIFE SNUFFED OUT

Ce ee ae eT
THREE ‘giooxs REQUIRED To

STILL HEART; VICTIM, NEAR
Seer hem AFTER |. HOURS
: OF PRAYER, SAYS gouu SAFE

By LEWEY- ROB .
United Press Staff Correspondent
Kilby’. Prisoa, , Montgomery,
Ala., Apr. 8.—While sanenbling °
—@—feeble—
to save his soul, Horace De
Naughn, negro slayer of Auburn
' B, Moore and Mrs, Ruby Thorn-
ton, died here in Alabama‘s clece_
tric chair at ‘12:42 a. m,
Thongh near a breakdown ats
ter hours. of prayer, the negro
went to ote bong without col.

looked on unmoved.. J, C: Thorn-
ton, husband of the dead woman,

| Was unable to gain admission to
the death chamber, although he
was In the warden's office during
the , execution,

Moore, after exhausting every
means to secure permission to
witness the execution, was finally
admitted to the. death chamber by
special request of the man who
Was.executed, -

The execution, the first electro-
cution In the history of Alabama,

ent-off-smoothly,.De-Vaugha-was
a man of surprising: vitality, doc-
tors sald, It required three shocks
of 2,000 volts each to wgill his heart
The first ene was at- 12:31 and
lasted . 40,'posamds.: rat ae of

ayeoks, wer “Given. Y
: Twenty Present |

The execution was witnessed by
20 people.

De Vaughn ‘was convicted ‘of the
murder of Auburn B, Moore’ and
Mrs, Ruby Thornton on a lonely
road near Roebuck” the night of
January 16.

Moore’g head way blown ott with
a shotgun and Mrs. Thornton was
killed !n the same. manner. after
she had fled; terror aticken. down
a path leading from the spot where
Moore hag parked thelr automo-
bile a few moments” before the
murder, * A

Robbery was believed to be the
motive for the crime, -



~ DUNCAN, F.ank, white, hanged Birminghamy Ala,, Nov. 25, 190h.

Dn as

naa aa had Bae Wer ets)
“ey bp yp pred Pe of /

,

+
i ~,

>/ ae Soe P
ee ss

8 ae (i) aaa _- :
yr iy ' 72 ge) / YZ fy ‘ee troeg : bY) OF lie Bails:
oN a ees | |
Say very) a emmy. Ys Tene beara wo fF
; ~ a ae . !
a prompar ym rng MN vee boty vo yay oy

Spt aygraye? >} mdb oy FUL ES Behera ers a?

of of res / D ry pho ay} VAP IY Me 2 ) mot 5 MAAS ¥., ey ayy ae
- O% IMVIKO pe pnp V}-0 von} @) 2vU > 22 Kan APM + rh) poy
Leryn Peery OANy pag oryTVe | FOr eA) lore? Maton

; ) _ ; ‘ JURIED j p
Mta7 ot; het eae qd VI / a bat id asl | yoy wf ¢ Oke boxy

| gy Jf ‘) J, ry wy m 3 peo W) fA aq po [sz | )) piney Mel Ghihs) earn

en


‘h the easy speed of
‘edly rifled the com-
irrency and wheeled

re’s the rest of the

ave all the money.”
eply, “‘and I would

tment clouding his
1e told them. Let's

larled, “Don’t be a
place!”

n the group walked
o the night.
vounded watchman
cally called police.
at he thought there
ck had been so sud-
scriptions.

lystery men whom
again, The dreaded
to a list that was

notley underworld
¢ gang that looted
igle lead. Alarmed
that a small force

fie

was unable to supply, had placards printed and hung on their safes.
The placards read:

USE NO DYNAMITE. THIS SAFE IS NOT LOCKED.

Weir turned from the telephone when he had jotted down Clayton’s
report and rushed Detectives George Bodeker and W. A. Disheroon,
ace man-hunters of the department, to the robbery scene. He then
went into the roll call room, where all downtown officers gathered
for the 11 p. m. checkup.

“Men,” he told them, “there’s been another robbery. The gang
has just robbed Standard Oil. We’ve got to do something to stop
these thugs or turn the town over to them. I want you men to make
a check on all suspicious characters. Get this gang at all costs and
take no chances !”

Patrolman James W. Adams was a policeman who took his orders
seriously. Tall and lean, he was a recruit and had been on the force
be a-short time. With youthful enthusiasm he was anxious to
make a good record.

Less than two hours after the oil plant robbery he was strolling
along 19th street toward Third avenue with his partner, Patrolman
George W. Kirkley. . The latter was a veteran, old in the game of
seeking wanted men.

The officers were discussing the robbery when two men passed
them hurriedly and shouldered their way into the Simon saloon, at
Third avenue and 19th street. Kirkley paused and watched as the
pair entered the door, his eyes narrowing. He turned to Adams.

“T’ve been policing these streets a good many years,” he mused,
“but I never saw that pair before. I don’t like their looks nor their
hurry. Suppose we size ’em up.”

The new policeman walked into the saloon while Kirkley waited
at the doorway, Adams soon spotted the pair talking earnestly with

Armed with the knife, saws and iron pipes shown
at left, Duncan and Miller attempted a prison
escape which ended disastrously. Directly above
are dials blown off safes looted by the = .
Caught in a raid on a rooming house Fran
Randolph, at top, went to prison for 25 years.

43

Birmingham. And
ids of black smoke
iant steel furnaces
| of apprehension

dimly-lit streets,
h law-abiding citi-
nenace, laden with
ind death.

‘l, relentless tread
| red-light district
‘Buzzard’s Roost”
ve residential sec-
and safe blowings
An unknown man,
1is pockets emptied,
van alley at “Buz-
staurant owner, a
as lifted from the
fashionable West

ch 28, 1900, was
NG DETECTIVE

moonlit and windy. All during its early
hours J. A. Clayton, elderly watchman
at the Standard Oil company plant, 11th
avenue and 14th street, was weighted by
a premonition of impending danger. He
tried vainly to shake off his fears.

Clayton glanced at the wall clock and
saw that it was 10 o’clock. He walked to
am open window and listened intently,
but he heard only the sighing sound of
the wind. The watchman shook his head,
puzzled by the strange feeling of dread,

After completing his 10 o'clock round
he went into the office of G. T. Wofford,
plant manager, and sank into an easy
chair. Foolish, he mused, for a man to
be afraid of nothing. Why, this night
was no more unusual than a thousand
others he had spent guarding the com-
pany’s property.

His thoughts were shattered with the
suddenness of a lightning bolt. He leaped
from the chair as the’ front door swung
open with a splintering crash.  -

Through the forced door streamed a
line of men, Their unmasked faces were
grimly cruel. All were gloved and armed
with pistols. 7 ,

Instinctively Clayton recoiled into a
darkened corner of the office. He reached

ADVENTURES

Amid the roar of dynamite and gunfire a A
phantom gang stalked the. South, killing - ee
and looting with savage recklessness. But
clever detective work smashed the mob
and jailed two brutal slayers.

With a wooden key patiently carved in his prison cell, Frank Duncan opened
the old-fashioned lock shown above and. completed a daring jailbreak that
terrorized the South, Below, Frank Miller, Duncan’s colleague in crime,
calmly addresses spectators a few minutes before he is hanged.


for the gun at his hip but before he could draw it the butt of a
pistol crashed against his head. He ’fell face downward on the
floor, unable to see the assailant who stood over him menacingly.

“So you want to fight!” the man snarled. “All right, we'll
give you all you want!”

He kicked Clayton’s head savagely, drawing a trickle of blood
from the temple. Another of the grim intruders advanced
quickly, took the watchman’s pistol from its holster and grated:

“Tl give him some real fun !”

He calmly leveled his pistol at Clayton’s feet and pulled the
trigger. The watchman groaned as a bullet tore into his left ankle.
The man who stood over Clayton barked an order. :

“That’s enough. I'll watch this bird ! You fellows get busy !”

Others of the grim band turned from the fallen watchman and

Former Jefferson count
deputy Charles Schwen

right, inspects the grim
ropes which ended the
careers of the leaders of
the phantom gang which
terrorized the South more
than 30 years ago. The
ropes are still displayed in
a Birmingham business

establishment.

clustered about the wall safe. Working with the easy speed of
experts they blasted the door open and hurriedly rifled the com-
partments, One of them counted a roll of currency and wheeled
with an angry snarl to the dazed Clayton,

Bh a the hell!” he demanded. “Where's the rest of the
cash ?’

The watchman answered weakly, “You have all the money.”

“T ought to kill you,” came the clipped reply, “and I would
kill you for just one more cent !”

He turned to his companions, disappointment clouding his
face. ;

“There’s only $330 in the damned safe,” he told them, Let's
blast the place to bits!”

The man standing over the watchman snarled, “Don’t be a
fool. Let’s get going and crack some other place!”

Apparently forgetting the bleeding Clayton the group walked
swiftly through the door and disappeared into the night.

When their footsteps had faded, the wounded watchman
dragged himself to a telephone and frantically called police.
Talking to Captain William Weir he said that he thought there
were about eight men in the gang. The attack had been so sud-
den that he was unable to obtain accurate descriptions.

But Weir knew that the menace—the mystery men whom
detectives had sought for weeks—had struck again. The dreaded
Phantom Gang had added another victim to a list that was
growing to staggering proportions.

For days detectives had mingled with motley underworld
characters, vainly seeking some clue to the gang that looted
brazenly and vanished. They found not a single lead. Alarmed
business men, demanding police protection that a small force

© enna

was unable to s
The placards re
USE NO D'
Weir turned :
report and rush:
ace man-hunter
went into the r
for the 11 p.m. «
“Men,” he t
has just robbed
these thugs or t:
a check on all s
take no chances
Patrolman Ja
seriously. Tall
only a-short ti:
make a good re.
Less than tw:
along 19th strec
George W. Kiri
seeking wanted
The officers :
them hurriedly
Third avenue a:
pair entered the
“T’ve been po
“but I never sav
hurry. Suppose
The new poli:
at the doorway.

Lett te ae

~
we
uy Fe

2

NN teen

+


three other men, All stood at the bar,
brimming whisky glasses in their hands,
Adams noticed that they were watching
him closely.

The two men he had followed suddenly .

gulped down their whiskys and hurried
out a side door opening on Third avenue.

Adams rushed to rejoin Kirkley.

“Something fishy about those two,” he
said. “Let’s take ’em in!”

The veteran promptly agreed and hur-
ried with his young partner after the re-
treating strangers. They soon overtook
them. .
“Pull up!” Kirkley ordered. ‘What's
the big rush?”

The two strangers halted and smiled
disarmingly. One of them was young,
blond and slight. The other was older,
also blond and stockily built.

The older man laughed.

“Oh, we're just seeing the town,” he
said, and the officers noted that he spoke
with a decided foreign accent. “I’m an
engineer on the Atlanta Great Southern
Railroad. This fellow is my fireman.”

Kirkley studied them closely. '

“Where do you live?” he asked.

“We're from over in Georgia,” came
the hesitant reply. “We're just stopping
here between runs.”

ADAMS was listening intently and
eying their faces. He had worked
at the Atlanta Great Southern shops be-
fore joining the police force and was
well acquainted with engineers and fire-
men on the road. He had never seen
either of the men there.

He noticed that the larger man was
nervous. His eyes darted from one po-
liceman to the other and he began edging’
away as if about to break into a run.
Adams took his arm,

“TI don’t believe your railroad story,”
he said. “You fellows will have to come
along with us and talk to the captain. If
he thinks you’re all right you'll be free
in a minute.” .

The big man’s face reddened, but he
smiled again.

“Sure,” he replied, “we'll take in the
police station on our sight-seeing tour.’

The four started toward headquarters
a short distance away. Kirkley walked
ahead with the younger man, Adams fol-
lowed with the heavily-built suspect.
Adams had his hand of the older pris-
oner’s arm, who was laughingly relating
a joke to the officer. The quartet reached
Third avenue and 20th street.

Suddenly, with a speed that belied his
stout build, the stocky man wrenched
away from Adams. The smile was gone
from his thin lips, the joke left unfinished,

The surprised officer snapped, “If you
run, I'll shoot !”

The reply was deadly cold: ‘Hell, I’m
not a runner !”

In the bulky man’s right hand gleamed
a .38 caliber pistol. He stood less than
ten feet from the officer, legs spread, head
lowered.

Adams did not hesitate. He went for
his gun, It was a gallant gesture but the
odds were too heavy. An orange flash
burst from the suspect’s pistol, then two

44

The granite monument shown in the
pacnere at the top was erected in Oak

ill cemetery by the Birmingham
— department in memory of

atrolmen George W. Kirkley and
James W. Adams, killed in an heroic
gun battle with leaders of the mystery
gang. Adams, circle above, and Kirk-
ley were later avenged by courageous
fellow officers, one of whom, Detective

Bodeker, is shown at right.

STARTLING DETECTIVE

er

others follow:
recruit police:
and fell heavil:
No sooner
Kirkley whirk
cut down by
younger suspx
pled on the si

Adams wa
streamed fron
pavement, but
a desperate e:
and emptied |
But he was +
shots went w:
ammunition
again.

Crowds hac
first rattle of s
them, driving
heavy gunma
down 20th s
smaller comp:
nue, cut into :

Adanis and
blood-flecked
pital, but the
of consciousn
give little infc
Adams could
- “An enrage:
a search, co:
haunts durin;
but no trace \

Police Chi
convinced tl
Adanis and K
police depart:
of the killers
mystery gan
Disheroon w:
hunt.

On the fi
gained mom
every known
score of sus;
none who fi
Employes at
tioned closely
never seen |
entered the s:

[Cc


While the noose was being adjusted
Miller asked to have his collar and tle
removed, ag It kept the rope from fitting
closely. This was done by Father O'Rell- |
ly. The black cap was pulled down. Mil- |
ler tried to get down upon his knees to |

. i ah aadiy ee aa Ve ee ee 1. utter a brief prayer, but could not kneel,
errs hin ah arnt | lowing to the fact that his feet were tled
ome one cried out: so the last prayer was muttered as he
“Who saved Clayton's life?” stood upon the trap. The signal was F)
| “tT did” Miller replied. given to Sheriff Burgin, who pulled the
Clayton fs the Standard O11 Company's trigger, and the figure plunged down- «
watchman who was assaulted the night ward. His neck was broken. The bady
that comnany's sefe was robhed, two will be buried tomorrow afternoow at the ¥
hours before the murder of: Pollcemen Southside cemétery. It is said that Miller
Kirklev and Adams. had no relatives in this country.
Solicitor H, P. Heflin oy et the prisoner Story of Miller’s Crime. |
eine the. Riiae: ehamcnie en ables Frank Miller, alias John Manning, alias John
ine oy! Hendricks, alias ‘‘Dutch Henry,"’ was known
nhinet statement about it was true, sald | in almost all of the police departments of the
. ‘ Y ‘larger cities of the United States, if! not by
Heflin asked if Duncan, Miller's alleged actual experience, then by reputation, He
pal, who ts under a life sentence, was was noted as a safe blower and all-around,
there. , crook and as early as 1892 had his) picture |
“He was not.” sald Miller. “New York in Grannan’s detective bureau gallery tn Cin- .
Harry was the man with me. Duncan cinnatl, being described therein as a profes- |
was not.” You are hanging an innocent stonal safe blower.
man.” ig The crime for which Miller was hanged today |
Milles was asked tf he know who shot was murder, committed in Birmingham be-
Watchman Clayton. He replied he did pete the ec se Sig Tor gil cask —s
not. on. e morning oO arc . is ;
Praver was offered by, Father Muerrer, district was invaded by @ gang of safe blowers ~
and Miller stood with bowed head. Then and one by one postoffices in the vicinity and
he called Solicitor Heflin, saying: iby : re alee ig — were burglar-
“You see my condition, that I am cool a er eT ee vine aun seek 40 ag
and know what I am talking about. I oip obelagh eprendllesg |
Ane t tht that you will know doing the work and the operations were identi-
be ye i nage a ae s 3 ng jong I cal in each tnstance, sHowing that a well or-
that I know w at am saying when ganized gang was operating. Efforts were set |
say that Duncan was not there. Dun- on foot to capture the safe blowers, On the
can is innocent and you should have mercy night of March 27th the police department in
on him and not hang him.” Birmingham received information that the |
The condemned man asked for a drink night watchman, J. O. Clayton, at the office |
of water. His hands were fastened be- of the Standard Ot! Company, located in the
hind him, and Father O’Rellly — ne extreme er eet, dae ea yp had
cup to his Ips while he drank. ather been assau and shot, and after being gagged
O'Reilly read from a scripture book, and the big safe in the office had been blown open
Miller listened coolly until'its conclusion, watt age ie: td TT omen “ counter |
r) g > n. When able sum oO oney. , cer in e de.
when he: Keked 278 ness ced M11! partment was notified to be on the lookout
the sheriff mounted the ga lows. ller . -‘Bhortly before | o'clock, and but a few ia
shook hands with him and_ told him | after the safe robbery, Officers J. W. Adams
goodby. A brother of Officer Adams walk- and George W. Kirkley, two of the bravest
erat Meters a shook hands with | and hardest working snamabers of the polloe ,
er. er sald. department, met two suspicious. meh on_ the
“T hope now that you do not think I | sroat ‘These men wer pliowed several, diocks
killed your brother.” | } nd when halted ahow ‘Bd fear whatevever, |


ere

They replied to the off

{cera, one claiming to

inning
be an engineer on one of the railroads ru

ather saying he
oe sichrggc oe ie ie first adele alae
pgetey > altos the men to & thelr way, ee.
oar He the questions put to them so ne
santa: od with such composure. ateg
tue * neclaed to escort pe ne ioral

t OU

vty a. ak rea awe offered, tne
Tatect he officers >
eee at Ad a acai were placed i
es a Miller walked with Officer eile oe
ng want wehife his companion, whom the ie
- ripe {gs Frank Duncan. and who was #en-
cone a lite in the penitentiary. na
shart dintane® behind with Officer Kirkley.

| tenced to dfe {n the penitentiary, walked A
| short distance behind with Officer Kirkley, The
two couplea walked prebably a block when all

of a sudden the two men under suspicion com-
menced firing on the two officers, One of the
officers fell Immediately, but he managed to
get up again. The two men broke away from
the officers and ran in opposite directions, It
Beema that both officers cammenced firing at
one of the men, but they did not hit him and
both got away. The officers were both shot.
They wero sent to the hospital and there dled
from thelr wounds, ;

Aa soon as the shooting hecame known great
excitement existed and telegrams were sent
out In all directions concerning the two men,
& good description being given,

Arrest, Trial and Conviction.

Frank Phillips, spectal agent for the Tennes-
see Coal, Iron and Railroad Company, tn going
to Anniston the same morning of the shooting,
noticed two suspicious looking men wet on
the train a short distance from the city and
go into a water closet, He wired to Chief of
Police C. W. Austin, of Birmingham, concern-
ing this Incident, and a telegram was hastily
sent to Anniston. There the two men were ap-
prehended as they were getting on a train en
route to Rome, Ga,, and Chattanooga. The
two men proved to be Miller and a younger
man named Tom Fay. They were brought
back from Anniston. During the next day the
detective force of Birmingham got hold of a
man who claimed to be @ member of the notoa-
rious gang of safe blowers and sald to he
known as ‘‘Sheeney Bugs.’" He made a whole
confession and tipped off the meeting place, a
cheap boarding house in Chattanooga. Thither
Detectives Bodeker and Disheroon hurried and
with the aasistance of the Chattanooga police
surrounded a large number cf men tn one of
the up-stairs rooma tn the boarding house. The
ynen were taken by surprise and three of them
were brought back to Birmingham. It was
suspected by the officers that Duncan was the
man who was with Miller when the shooting
of the officers occurred. Kirklay had died in
the meantime and Adams was sinking rapidly,
Requisition papers were got out by special
messengers and the men finally brought to
Birmingham. The men were carried to the
hospital where Adams, dying, was Propped up
In bed, Miller and Duncan were kandcuffed
together and carried into the dying man's
room and there he positively identified them
both.

The trial occurred In May, 1900, Miller and
Duncan both being charged with the killing af
Adams, the first as the principal and the nec -
ond as accessory thereto. Miller did not deny
that he was with the officers when the shoot-
ing took place, but stated that the other man
was one known as ‘‘New York Harry."” who
has not been apprehended, and that ‘‘Harry"’
did the actual killing,, .He exonerated ‘Duncan
entirely. But the evidence was. trong and
both ‘men w convicted, .Miller to hang and
Duncan for life tn the penitentiary, —


tne

tenet « pe ttt sp gpl many amen a Se CN vastness nmin
” ~

Joon we nape hemes pabirieg kana op tare PEACE A LOA RC Ae AE YE AGI NE

' Ata y OL. XV SNCS Sa a oars eee : am

cee a ae

ELERNOON, NOY EM]

anes nen nrc —

on

ener Lave ent Specs ee een oe peace

_TRANK DUNCAN PAID THE PENALTY
am OF OFFICER’ KIRKLLY)

TRGCTRC OA AT
| stam) TA

Mee 2,

ee

QoSSIRLE

+

| Frank Duncan, Se ited at ibe gure

> cabecnanenaetanied

MATINEE
WITNES

Pala <n Pen
tiGambler S

ef the:
“fetar

yon
sate: wer?
pots FY

: éer aft Potties Officer: Birkieg= wad. Ann:
ented jn the yard of rhe county jolt
today. The deop Poll uc t1-34 and Rt
gal; 48 £2 9 Spot bel ena aachaliy® ob
; “pounced deat. His nev ik had heated

oe Prokea, . 0):

ithe bady wae ‘baheequetitiy yemoved |

-¢o the undertaking ¢rtebUehmedt at ye?
Rage Loy. Ty wilh &e taken, ta Rash i:
tan, Obia, the hame of De Bees % Rad ae
gents, fot tater ment, © +h

Dancan tes his. dead bravely. ye! Vig
 gald he waa fnutent of pakrder Gori cr
knew. it, the off ate, a es had ‘*eorket?
homp the caac Roew, = "gad he “Hetioted | .
“the people of Birmingham aon tr! x
Ha. died with “a: Sasser Pe
“May. Tind forgive we Tor oehal.
done. ohne eyled out as
Was: araxn Ket ye eA

i nest: Betfacd, . avert The eineitios
tnar fy walg to
LA “Riga ter of ercbhab 2 tel ase, Fergie
i killecto:

“The alien. ear * pontatned Tri ‘a
(lee teh PWN Y PH MES POR, erery. * sie
feof whet ean. Reine or est teh wi} ayn
Soyptal, were take out ine a yt oe

Lhe pelnte: is Rs

as ros red.

3 tAmoue fhe, tof are *
+Perkins sot the Pennky
hate Yo Jatepet betere Be. \otlixtone fi
i} Exel a token: are, and: eg

thing i having ti eee

tog or
4 her, teat tiene f Day binky on
eg ae anton wath taht pha ity

aay Baty 3 home | O07.
ret

ta death > and Meesia: Joka howe. ‘
and Wiitem Ht. ‘Jeuien, pions tn tac: “lean Be
wa <2 bmn ea haahiere APs 5 he
be reg se ag
bar THE CLOSING HOURS ©
“4 FRAN rarity
vs Freak ‘fosean prened hla: Leet cies
“py “earth, quistiy. tn, Ged bariy part et,
Ethe aight be pA with wiaiting SORES:
ir Se ie a

bE ci sbagtinie’ for the tnatch tq the galtows
separ, Ureetny Arey Lowen handed
-. Rot ie: Duncan pet

ARLEM, Monto Neve Tasch
P prairie, fire }ad teen Fase Tot. Fig
Tat dere forty \wtox north 2
2 wnt ta, RD, rein’ “Terrety: ARN
at Carved wh erezivg 6
wept ere acd ie

“bes

‘ deati betwen, tae rent
nines. ae ide ‘

cabot Et She
NTS COMPLETED
PAN. ERO cowone
ash saneeoreg 3 ‘pie age

Maren to Ue Cation

+ Norhern Obi LRaCC RL Fa Cerra a ner yhiew

Kava den. cut ah Ded ape reane Jearin;
“pied eC wa
Nig ' Deere thls mere
ee 2 Nelo rick Bot
i etre Tater,

dition. Deters hase down, aont te aya) PROT ‘iepin >
wren Toner ibs ay. ast. bihet Beat  tharaed “witty!
: vg the ya heet cs

pT he trait wns yoRiug aes Atty Lie he peice |
saytses ot ate ak pila a2ay Sy aly EME 7 Che. Baw hie:
: 3 Las Sey pate tres
> yespan x. Bearers: ant, *
ivan Suge) Biern he was
Wiis. tine ot: i

By 2, of

2 poe, Gace Drtber. oF the pale alba fachges Dare te WH BS ‘s Preparatic re aM ree

whose Pilling Puacen. was pedtenced oy ‘ Ag The eon ek BE ple Ken ae
the siecyin of (be enart boas: lf

‘at Roche:


RE ESP A

ors

DUNCAN, hanged Birmingham, AL, 11-25-1904; and MILLER,
», AL, 6-28-1901,

ww FOO -- Ow GOO OF SVGOSSETSECSECO- Eraerwe rere
oe NIT

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a ae arr

re Sie bat)

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oe. ats

QAPra eg

rae are

ea

mingham

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" = 7 * TRIG Lis - : ; Ree cueet aye * : Ot PS

ea

Let oe yoy phe ay ee 3
pee ra sa ea
ie alt Bt Oa a

‘Dazed Condition,

HE THUS TO. SPECTHTOR

Calling for Water, He Asks the
Priests To Remove His Necktie

and Collar Before the
Trap Is Sprung by.

Sheriff.

Birmingham, Ala., June 28.—(Special.)—
Frank Miiler. a safe robber and the mur-

jderer of Policeman J. W. Adams, was

hanged at 10:55 o'clock this morning, and
Alonzo.Williams, a negro convict, who

-|murdered Bob Callahan, a fellow prisoner,
“jat Pratt mines penitentiary, was hanged

@ -@- © 0 © +0, © 0 @ <0: @ -0- © -0-@-0- 0: 0G 0 OOO

) @- @ -@ @ -0- @ -0 @ -0- @ &- @ -& @ -& @-0- @-0- @-0- @-0-O -0-@ O-0- @-0- @-0-G-0-@

FRANK MILLER,

Who Was Hanged Yesterday at
Birmingham,

OO 0a Ma. Mia. Mn mn em - m ~-

Safe Rabher Gues to Death in

Sg om om rin ew

SS SOS OS'S FESS eye gegnsw

-

at 11:58 a. m. here todey. Interest cen-
tered in the hanging of Miller.

Miller spent a restless night. Early in
the morning he became angry because
one of the guards stationed himself in-
side of the cell. Miler did not Hke this
and dashed a cup of water‘in the guard's
face and then struck him with his fists.
Miller ate nothing for breakfast except a

raw tomato. He marched to the gallows |

at 10:30 o’clock, escorted by Sheriff Mor-

gan and several deputies, followed by two |
Fatherg O'Reilly and |

Catholic priests,
Muerrer.. Three hundred people had been

admitted to the jafl vard to witness the |
execution. The prisoner mounted the |
steps and faced the ercwd before him. |
His march to the death trap was in |

front of a double row of polfeemen, prac-
tieally the entire police force not on
active duty being present. As he stood
upon the gallows Miller looked at it cu-
rfously, examining the rope and beam
above, to which it was attached. Father
Muerrer read from a prayer book. Miller
raised his wotce and asked:

“Is there any one who would like to
esk me any questions?”

¢
Qawma ann anwtad ares ‘3


2 A apt ay

ao Nats Py SP Gen SR

ys

A

~ THh BURMINGH AM? NEWS, BIRMINGHAN, ALAS FRIDAY, xov MBE Rw 1

ve ~ pe Yo Fate Bgck ee Keo ly nonin eo tele M Sth oe 9 Brat aw! ive a ee Se end ~ degen 8 eheoiden hs 5 tow soot a8 ee
aes ; mio ae caren gy Se fae say pee me aie” ae ae eset eer Scteec ngewe — ceiver shed ea
a De
jececeenertoeageverresrerececcs tees wer Which {| ae
Ae fate “ tone

Story. of the Crime for Which
a “Frank ‘Duncan - Was. Nanged 3,

AV JOHN A SPARROW ts ai
avcceacecteecegseasserstnattemesseeeeens en |

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Peidsi. wt te in} of Mackie. ioe ys ay text Risk: the Pte faite
Fraix Dwitan. Ancraped,

Teoh wottire. h way
2S on at pity tte aus Fear Uo ete spats Sh era :
rawr. Rule wat tat ek: PAKS Saye ADT amg ES ay Ne ebROR eR 8 Da
SY Fanig at The Bedale OY Sats th, Sek ae Be ae Resists Pevteleee)
Feds * iB eres ety ai ‘Avansad a $i As tats ays aS to eS aketsiod: oe ee aa
= Sex eine ieee kad Deen »! oe wine Oe gic! 3! wat 4 A EAP SR Pewlgiter te;
we iow argh Rt eee + es a er Spot cet 7 cates rene pg ie tne ma es
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piamertalrers mahacpe? Nipator ssf oe Ae iy ro Pat tay
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“elt hie Ow yi “ee wera ek at Sayan te Me THY
Sep A tk Sher LNs ete, me has eee ELD to PE. Bie ae, MAY ead 3 3
Lane & Daratachem, aus sons enee 7 it ety oe ed tia? 4 a.
a Re Pas Tei Say State LOR tHE Acr etna fs,
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aE ante er Lvitaione iat Bie cil 4s pip ea


®

bo bat)

low We Reproduce An Account of the Hanging of Rev. Henry

yy

a"
; 4

eer ee ude Vee
bis Ra hota wy

> *
ji 5
i

4 is
teal a oes

im aw th :
G pF) my

ete. |

Gn Friday, February 21st, 1850.

At the request of a number of read-
crs we reproduce below an acount fo
the hanging and statement of Rev.
Henry Duncan, which appeared in a
copy of the Star of February 26 1890.
A grent many of our people remember
the awful crime for which he paid the
death penalty in this city on Friday,
2lst, 1890. The article in full is as
follows:

“The crime for which Henry Dun-
can was hanged on Friday last, was
perhaps one of the most heinous ever
recorded in the annals of Alsbama’s
history. The history of which has
been published several times before
in this paper, and at this: time we
deem it necessary to republish it.

The large crowd that was present
to witness the execution and to hear

ring § , Henry Duncan, J
the dying statements of Henry | me with the same

was variousl} estimated at from 5,-
000 to 10,900 people. Sheriff Byrd
and Jailor Barnes went to the jail
bout 12 o'clock, had the doomed man
shaved and dressed and everything
made ready for the execution. He
was conveyed from the county jail to
the gallows in a carriage drawn Me
a pair of fine horses, in company wit

the Sheriff. Clerk, Jailor and guards,
while on this very solemn journey

ke smceked a cigar, and recognizing
soveral of his friends, spoke to them
very pleasantly. Upon arriving at
the gallows, he entered, the hand cuffs
were removed, he was seated and talk-
-d for a few minutes with those on

‘he inside, Ato feven minutes past
Hoe ae ork, he a oented the gallows,
4 com ony with Sherff Byrd and
‘ailor | esed the crowd

saes and ade

foll “Wo: ‘le Ladies ond
entlem neo one a Ns T desir to
ake my Just she ch to a ce oo cera-

om in this world, aud in doin so, ]
“y not want to be misurterstodd, for
ft

hat] s vi today wii pe the trath, and
Pocall von God to witness thes fact.
Standing ov.r this trap of doa 1

day, does not excite Henry uncan. |

The Saviour gave up his life, and all
must go the same road, old and young
black and white, I am not Jaboring
under any excitement, but stand here
today and speak the truth as a con-
demned man. Jam resiyned to my fate
lacknowledze my part of the horri-
ble crime, other partics though ought
to stand by my side. Let me go back

tu my youth, and follow my, life up|the understanding between

to now. My father died in the con-
federate service, fighting: for his
country, and his youngest son stands
upon the gallows today. I was raised
an orphan boy, by a prayerful moth-
er, and always found her words to. be
true. I have know nwhat it was to be
hungry and bare of clothes, but it was
tke best my poor mother could do. I
have known what it was to have the
kicks and scorns of the werld all my
life, but have struggled through by
the help of God. 1 attached myself
to the Freewill Baptist church, six
years ago, was baptised by Rev. J. C.
Hendley, and was licensed to preach

cw, A

i
\

tom ‘ Hy | (\ oe 3 3
lay wa Ld td t W7 eh.

ve q é. = i
% cor) Ҥ
‘a Qare” rf i

‘ ton
Would i

a short time afterwards, and look
where I stand today, all no account of
a flattering girl. I was working for
50 cents a day, for John Q. Baldree,
the father of the young lady, when
she first began to make love to me.
I was honestly earning bread for my
wife and helpless children. I came
from the field one day, hot and tired,
and in her fathers own kitchen, I said
to her, ‘what does poor people want
to Jive for anyhow.” She replied
that she wanted to live just to look
at some folks and I asked her who she
wanted to look at, and she said, “you
for one.” From that very time, the
evil commenced. I at first resisted
it, but her influence overbalanced me
and I began to meet Ker on half way
grounds. I am now ready to tell the
whole thing. It began to grow strong-
er. I would meet her in different
places, in her father’s kitchen, and at
all times and on all occasions, she met
sweet flattering
smile, and one morning iu her father's
kitchen, she sat on this very knee,
threw her arms around my neck and
says, ‘Henry, I love you more than I
ean tell.” otice the inducements
from the flattering pirl. She SAYS,
“Henry, if vour wife was out of the
way, and To owas your wife, I would
meet you at the grate with a sweet
emile of welcome on my face,” and
people, Tem co: afraid to stand here
over this th tenp. and tell the truth

moe te sretom. Godan ponee. J
feel focan that DT owill meet Dolly, iy
mur ’ored site is Heaven, and pet her
Forpicrtsus DP have ton my cause
fa ty nad may the other gulity par-
Lies heeosaree Ching, and wet for-
megs for this awful sin. People,
the cxistence of love did not stop
there. I would lay in her father’s

house, in a little shea room in the pi-
azca, and this flattering girl would
come to my bed side, kiss me, hug me,
and tell me to get up, and come into
the kitchen where she was cooking
breakfast. I appeal to you people to
look at the inducements she offered
me, and the circumstances under which
I was placed.
parties, and John Q. Baldree and Geor-
gia Baldree are the others implicated
in the crime. I stand here today over

the death trap, for a crime of which

'IT am the only one convicted, the other

parties stand innocent in the eyes of
the law, and I pray God ‘that they
may stand justified as I do. Now to
1s, John
|Q. Baldree was the zirst m: : to men-
‘tion quitting my wife to mc, he told
me to quit her. I told him I would
not leave my little children and he
then told me to give her a dose ofmedi-
cine and get her out of the way, and
says, “If you will do it I will go to
Newton tomorow and get you a bottle
of morphine, and it wil be understood
that it is to give to your mother for
the neuralgia.” He furnished the
money, for I never had a nickle, and
bought me the morphine, gave it to
me, and J earied it in my pocket for
several days, and could not have the
heart to give it to Dolly. my wife. It

6s Ah ON ij

Naar Lar hay Ge ta tis
Sotho Alabama fete ba
Duncan, and the Pathetic Address He Ma

From The “Ozark Ste:

~ now,

Iam one of the guilty |

y

i Lit

WOT, Albboo ley Ata

*
was on understanding I was to pet
my wife out of the way, and me snd
Georgia marry .He told me. in
Georgia's presence how much to give
her, but I could not do it. I gave it to
Georgia one morning and told her it

. was her business, and she could do it

if she wished. She went to my house,
prepared the medicine for my wife,
and told her it would make her mis-
carry, She came on back through the
field where I was plowing and told
me what she had done, and told me
Dolly said for me to go home, butif
she was me she wouldn't do it. After
I cat supper, I was sitting in Baldree's
piazza talking to him, and alls of a
sudden I got restless and could stay
there no longer. I left and went home
and found my wife lying on the bed
very sick and told me that she eould
Mreathe hoody, and felt like reoes

‘ere tied uiound her. I waited on
her patientiy, for dear people, Twas
sorry it had been tone pad if it eoutd
have been catled bach Pow oukd theo
heer the happiest p hon the word,
for L had a dvar good wifes and ste

loved me tou. To sit

up with her al!
meht by myself, aad 3

“TNO OVCFE ything

Peconld fee her bout ne recente
Wife's) aerth PP at arom God
trowithes. at. Ghac ] am tellipe the

solemn truth, I was sick of the aw-
ful crime and if 1 could have cajled
it back all the fair damsele in Ala
bama could not have influenced me to
have allowed sucha thing done. Stand-

_ing over this death trap as I am, J

have a hope of meeting my God in
peace. I have given up my mother,
brother, sister and friends, without
great trouble, but my only dread js
to leave my three little boys to Jead
the orphan’s road as I have done all

through life, all on account of a fair

damsel, J] know my children are ijn
good hands, they are with Mr. Jry
Ammons, a cousin of mine, who lives
near Echo, but you know people, they
are dear to me. They came to the
jail to see me last week, and the old-
.est remembered the times when he
knelt around. the family altar in pray-
er, and asked me if I ever prayed
Oh, my God! how hard it is to
give them up. I always had fum'ly
prayer at my house when at home,

I am.giving away in my voice but
am not the in least excited. JI tould
.stand here and talk three hours afd
‘never tire, and tell of the horrible
crime that I have got to:sufer for to-
day. I was raised near Echo in this
county, and lived hapily with my wife
2 ea to the time met this young
ady, and had it not ben for Mr. Buai-
dree and his daughter ‘ould now be
at home with my family. Young peo-
ple take warning at me, don't ‘let a
flattering girl lead you astray and
damn your soul, but live a christian
life, sing a christian song, talk ua
christian talk, and die a enhristian
death. Prepare to meet God, and
don't sink down into a yawning hell. i
have forgiven everybody, I die with
no malice in my heart, and if John Q.
Raldre is her today, I would love to
shake his hand, an dtell him J have
nothing against him. I feel that God
has forgiven all of my sins, I expect
to meet Doll yvsoon, I exnect to know
her agai nin heaven, where enemies
can never separate us. I never thought
I would die this way, but it seems that
fate has been against me. (Request

hoa crane eotie tools to be fodne
(othe jah) Mr Bud Petham, who
in thé cape with me, wrote a note

Wh. Drather Cloude to bring him

ve files, a cold chisel, a dirk, and

Of rope, and to briny them on
Ihy omoming hefore day. He

vht them and boas } hia in
wing them in throuvh the window,

in ont the time the search for the
was made ] had some of them in

. shoes. Bud had some of them in
is shoes and Futaw Parnell some in
hoy shoes. We intended to anche an

wpe if possible, but there © vere
vuerds around the jail the other pris-

rs decided to wait until after my
eution, the guards would | be re-
my ved, and they would have a better
chance, and remember, dear people.
thet I have told solemn truths about
is matter. I do not want to be mis-
reoresened, I do love this girl today,
1¢ if I had taken the advice of my
‘ile and mother I would not have been
nore today, so people take a warning
“' me and don’t let a flattering girl
1! Tuence ‘you.

Just here Mr. W. H. ©&!mmons prot
pesed a contribution fcr his litts|
cluldren and in a very rt time re}
borse of one hunc: Mare wes F
racsed. During the ey o- c! Mr. Dun |
eon stood upon the ¢: 4s smokire!
i cigar, and recognizi:.,: sume of his |
boyhod friends in thee rowd, epoke i
them very pleasantly, > : displayin
tie least excitement. S tne one in the
crowd made a propcsi:i:r for all wh

ere in favor of sav, his neck >
i) ld up their hands. siultaneously
thousands of hands went up, ane
Sheriff Byrd and the prisoner seeing «
i: Imminent danger of a stampede, -
suelled it at once, the dcomed mana: |
sisting him in doing so. He was in!
iormed that he had hut ten minutes tc
‘ve, and that he must harry througa :
lie said, I do thank this people todar
‘or the kind contribution to my pocr
lttle children, and it is a consolaticr
{> me to know that in my last hour]
have friends and sympathizers. 4
‘vant this money put in the hands of
(lc probate judge. I want my attor-
hey, C. D. Carmichael, and the judg
to se that it is properly handled 5:
that my children mzr get the benefi!
of it. I also desire to return thanks -
to the sheriff and jailor for thei
kindness to me since my confinement
ir Jaal, for they have done al they cou
for me. My ettorneys, Carmichae.
f:mons ond Borders have worked fe:
tre manfully, without meney toc, a
] desire to thank them in my last >
rients. Thev are honorable men 2’
hove done all they could for mt
riust leave you-all now; my rime b
come; so, one and all. gods hwe. oF

x
.

<

The curtain wae ors
] ple any voi ae
began telling bim
them all odiew wat

rds aint meceene

! PSE" + f the
in] nergy’

' Vator if
Hee Wher tie
eam te det torr

te d Mr. Bs. i

inf he wae yn ¢

Vioui8

Pepe
Jo Wes
: Tisast

Sy

uves,

d to

Choon cuunty, Fh:

inday lac:

«

ye 3
7

8

STORY OF Te

‘etoeuter Adauis’

iDe gauivwe

a deeper

—_ anes a IS
Vv

OLUME X1\---NUMBER 93.

LILMINGHAM, ALA. FRIDAY APTERNO

er rte *,
. way j

ios as ited eae EN Oe RR ie Rn

. {
ae
S

MURDERERS.

Sprung at 10:55 O'clock and
Was Soon Ext@net.

= =
t

RNITY

_ mu us WNORNCE. TO THE (AST. BREA

‘Baid He Did Not Shoot Adams; Neither Was Duncan)
}

Guilty of Crime Charged to Him. Wad His

Frank Miller i deni.

AT WO o'clAck. this niorning the

trap Was sprubg bys Sbbrim ALdiew BW,
Burgai and bis seul Wes dauuched into
elertity:. as

Miler Gied watbe © He rotested his
innocence tu Use lust add with cul
deidbezation todvsodcuer Hy dshedso
all eClers thut brali lpia was ais

“Whecent wan, Uiatl be was net present

weeutired aud laut
Pdu with tue denty
Heb iikieys) 6

amiuarciosd to Ue
Kaiivwe ab lw YU ecck promptly.) tic
was takenw [tui bis cell in the pies
epee of Steril! Bucgia aiid several uep
Ules abd was eecurted: Gul iuly tie

whell the #8
he bad petuiug:

Tie coudeuiued

yard aul tothe xadows beiween Dey t

Ul) Siete Aliart  Stradtiond and

Dvir.

eg ina manued Fatuer UO Mealy wud) be brought up short as the rope swung |

Peteer Muees, Whe were Orel Gpou
WALKED. WITH FIRM STEP.
As he wulked to the gucdows Miller

“went witha prin tral and he foomed t

opa.iy UpoD Ube Ciiious faces about

him. He wounted the sieps easily anu!

turned. upow the gadows and fac!
the trowd before bin His watch to
the gailows wae lu front of a dwubie
row of polleemes, practhall), the
whole city police force being present

As be stood upon the gabuwn Miner
louked at Mt edrionsiy, eanniniog the
rope and the bean: above ty which it
was altactied, “Iben te carved ap to

tbe court house windows, which were

packed with eager faces, and then hie
eyen wandered uguin (6 the faces Las
peath Lim Pa Sk
MILLER B® Fikhsr WORDS.

Father. Muerer read frou, as prayer
buvk whieh be carried la bis bawia
abd when the readiig was concluded
there was a pause. Miller then raised
bis voice and asked:

“Ie there any one who would Ike to
ask me any queationa ry —

Home one cried wul froin’ the crowd:
“Who saved Ginytor « Jif

“1 id” wae the Grnr reply

Solicttor 10) Po Hetiin weikest up the
he gallows wili> he cwtuend ta

-< »

eee ee yn anemone

Collar, Removed so as to Mahe the
ee - Rope Fit Snugly.

GRE AND. HS. LAST AGH SPENT. ON ER

ope me

onder ned
Doecpeuts
the Omse boul

The feet oof): the wan
were then tled) and
Wille Love adjugted
the neck of Miller’ (While the noose
Wus belog yy atjusteal Mier usked to
have hiss eullar and tre removed, as it
kept the: rope from titting closely.
Pits owas dove by "Father oa Reliy,
The noose was then put ii ptece ata
buh k Was piiled down over
the face, ying forever tbe tight ‘or
day from the vision of the eoudetiied
fitat { ;
After the noosechad been tightenmd
about bis pecx and “the black cap
drawn down over his head, Miller tried
(to get down upon his knees to utter
‘another brief prayer to Gust for mercy,
Hut he coukd net kneel owing to the
fart that tis feet was Ged, so the last
| prayer wae muttered as he stood upon
thé trap. Then the sicnal waa given
‘ty Sheri? Burgin, who pulled the trap

the Gaye

} to fta full lengsd.
‘he physicians — pronvunced

déxd- in just fourteen” minutes
eek was broken. ;
} After: Miller bad) been. pronounced
deud he was cut down and was taken
{in charge by. Gaudin & Loy and car-
tied to thelr” undertaking establisb-
mens om Pwenty-Hret stryet
oto Hie LAST HOTR.

Milter
His

sult which waa to te bis funeral robe
at 8:45 o'clock, .Le was seen. shortly
before this time by County Physician

| Heacock, who. found bim sick. at the

stomach and lu a highly nervous state.
He was given some medicine after
whith be grew more cali and con-
tinued his preparations foc death.
shortly before 10 o'clock Father 0’-
Keily and Futho® Meurer came {ato
hia cell and they were with him up
to the time of hls death
| ‘The death warratt was
“ter just as the priests came ti
laid down wpon his. cot during

jreading of the warraut and had bis:

eyes clomeal mostof the time. At fret
‘he aehed- oot to hear the wariant, say

X

puikht be bevame sick at his stou'a do

‘

Tra ana thle Aid nor seem -to nrrec wth:

: ASSAULTS HIS GUARD.

+

Life jit ortennuerstood the wrerden's bien.

Sherigt:

Miller attired himecif in the black ,

exd to Mi!
lhe!
the

TE

Shee ek
ea

ee jl enacenteecrigs semper! Le mhegemeee 9
SS SS em re

| The extreme reaticesoras on the pare.

ILLER DROPS

Of Miller had béeu growing ag the tore
if Liaverecuiog drew
evetivg bisa towtital
that Le coujd not eat

heater pred
riate Woes #0
Durtig tie

eat

aij was still in this condition tlis
inorning, ‘bis brenklast Kolng -alsconst
untastet ble ate only m siice of te:

tiin

Farly jast night Miller assaulted ane
of bis: guards, Deputy Tomine Wat
den Berry inteuded hating two gumrits
over Mi ferdast pigtt, one on ench wf.
of lis eel! on the outside  (itard Too

ttiones and be wert [pside the ‘cel to
freinain with Miller’ Milier did put
like this and a« dispute arose, the re-
;euit being that Miller dashed a chy:
Of water in Towns face and ther
tstruck. him a giauctng blow with bis
fist Guard Thowpson, who was on the
outaide of the cali, quickis entered abt
Spoke ta Miller? Who became quiet 1

iluent instantly. Later he apologize |
ite Guard Tomlin for bls conduct amt |
pseemed gorry for it :

TOO SICK To) TALK,

A News reporter called upon Miller
Fat S-o'elunk. this moruing and. fount
shim stitl sick. Miller stated tbat '.-
bad bean sick all nightand he begged
to be exehsed fron: talking at the mu

‘tuent, saying that he did not feel Uke ,

t then, dle asked the reporter to eall
tack later ‘The tremendous strain, to-
gether with the yightaf slicknese, bad
wrought havoe with the face of Mil-

ier, The lines were drawn tightly and

itoithe pale fact
HIS OPRAYER BOOK, |
As the News reporter

and pleked up his prayer book,

tis bright eyer glowed from their sun-!
} ken sockets, making a strong contrast.

patised to,
syeak to the guard, Miller sat down *
Ile)

SSSSSSSSSHSSS HEHE SHS HSHSHSH FSHSSHSEHFSHESHSHS SDH FHS SHE HSOSHE SHEESH OHO POHVOS

gianced over it a few moments and, ;

feplacing It upon the table, resoniet
‘is restless walk acros¢ the
ixteel floor,

s:nooth |
If seemed Impossible for!

hiuy to get ide wits sutficlently center. |
edo upon the buuk to read it under |
standingly. {

AN EARLY CALLER,
One of the frat to visit Miller this
morning waa Father BP. A. O'Rells,
of Rt Pani's 3

Catholle church.”
Came immediately after breakfast”
talked with Miller fors#ome time. —
‘had prayer with the condemned man
jand tried to give bim spiritual com-
er eet When he left {t ware with the un-
derstanding that he would return later,
| REFUSED TO SHAVE:

| Yeaterday afternoon Miller was to!
lo trout of tie couuemiu’| and the figure plunged downwant, to! bave revelved a shave and a hair cut;
and a barber was brought to the jail |
fue this purposc, Lut Miller refused toi ye gouth aptil the whole wultiude

be troubled by the barber. ‘He said
that bis beard aud hatr had been al-
lowed to grow thus far and he did not
mind going to his death looking as he
aid. His wishes jo the matter were
respected, it maktug vo difference to
the officials how he looked. ’
- TREMENDOUS CRUWD.

Not since the execnticn of Dick
Hawes in 1800 has public interest In
the death of a criminal been so keen
as In this inatance. For days aod
days Sheriff Burgin base been b-selged
for pawmwes and be has had to turn
some Of his beat friends down, The
jall yard belde only abont two hun.
dred persons and this number of passes
fwere printel! The supply hecame
| quickly exhausted and Iate comer: had
to be refused as there was oo way in
+ which. they conld be accommodated.
| However. the fact that they could not
ate the execotion did not prevent a
tremendous crowd from gathering

about the court house and jail, Soon
after daylight Uhin inorning the crowa lofftcee of the Siandant Off Company,
| Sacre Shei oe Sate tas 2A es Sere ag ee ays SES SE EE

‘tng that-he did not care anything about)

iit but he waa told that it woilhl hare

far Free read je iim aud B® then cond

petitent

ACEROTEN PY TONLE. CALLA

H

,new evideace.
tthem patiently fur three bours, but de
l¢ided mot to interfere, Miller sald this

_JEFFER!

ad

FRANK

$
¢
¢
4
;
;
;
¢
9
¢
;
;
t

+

begun gathering and with each pass
ing hour the throug increased greatiy
in) Size) It became known that the
gslews could be seen from a few of
the windowa th the court house and
mon every available ioch of ryom Was
taken up #@t there windows
ALLEY KEVESOLEAR.
The alley between the Jatl and court

i heuse Was kept clear OF the crowd, a

number of deputies being stationed at
each end for this purpose. During the
execution huudreds stood abeut on the
sidewalke and out in the strevts, un-
able to see a thing of the grim cere
uiony inside. However , thoee who

could see kept those who coulk! not!

see Well posted. Every move madg@ iu
the fall yant wae told by some ob-
supver upd was repeated from mouth

had been toformed thua, while they
could not actually see. those on the
outaide were kept fully posted ani
were, made to ferl that they were A
part of the andieoce.
LAST EFFORT MADF.

Attorney HK. L Leatherwood of this
city and Hon. S!4 Howle of the Orm of
Koox, Bowle & Hlackwen. of Annis
tou, made the last effort to save the
Hfe of Miller yesterday afternoon when
they presented bie case to the Gorer-
nos at Montgomery. Aceonting to Mr.
Leatherwood, they presented dfteen
affidavits and two new witnesses, all
The Woveraor beard

morning that. Mr. Leatherwood had

done his best to save bim and he was

thankful for the seerice rendered: -
THE CRIME

On the night of March 27, Ta), the

pike BMA as rela Pandit oe, Prada ng tallteen teh, Disgns Yee halen iad Ihee den

PHOS OS SHS SO HHSE SSO SSOSCSOOOP OOD

The uotertons sofe robber and Thurderer, 1
ty jan yard

;
t

&

a SUUTTIN pue Tost-Sz-TT ‘ery Sweugururtg peBuey *nyONNd

Mil

{ton
i
bab
er
vv.
or

th

as
ty
ti

at
in
th

"106T ‘9g ounp SeweqeTy ‘weyZututtg peSuey *yue™


is ileal caliente

SL ILL OE SDE ELT TE OGOLY ID EEO ONE SPIO we

18 FORGOTTEN TRAILS

Standing over the trap of death today does not excite Henry Dun-
can. The Savior gave up his life, and ali must go the same road,
old and young, black and white. I am not laboring under any
excitement but stand today and speak as a condemned man. I
am resigned to my life. I acknowledge my part of the horrible
crime, other parties though ought to stand beside me. Let me
go back to my youth and follow my life up to now. My father
died in the Confederate Army, fighting for his country, and his
youngest son stands upon the gallows today. I was raised an
orphan by a prayerful mother and always found her words to be
true. I have known what it was to be hungry and bare of
clothes, but it was the best my mother could do for me. I have
known what it was to have the kicks and scorns of life, but have
struggled through by the help of God.

“T attached myself to the Freewill Baptist Church six years a-
go and was baptised by Rev. J. C. Hendley and was licensed to
preach a short time afterwards, and look where I stand today, all
on the account of a flattering girl. I was working for fifty cents
a day for John Q. Baldree, father of the young lady, when she
first began to make love to me. I was honestly earning bread
for my wife and helpless children. I came from the field one day,
hot and tired, and in her father’s own kitchen I said to her,
‘““What do poor people want to live for anyway?’ and she replied
that she wanted to live just to look at some people. I asked her
who she wanted to look at and she said, ‘‘You for one.”’ From
that very time the devil commenced. I at first resisted it, but her
influence overbalanced me and I began to meet her on halfway
ground. I am ready to tell the whole thing. It began to grow
stronger. I would meet her in different places, in her father’s kit-
chen and at all times she met me with that same sweet flattering
smile, and one morning in her father’s kitchen she sat on this very
knee, threw her arms around my neck and says, ‘“‘Henry, I love
you more than I can tell.’ Notice the inducements from this flat-
tering girl. She says, ‘‘Henry, if your wife was out of the way,
and I was your wife, I would meet you at the gate with a smile
of welcome on my face,”’ and, people, I am not afraid to stand
here today over this death trap and tell the truth in order to
meet my God in peace. ‘

“I feel today that I will meet Dolly, my murdered wife, in
Heaven, and get her forgiveness. I have taken my case to God,

A AsSaAsAhatah AAsAcASba tidal Labebatolatota Laat snalitadsi la aibtety abd Larch lait ahha in telehibe esaR bhatt Sobl divide Sa

STORIES FROM DALE'S PAST 19

and may the other guilty parties do the same thing and get for-
giveness for their awful sin. People, the existence of love did not
stop here. I would lie in her father’s house in a little shed room
on the piazza, and this flattering girl would come to my bedside,
kiss me, hug me and tell me to get up and come in the kitchen
where she was cooking breakfast.

‘*T appeal to you people to look at the inducements she offered
me and the circumstances under which I was placed. I am one
of the guilty parties, and John Q. Baldree and Georgia Baldree

-are the others implicated in the crime. I stand here today over

the death trap for a crime of which I am the only one convicted.
The other parties stand innocent in the eyes of the law, and I
pray God that they may stand justified as I do.

‘‘Nlow as to the understanding between John Q. Baldree and
I, he was the first man to mention quitting my wife. He said,
“If you will do it, I will go to Newton tomorrow and get you 4
bottle of morphine and it’s understood it is to be given your wile
for neuralgia.”” He furnished the money, I never had a nickel,
bought me the morphine, gave it to me, and | carried it in my
pocket several days and could not get the courage or did not have
the heart to give it to Dolly, my wife.

“It was an understanding between me, Baldree and Georgia
to marry. He told me in Georgia’s presence how much of the
morphine to give my wife, but I could not do it. I gave it to
Georgia one morning and told her it was her business and she
could do it if she wished. She went to my house, prepared the
medicine for my wife and told her it would help her neuralgia.
She came back through the field where I was plowing and told
me what she had done, and told me when we would be married.
She also said Dolly said for me to go home, but if she was me
she wouldn’t do it.

“That night after supper I was sitting on Baldree’s piazza
talking to him and all of a sudden I got restless and could stay
no longer. I left and went home and found my wife lying on the
bed very sick. She told me she could hardly breathe and felt like
ropes were tied around her. I waited on her patiently, for dear
people I was sorry it had been done and if I could have called
it back, I would have been the happiest person in the world, for
I had a dear good wife and she loved me too. I sat up with her
all night and did all I could for her. I put no poison in my


16 Sane ea RMS 0 Pe PORGOTTEN TRAILS
ailing wife. The Home Guards did not like this and said that
Bill was a traitor to. his country. Captain Jim Breer’s Home
Guard .decided. to make an example of him. He was to be
hanged. |

While preparatioat were being ade for the hanging, Wesley
Dowling passed and saw what was to happen. He promptly told
the group that there was a better way to punish him. The cut-
throats threatened him and continued their preparations. Just be-
fore the hanging, the bloodthirsty band tied a rope around his
ankles and drove him around like a hog, jerking him to his knees.

James W. Judah was sitting on a log beside the victim when
a man: mained Ardis approached and placed the rope over Bill’s
head.

As Bill neared, his fate, he was asked if he had anything to
say. .He told the bloody group that he would like to pray.
They thought that he wanted to pray for himself, but he prayed
for his murderers. This so stung them that they quickly threw. the
rope over the limb of the post oak tree. and pulled the buggy
from_under him. . He died without having. finished his prayer on
December 3, 1864.

The gallows limb pointed southerly and was so low that his
feet touched the ground while he struggled with the last enemy of
man. George Echols took his crutch and dug a hole under Bill’s
feet so they would hang clear. From that day until now the hole
has been cleaned by some strange hand, seen or unseen. Thou-
sands have personally noted this strange phenomenon. ‘It has been
thought that Wash Reynolds, who sympathized with the doomed
man, kept it cleared as a reminder to those who took part in the
misdeed or sympathized with those_ who. did. Uncle Wash, when

ked, id he wz esponsible { , and. knew_no more about
agit i he iS Ah any a icatec tee ey” iy filled
the hole with trash. Upon their return, they found it cleared.

In 1871 Thomas Fain built a bridge near the site. When it
washed away, John Knight was employed to build another to take
its place sometime in the nineties.

Later A: -E. Roundtree, a ‘prominent citizen living three miles
south of Newton, and his brother, Thomas, were employed to wall
up and cover the new bridge. They pitched their camp under
the same oak tree. Thomas was nervy and not afraid of spooks.
He wanted to make their bed over the hole. His brother felt a

DEE I a IR Ge tee iar ea Aas

STORIES FROM DALE'S PAST 17
bit uneasy and placed the bedding a little to one side. They
watched the hole with a zealous eye. They said it was filled each
night. Upon arising the next morning they discovered the hole
free of trash.

Six men took part in the hanging. All or nearly all had mys-
terious deaths. One was riding along on a still day and was
instantly killed when a limb fell upon him. A mule ran away
with another and killed him. It is said that lightning killed one,
and another of the murderers was found lifeless in a swamp. The
Bible says, ‘‘for all they that take the sword shall perish with the
sword.”’

After the hanging, Josh Morris, Bill Ard, Dave Young, and
James W. Judah took the body down from the tree, and laid it
out in a nearby cotton house. Bill Sketo was buried at Mount
Carmel Church cemetery near Newton.

HANGING OF REV. HENRY DUNCAN

Rev. Henry Duncan was hanged at Ozark on Friday, Feb-
ruary 21, 1890. The crime for which he was hanged was per-
haps one of the most heinous ever recorded in the annals of
Alabama’s history.

The crowd, present to witness the execution and to hear the
dying statement, was variously estimated at from 5,000 to 10,000
people. Sheriff Burt Byrd and Jailor L. R. Barnes went to the
jail about 12 o’clock noon. The doomed man was shaved and
dressed and preparations were made for the execution. He was
conveyed from the jail to the gallows in a carriage drawn by a
pair of fine horses, in company with the jailor, sheriff, clerk and
guards. While on this very solemn journey he smoked a cigar
and, recognizing serveral friends, spoke to them calmly.

Upon arriving he entered the gallows, the hand cuffs were re-
moved, and he was seated and talked a few minutes with those
on the inside. At seven minutes past one o’clock, he ascended
the gallows accompanied by Sheriff Byrd and Jailor Barnes. Look-
ing over the multitude, he addressed them as follows:

‘‘Honorable Gentlemen and Ladies, one and all: I desire
to make my last speech to a congregation in this world, and in so
doing I don’t want you to misunderstand me, for what I say to-
day will be the truth, and I call upon God to witness this fact.


~ta thin

$i

7

bétees and bast. |.

Of postifi.s
& dmog.

eo Dersees 204
SGth and 2b aia

— |copuected with the case,

mi ahoulter an he pend from!

Seiad” ‘ip

SR RTCA, wi

Lamwber
€) SUIS let eve,

5) tie eacape of the safeblowers created

re

if

The mai. e ho ray) up Thint avrenoe
Nwory a light orercont and he stopped
in his flight am be neared Twenty-firtr
street and removed this onet, laying ft
earefoily down open the widewslk. He
then cumtinwed hie Aight At the con
, ber be was aske by a man “what's
going on down there?’ but he did pot
NY crying ‘out, “Qh’ hell ta
} to pay, and and pished >on up the
(avenue. A\ bottle” of nitroglycerine
was found in the pocket of the over
Cont Which accounted for the care tn
jasiug it Aown.
GREAT EXCITEMENT,
“The shooting of. the two officers and

+

/ te Kreatest excitement in the city
}8Tid soon every officer tn Birmingham
Was &n the lookout for amembers of the
kang Refore morning Detectives Bode-
ker and Disheroon, who went to work
Upon the case yer omptty, had a

Prebended a a i sh Sef Wiksces
Hinges,” and he gave the whale gang
away. “Rheeney Buge™ stated that the
eang was composet of Frank Miller.
Alias “Dutch Henry,” or “Big Deateh:"
Frank Duncan ,allas Frank Winters;
Frank Fdwards, alias “Shenaadeah
Red?’ Tom Fay, Jotm D. Weat’ and
“New York Harry,’ alias = “Denver
Harry,” ailas-Tom Dowd, Sheeney
Bugs stated that the gang wae to meet
in a boarding house run. by Duncan's
fatherin-law © jn Chattanooga, and
acting upon this inforpation every
member of the gang wae'caught with
the exception of New York Harry, who
was for a jong time betieved by the
pubic to be a myth. . :

THE CAPTURE,

Frank Miller and > Frack’ Bdwarde
were capiured {n Anniston while en
Tonte to Uhatianooga while Duncan,
Fay and Wost. were. apprehended. at
the boardug house

my partner.”

A SOLEMN OATH.

of this and jthen throw 4
| book over to the h
jelic b upon it, the
j alithe ch

if

.

a Ot
 graphiing
igher walt nad thus

mwnto freedom

PIAIT (DIBCOVPRED.

Wen tbe fact that the® prisouers
Were attempting. their egcarpe became
khown Miller aud Duncan and Weat
had already reached the top of the
lower wall and In’s few momenis they
would bave heen at Hberty. The dis.
Vovery was made by a negro truaty
pabeut the jail, who accidentally: bap

the yard at this opportune tine. He
Mastiiy gave the alarm andthe jai}
was quickly surronaded ty depatica,
while the warden came around jnside,
gun In hand, aad ordered the men back
to Jail,
and were returned to thetr colt’ rery
much crestfalien. One af then hada
revolyer when they were discotered,
dow thie vase data. i
was not known for a loig time. but
finally Miller Atscloned it to a News
reporter. Ho stated that the revolver
Was atcnre) through the «fiice of a
former tomate of the jail. well known
in Birmingham, who te pow under in-
dictment for ser offenses. He waa
formerly a clothing salesman, and wus
captured soine months ago in Boston
after he had duped a number of Nerth-
ern Wholesale merchanta by represent-
ing himself es the buyer of a well
known Biriningbam firm.
A SPECUND ATTEMPT,

Thongh much (isecouraged by the
failure of the first plot, Miller endeny-
ored a second time to secute saws with
which to cut his Wey ‘to freedon, but
he failed iy: this also. At this time
there wee a young man coufined.in the
jaf upon ® minot charge, who agreed
with Miler to have a pair of shoes
geht TH the Jall in: tie name>
ordered the abcess trom (Ciacinaat® and,
hada doenn steel saws placed tn their
soles, The shoe came in due season,
atdrested to the young prisouer, but

arrived the soles were rip.

This solemn oath did more

so con
Miller than any other

waaay etre

as
cumstances developed : to

a
4
‘

fie
At

$xs¢
ae

* larweren, .
4 -

OD:

Hthey were going tot

pened ta come around to that part of)

They relnctantly came down |

‘off and the awe remoted! Miler} ~~~

injury Ie se,
y horse which be “s>
‘arrics to bis xrave. A woman anda.
‘bikl orcupied the buggy bemind the» |
inaddened animal and but for the act.)
of Miller ¢ woulkt have protahly <\-
Deen Witled: Hie camght the horse, pee Pa
jeg belng Droken ‘ip ithe 4 OF ok
and wher he walked to the: gallows.» /
a Emp, the reeulg
HLS. PROPY AK

tmlay he went with
Perience,
leaves an old father, now in

of thte ex

Miller
bis elghty-third year ntwo
a alster in Germany,

town Miller sustained | an
} sopping a runawa

i
+*

) {tun to hin sister was genuine ead.
tester. “Fle seemed to fer
ty for thew than be felt
pand. in withhold:
the -pabile tre

Duncan te the on
RAK arreated who h
dsp. sel of. He is under sentence af: wo
Hfe lroprisonment apon conviction fer:
the Adams affair, but In addition te
thia he is yet charged with kifiing
foer Kekley abd will be tried thie

member of the
as not been finalty ©

ope

a7 :
PA

Be

Prauk Duncan and John D. Wet te- i
celved twenty Ove years each their =
part Inthe Standard Ol robbery, ae@ = |:
Tom Fay, who was vot present, bat
was in the conspiracy, got of: with<
nineteen years. “Sh Boge" wer. s

Harry” is the oniy rember who base
hover been apprehended, anda Phote-

eA

4 thr t

f

Was captared ft. aes
be shown that it was he whe took the. %.:.”
leading part in the killing, and be be * 4
eved that-uhder the showing he Qfth:
ler). would, have gotten Oe. with tite

imprisonment.

as

an:

53
ste,
gabza?

Ff
:
=

&

é
4
A

5

BS

=
4
7
re
ifr

FI .
g

i
ae

aR
an

34

:

*

L

ds

H

afi

Or dead
BA

ray 4 Ps aug “f ie
: gout ate

zt

to own. your home, ti
10: a6 ft -25 10. pay

more profitable, /

and You will be
effort & will cost you te,


Y, White, hanged at Ozark,

2/21/1890

FORGOTTEN TRAILS
A History of Dale County, Alabama
1824 - 1966

by
Fred S. Watson

Edited by
William R. Snell

BANNER PRESS / Publishers

Birmingham, Alabama

(V6 &


TEXAS

3 AUGUST 1989

WALTER BELL (Black). age 35 has
‘ Gonvicted of the robberv/murder o
Bell is mentally retarded with
Claims that he Was
atolen goods sf 4at his house
Bell. vag arrested at the k
Was wrong to try and 48h the cheeks
He stated recently that he Still doeg
desth Penalty for cashing bad checks.

Bell wae denied cert by the U,
his 3rd Successor habeaes.

ATL

The
statute
evidence.

Supreme Court last wee
unconstitutionally restri
S5éveral Texas Cases Are ex
The second Claim in the
mentally retarded.
unusual for the mentally retard

execution of the mentally

violates the 3th Amendment.
penalty for mentally retarded
allowed to give Weight t

do

retarded

TAKE ACTION ON THE TEXAS CASES,

CONTACT:

FAX:

| UPDATES - Ronald “Rusty” Woomer,

U.S. Supreme Court,

William
coacealioe - 1989. Thompson's
execution.

|

| Leo Edwards, Mississippi,

Sean Patrick
1989,

execution,

The New York Sénate and Assembl
On reinstating the d

lack of votes,

| The 1989 National Conference of
Death Penalty will be held in

Write to the NCADP for registration forms

NATIONAL EXECUTION ALERT NETWORK
_ C/O“NCADP
| 1419 V ST. NW

WASHINGTON Dc 20009

been
f his employers. 5

not at the murder Bcene but

and told him te
Mmnk and charged with murder,

Penry

Sbupreme

The Court held that
defendante,
o évidence of retardation.

South Carolina,
less than 12 hours

"Bud" Thompson, volunteer, Nevada,

Was executed June 21,

Flanagan, volunteer, Nevada,
Flanagan's Warrant was signed 7

on death row since 1975.

[.Q. #8timated to be in the 60°e.

cash

but did not
nt understan

Q
om.

Supreme Court on

:

nh Penryv v,
jury consideration

ted to be held up by thie ruling.
case

is eruel unusual

Attorney General Jim Mattox
State Capitol

Austin TX 78711

(512) 463-2100

(512) 469-0848

received 4 stay from the
from execution.

Wa8 executed June 19

’
warrant was signed 72 hours prior to the

1989.

WAG executed June 23,
daye prior to the

rege: Coalition to Abolish the

Nashville? Tennessee, November 10-12, 1989.

. More information in LIFELINES.

Watt Espy
Capital Punishment

Head

Research Project
PO Drawer 277

land AL 36345

bee nlddcethlashisdeldativngyslpllaclaadiedl

LETHAL INJECTION
He was
white middle S@ed couple,
Bell
that hie friends dropped the
some of the stolen checks
Bell claims he knew Ls
Know the viectime Were dead,
d why the jury gave him the

7/3/89 and now is in

Eynsugh ruled that the Texas

Court ruled that it is not eruel and
ed to be executed. Penryv also Claimed that the
punishment and

states may allow the death
80 long as the Sentencing jury ig

Locarno ace ccuuecar


DUNKINS, Horace F,, Jr.,, black, 28, elea.—tMa, (Jefferson) 7-1h-1989,,, |

. defendants, his nephew Larry Fleming and Henry Willis robbed a grocery store.

~ - _— i a erm a |
|

EXECUTION ALERT

July 7, 1989 89-7 |
NATIONAL EXECUTION ALERT NETWORK |
IS A PROJECT OF THE NATIONAL COALITION TO ABOLISH THE DEATH PENALTY
FOR MORE INFORMATION, CONTACT PAMELA RUTTER AT THE NCADP

' 1419 V ST. NW, WASHINGTON DC 20009 (202)797-7090 |

GEORGIA 12 JULY 1989 ELECTROCUTION
SON FLEMING (Black), age 59 has been on death row since December 1977. He was
convicted of the kidnapping/murder of as white police chief. The co-

Fleming drove the car in which they fled the scene of the erime. They were
pursued by the police chief who was later kidnapped and shot. Son Fleming
claims the others forced him to drive, and that he had no part in the Killing.

Son Fleming had no previous record: He had s long history of steady
employment. Fleming has been «a model prisoner for the vast 12 years. He
suffers from congestive heart disease and is in poor health after a third
heart attack in April 1986.

TAKE ACTION, CONTACT: Gov. Joe Frank Harris Board of Pardons & Parole

State Capitol Floyd Memorial Bldg. Sth Fl

Atlanta GA 30334 2 Martin Luther King JR Dr SE

(404) 656-1776 Atlanta GA 30334

Fax: (404) 656-2612 (404) 656-5703 / 5651
FLORIDA-VOLUNTEER 12 JULY 1989 ELECTROCUTION

JAMES HAMBLEN (White), age 60 has been on death row Since September 1984. He
was convicted of the robbery/murder of a white female store clerk. Hamblen
hae a long history of violence and mental illneee. He has been diagnosed as
mentally ill and has been hopitaliszed several times for that.

Hamblen claims he went to Florida seeking the electric chair. He waived
hie right to an attorney at trial and Bentencing. He claime he wante to die
and doesn’t want to epend the reset of his life in prison,

The Florida legislature recently passed a bill &llowing the terminally
ill to choose to digcontinue the use of life support systems. The bill was
vetoed by Governor Martinez. Ironically, Martinez will not etep in, in thie
case, involving a pergon choosing to die;

——.Hamblen was the Florida Supreme Court, July 6, 1989. His case hag |
never been reviewed by a federal judge. .
TAKE ACTION, CONTACT: Governor Robert Martinez (904) 488-1234/3494/2050 |
State Capitol FAX: (904) 488-9578 |
Tallahassee FL 32301 |

ALABAMA 14 JULY 1989 ELECTROCUTION
HORACE F. DUNKINS JR. (Black), age 238 has been on death row since 1981. He
was convicted of the rape/murder of a white female. Dunking was convicted by
a jury of 12 white women in the same town that he and the victim were from.

Dunkins’ co-defendant who Dunkinge claime actually committed the rape
and murder, pled guilty in a separate proceeding to non-capital murder after
& Miranda violation by the police, and ig now serving a life sentence.

After Dunkins was arrested, he was committed to a state mental hospital |
to eévaluate his ability to stand trial. The state hospital found Dunkins to |
be sane but mentally retarded,’ with an I.Q. of 65. (An I.Q. lege than 70 is |
considered the range of mental retardation.) No evidence of Dunkine’s mental
retardation was ever presented to the sentencing jury.

Dunkine*s conviction was largely the result of a etatement made to the
police without a lawyer present. Dunkins did not and still does not
understand what the Miranda “right to remain silent" meane. Expert testimony |
recently revealed that Dunking still believes the “right to remain silent”
means that he is supposed to keep silent or the judge will punish him for
talking.

Two weeks ago in state court Dunkine’s lawyere introduced, for the
firet time, expert testimony of Dunkins’s retardation overall mental age has
been estimated to be between 10 and 12 years of age.
TAKE ACTION, CONTACT: Gov. Guy Hunter |

11 South Union St. Telephone: (205) 261-7100
Montgomery AL 36130 FAX: (205) 261-4017
TEXAS 26 JULY 1989 LETHAL INJECTION |

HARVEY EARVIN (Black), age 31 has been on death row since August 1977. He was
convicted of the robbery/murder of a 75-year-old gas station attendant.
Earvin’s two co-defendant’s who confessed to being part of the planning and
carry through with the crime, received lesser sentences.

Earvin, was 18 yeare old at the time of the crime and had no previoue
criminal record.

Ala.) DUNCAN vw. STATE. 105

done and had both before and after the death of
his wife, and his conduct and remarks tending to
show dissatisfaction with his wife, is competent,
as tending to prove a motive for the commission
of the crime.

2. The supreme court will not presume a fact
not shown by the record, and make it a ground of
reversal,

Appeal from circuit court, Dale county ;
J. M. CARMICHAEL, Judge.

Indictment for murder. The defendant
in this case, Henry Duncan, was indicted
for the murder of his wife, “by giving her
morphine,” or, as alleged in the second
count of the indictment, “a poison, the
precise kind of which is unknown to the
grand jury,” was convicted of murder in
the first degree, and sentenced to death.
The body of the deceased was exhumed the
day after the burial, and the contents of
the stomach were analyzed by Dr. Lupton,
of Auburn, who testified that they con-
tained “one grain and six-tenths of mor-
phine.” The prosecution proved that the
defendant had, with the assistance of a
friend, bought a bottle of morphine about
a week or 10 days before the death of his
wife; but he testified in his own behalf
that he had given the bottle to his wite,
and she had locked it up in a trunk, and
he denied that he administered any mor-
phine to her. He adduced evidence, also,
of declarations made by his wife, who was
fur advanced in pregnancy, showing that
she was very despondent, complained of
her condition and her hard lot, and said
she would destroy her unborn child, if she
knewhowtodoit. Alexander Dean, a wit-
ness for the state, testified to a conversa-
tion had by him with the defendant, while
standing by the grave, on the evening
of the day of his wife’s death, (Thurs-
day,) in which the defendant told him “he
was going to do something that might be
a leapin the dark, but he was zoing to risk
it,” and asked him to take a note to
Georgia Balderee, and a message asking
her to meet him Saturday evening, “at the
big sate near the plum tree,” that he was
to go to the house, “and take up a book,
and ask her if it was hers, when she would
understand, and he was to give her the
note.” The witness further testified that,
“about three or four weeks” before the
death of Mrs. Duncan, he had another con-
versation with defendant,in which the lat-
ter told him of an interview between him-
kelf and Georgia Balderee, in which he ad-
vised her not to marry one Miller unless
she loved him; that he then asked witness,
“What would you think if she gave me to
understand that she loved me better than
any other man?” and witness answered
“that he would not be surprised.” The
defendant moved to exclude this conversa-
tion from the jury as evidence, “on the
ground that it was irrelevantand mislead-
ing,” and he excepted to the overruling of
his motion by the court. J. S. Judah, a
Witness for the state, testified that he had
a conversation with the defendant on Fri-
day, theday after his wife’s deatb, in which
the defendant asked him “to carry him
and the Balderee woman to Ozark the
next night to marry,” but witness refused ;
that the defendant “then set the next
Thursday,” but on Saturday, “after going

to Balderee’s,” he came to witness, and
told him “they had decided to leave on
Saturday night, and would probably go
to Headlands.” The defendant moved to
excludefrom the jury what was said about
marrying tbe Balderee woman, and he
again excepted to the overruling of hig
motion by the court. William Windham,
another witness for the prosecution, testi-
fied that, “about two months before the
death of defendant’s wife, he heard the de-
fendant say that the Balderee woman was
a nice, pretty girl, and that he would like
to haveher.” Thedefendant objected, and
excepted to the admission of this evidence,
The prosecution proved, also, that the de-
fendant and “the Balderee woman ran Off
together on said Saturday night, but were
pursued by her father and others, overtak-
en-in Florida, and brought back; and the
defendant admitted, in his statement to
the jury, that he intended to marry the
girl the next day after they were overtak-
en and brought back. The defendant re-
served another exception, which is thus
stated in the bill of exceptions: “On the
first day of the trial the defendant objected
to the introduction of experts to testify as
to the cause of the death of the deceased,
based upon the testimony of witnesses as
to her symptoms during her last illness ;
such objections being founded upon the
conflicting nature of the said testimony as
to symptoins. Thecourtoverruled the ob-
jections, and allowed the expert testimony
to go to the jury; to which ruling the de-
fendant excepted. On the second day of
the trial this expert testimony was ex-
cluded from the jury, and the same expert
witnesses were allowed to testify upon an
hypothesis. The hypothetical case stated
to experts, and their answer should go
in(?), which thesolicitor was prevented to
prove and state to them, and said experts
testified precisely as they did on the pre-
ceding day. The defendant objected to the
introduction of each expert witness, and
afterwards moved to exclude the testimony
of all the experts so examined; which mo-
tion and objection the court overruled, and
the defendant excepted.”

Borders & Carmichael, for appellant.
Atty. Gen. Martin, for the State.

STONE, C. J. Many exceptions were re-
served in this case, but they naturally re-
solve themselves into two groups: lirst,
the conduct and conversation of the de-
fendant in reference to the girl Georgia
Balderee, done and had both before and
after the death of Mrs. Duncan; and, in
this connection, the conduct and remarks
of the defendant tending to show dissatis-
faction with his wife, for whose murder he
was tried and convicted. Each and all of
this testimony was competent and legal,
as tending to prove a motive for the ecom-
mission of the offense. Baalam v. State,
17 Ala.451; Johnson y. State, Id. 618: Hall
v. State, 40 Ala. 698; Same v.Same,dl1 Ala.
9; Marler v. State, 67 Ala. 55, Same vy.
Saine, 68 Ala.580; Phillips v. State, Id. 469,

There was expert testimony introduced,
but what it was, or to what it related, we
are not informed, save the single fact, de-
posed to by Dr. Lupton, that he found
more than a grain of morphine in the

Ree

ne

Se Lee


ier eetsS

re eee:

mere eet tener

SBF | Ee BD

106 SOUTHERN REPORTER, Vot. ?. (Ala.

stomach of the deceased. Wecan imagine
many subjects to which expert testimony,
on such investigation, would relate, such
as the quantity of morphine likely to pro-
duce a fatal result. There was a motion
made to exclude the expert testimony in a
mass, which the court overruled. There
are any reasons why an exception, taken
as this was, cannot work a reversal. We
name but one. We do not know what the
testimony was, whether legal or illegal.
We can not presume a fact not shown by
the record, and make it a ground of re-
versal. 1 Brick. Dig. p. 336, § 13; Id. p. 837,
§ 23, Id. p. 886, § 1186; Gayle v Railroad
Co., 8 Ala. 586; 8 Brick. Dig. p. 448, § 570,
Id. p. 406, § 40. We find no error in the
record, and the judgment of the circuit
court is affirmed.

In giving directions for the execution of
the prisoner, the trial judge employed this
language: “At which time [the day he had
fixed for the execution] the sheriff of said
county shall conduct you from said jail to
some proper place, and there hang you by
the neck until you are dead.” This may
mislead the sheriff, as the statute is spe-
cific as to the place of inflicting capital
punishment. The day fixed by the trial
court for the execution of the prisoner be-
ing passed, it is ordered and adjudged that
Friday, the 2lst day of February 1850, be
the day fixed andset apart for the execution
of the prisoner, and on that day, between
the hours of 10 4. M. and 4 Pp. M., he be
hanged by the neck until he is dead, and
the sheriff of Dale is charged with the exe-
ecution of this sentence. In carrying this
order into effect, the sheriff is commanded
to conform to the requirements of the stat-
ute. Code 1886, $$ 4667-4669, inclusive.

SHARPE v. NATIONAL BANK OF BIRMING-
IAM.

(Supreme Courtof Alabama. Dec. Term, 1888.)

PLEDGE—SALE—RATIFICATION—FORM OF ACTION,

1. Acomplaint which, after stating that shares
of stock had been pledged to defendant, avers that
“defendant, in consideration of the premises, then
and there undertook and promised plaintiff” to
hold the stock only as pledgee, but that, in viola-
tion of its promise, defendant sold and converted
the stock to its own use, without giving plaintiff
notice of the sale, and in which plaintiff secks to
recover as damages the full value of the shares
alleged to have been converted, though informal,
is good asa complaint in case.

2. Where acascis tried as if the action was in
form ex delicto, a new trial will not be granted
because the trial judge refused a motion to amend
the complaint by adding a count formally and sub-
stantially in case.

3. A purchase of pledged stock by the pledgee
at a private sale, made without notice to the
pledgeor, and of which stock the pledgee retains
possession, does not transfer the title, or dissolve
the relation of pledgeor and pledgee.

4. In the absence of knowledge that the sale
was private, and that the pledgee was the pur-
chaser, the execution of a note by the pledgeor for
the unsatisfied balance due the pledgee after re-
ceiving information that the stock had been sold,
does not amount to a ratification of the sale, unless
the pledgeor’s intent in so acting was to ratify, ir-
respective of the character of the sale, and of who
was the purchaser.

5. Where a part owner of stock pledges it for
his individual benefit, with the authority and
consent of his own co-owner, the pledgee is es-

topped to set up the co-owner’s title as a defense
to an action by the pledgeor for its conversion.

Appeal from circuit court, Jefferson coun-
ty; Leroy F. Box, Judge.

Thomas Sharpe filed his complaint in
two counts against the National Bank of
Birmingham. The first count alleged that
plaintiff. pledged 20 shares of stock to
defendant to secure a loan of $1,200; that
defendant, in consideration of the prem-
ises, then and there undertook and prom-
ised plaintiff “to hold the stock only aw#
pledgee, and not to sell and convert the
same to its own use, without notifying
plaintiff ofits intention so to do; that de-
fendant violated its promise, and convert-
ed and sold the shares without notice to
plaintiff, to his damage $15,000, the value
of the stock. The second count was for
dividends declared on the stock since its
sale. There was judgment for defendant,
and plaintiff appeals.

W. G. Hutcheson, James Weatherly, and
Ward & Head, for appellant. Hewitt,
Walker & Porter, for appellee.

CLopTon, J. Beforethetrial wasentered
upon, plaintiff moved to amend the com-
plaint by adding acount formally and sub-
stantially in case. The court refused to
allow the amendment, evidently on the
ideathat the original complaintcountsona
breach of the contract, andis inassumpsit.
In cases where the plaintiff has an election
to sue in assumpsit for a breach of thecon-
tract, or to bring an action on the casefor
a violation of duty growing out of the
contract, itis often difficult to determine
whether a count is in form ex contractu or
ex delicto. The same facts have to be
averred, substantially, in both instances ,°
the difference being that in one the com-
plaint declares on thecontract, and assigns
breaches of the contractual stipulations,
and in the other the contract is stated as
mere inducement, and the cause of action
is founded on a breach of duty growing
out of the contract, and imposed by law.
In Whilden v. Bank, 64 Ala. 1, the test is
stated as follows: “It is from the facts
stated in the body of the count the ques-
tion must be determined; and, when these
indicate that the plaintiff is proceeding
for a measure of recovery adapted only to
the one form of action, it must be intended
that the count belongs to that form of
action, whether it is ex delicto or ex con-
tractu.” Though the transaction may
have had its origin in a contract, if the
facts stated show that the cause of action
is a violation or disregard of duties which
the law implies from the contractual rela-
tions and conditions of the parties, the
count will be regarded as in case. Insur-
ance Co. v. Randall, 74 Ala. 170. The test
of certain and easy application is the
measure of recovery to which the count is
adapted.

It may be conceded that the counts in
the original complaint are not formally
and technically in case. After stating the
pledge contract, inapt words are used t9
aver the duties, growing out of the con-
tract which the law devolved on defend-
ant, such as “the defendant, in considera-
tion of the premises, then and there under~

ssa ik

oe

DUNKINS ‘Vv.

THIGPEN** *< “395

Cite as 854 F.2d 394 (11th Cir. 1988)

with rape and murder and sefitenced to

‘death, filed habeas petition. The United - »:
. sidered by trial court when ruling on validi-

States District Court for the Northern Dis-
trict of Alabama, No. 86-G-2264-S, J. Foy
Guin, Jr., J., denied petition, and petitioner
appealed. The Court of Appeals, Vance,
Circuit Judge, on petition for rehearing,
held that: (1) admission of confession made
after break in custody did not violate Fifth
Amendment ..despite -prior invocation. of
right to counsel; (2) petitioner’s waiver of
Miranda rights was voluntary, knowing,
-and intelligent despite petitioner’s function-
ing at high mild range of mental retarda-
‘tion; and (8): petitioner was. not denied ef-
fective assistance of counsel in state:court.

’ Affirmed.

1. Criminal Law ¢412.2(4):

Police may resume questioning ac-
cused only if accused initiates contact with
police, once accused has requested counpel.
U.S.C.A. Const.Amend..-5.

2. Criminal Law ¢412.2(5)

Any statements made by accused are
inadmissible unless they are product of
knowing and voluntary waiver of Miranda
rights, even if accused has initiated contact
with police after requesting counsel. U.S.
C.A. Const.Amend. 5.

3. Criminal Law ¢=412.2(4)

Break in custody of accused after invo-
cation of Fifth Amendment right to coun-
sel, so that accused has reasonable oppor-
tunity to contact counsel, ends need for
excluding any subsequent statement of ac-
cused. U.S.C.A. Const.Amend. 5.

4, Criminal Law ¢-517.2(1):

-° Admission of accused’s confession,
made after accused stated he wished to see
attorney, his mother or somebody, did not
violate accused’s Fifth Amendment right to
counsel, where accused was not continually
in custody between time of his assertion of
right to.counsel and his confession; ac-
cused’s release from his initial custody pro-
vided him with substantial opportunity to
speak with those he wished to consult.
U.S.C.A. Const.Amend. 5.

5. Criminal Law ¢412.2(5) |
Mental ‘illness: -was' fatten’ to. be ‘con-

ty of waiver ‘of ‘eam — ibis S. - A.

Const.Amend. Be
6. Constitutional Law “easy

,Mental. retardation, does not, . ‘itself

prevent . defendant. from. voluntarily .waiy-

ing his constitutional rights.

7, Criminal Law ¢=412.2(5)

Accused’s waiver of his Miranda
rights was not’ unknowing, unintelligent, or
involuntary, ‘as result of accused’s ‘being
determined ‘to ‘function’ ‘at: high ‘mild ‘range
of mental ‘retardation. U. S. C.A. Const.
Amend. 5.

8. Criminal lee 641. 13(2, 2).

Habeas ‘petitioner was not’ denied ef-.

fective assistance of counsel at trial level
or on direct appeal in'state court; counsel
performed admirably in formulating and
pursuing petitioner’s: defense strategy at
trial and ‘on appeal. U.S.C.A.: Const.
Amend: 6. = Paris

9. Habeas Corpus €=90.2(3)
Habeas petitioner’s failure to identify
any particular need for another hearing
except to make sure that district court ap-
preciated magnitude of ineffective ‘assist-
ance of counsel issue was not enough to
meet petitioner’s burden of establishing
need for evidentiary hearing on habeas pe-
tition, where state court conducted eviden-
tiary hearing which included ineffective as-
sistance claim. U.S. GA. weet Anon: 6.

John ©. “Falkenberry, Falkenberry &
Whatley, North Birmingham, Ala., for peti-
tioner-appellant.: -

Ed Carnes, Asst. Atty. Gen., Montgom-
ery, Ala.,. for respondents-appellees, :

Appeal from the United States District
‘Court for the. Northern — of Ala-
bama.

Petition for Rehearing: and Suggestion

for Rehearing In Banc .

Before HILL, FAY and VANCE,

Circuit Judges.

394

US. 462, 477,-105 S.Ct.:2174, 2185, nibs
2d 528, 544. (1985). . ‘

“151 ‘Our inquiry does not end here, how-
ever. ‘We must also examine whether the
forum’s exercise of personal jurisdiction
over the defendants would satisfy the Flor-
ida long-arm statute,. which requires more
activities or contacts to confer personal jur-
isdiction than those demanded by: the Con-
stitution. Mallard . v. Aluminum..Co. of
Canada, Ltd., 634 F. 2d 286, 241 (5th Cir.),
cert. denied, 454 U.S. 816, 102 S. Ct. 93, 70
LEd.2d. 85 (1981)...

[6,7]. The relevant portion of the sessin
arm statute allows a federal .district-court
in Florida to exercise personal jurisdiction
over any person who “[c]ommits.a tortious
act within [Florida].”4 ‘Williams Electric
maintains thatthe negotiation and -execu-
tion in Florida of contracts that allegedly
violate antitrust laws constitute sufficient
contacts to establish jurisdiction under the
tortious activity provision of the long-arm
statute. The appellees reply that if a tort
was committed, then it was committed. in
Texas, where the alleged conspiracy to vio-
late antitrust laws had its genesis.

‘Frrst, we must decide whether the al-
leged violations of the federal and Florida
antitrust laws constitute “tortious behav-
ior” within the meaning of the Florida long-
arm statute. Although this court’s prede-
cessor has held that federal antitrust law
“does not purport to afford remedies for all
torts committed ‘by or against persons en-
gaged in interstate commerce,” Larry R.
George Sales Co. v. Cool Attic Corp., 587
F.2d 266, 272 (5th Cir.1979) (construing the
Sherman Act), antitrust violations do en-
compass some business torts. A.D.M.
Corp. v. Sigma Instruments, Inc., 628
F.2d 758, 754 (1st Cir. 1980). Gives the
unreasonable effect these violations. have
on competition, we conclude that such. ac-
tivity is tortious.5

For personal jurisdiction to attach under

‘the “tortious “activity” provision of the

4. FlaStat. § 48.193(1)(b) (1985).

5. See Bangor Punta Operations, Inc. v. Universal
Marine Co., Ltd., 543 F.2d 1107, 1109 (5th Cir.
1976) (violation of the Lanham Act constitutes

854 FEDERAL , REPORTER, 2d SERIES ~

Florida longerm statute, the plaintiff must
demonstrate that the non-resident defend-
ant “committed a substantial aspect of-the
alleged ‘tort in Florida.”: Watts v. ‘Haun,
893 -So.2d’ 54, 56 (Fla. ‘Dist.Ct.App.1981).
The court in Watts noted that such a show-
ing is properly made by establishing that
the activities in Florida “w{ere] essential to
the success of the tort.” . Jd. at 56.. In its
complaint Williams Electric alleged, inter
alia, that Honeywell and Clark’ agreed to
tie  Honeywell’s ~ recommendations .. to
Williams Electrie’s signing of a subcontract
with Clark: Until this subcontract. was ne
gotiated and ‘executed, events which oc
curred in Florida, there was no resulting
damage. to Williams Electric.. We agree
with Williams Electric that the negotiation
and execution of the subcontracts were -es-
sential to the success of the: tort.- The
district court, then, had ‘personal jurisdic-
tion over the -principal actors in the. pro-
curement of the subcontracts pursuant to
the Florida long-arm statute.

Accordingly, the judgment of the district
court ‘is: REVERSED.

W
‘° Exty NUMBER SYSTEM
T

Horace Franklin DUNKINS, Jr.,
Petitioner-Appellant,

v.
Morris THIGPEN, Commissioner of Ala-
bama Department of Corrections, and

W.E. Johnson, Warden, Holman Unit,
-Respondents-Appellees. .

No. 87-7529.

Unitéd States Court of Appeals,
Eleventh Circuit.

Aug. 18, 1988.

Petitioner, convicted in Alabama state
court of offenses charged in connection

federal tort of cantar competition); see also Al-
_ bert Levine Associates v.- Bertoni & .Cotti, 314
’ F.Supp. 169, 171 (S.D.N.Y. ~ (violation of
Clayton Act is a tort).-’

S)
S
x
3
OM
AY
®

“2 DUNKINS vy.

THIGPEN ‘397

Cite as 854 F.2d 394 (11th Cir. 1988)

‘S.Ct. 361, 88L.Ed.2d 297 (1984). - Even if'a
defendant has initiated contact with ‘the
police after requesting counsel, any state-
ments: made are ‘still inadmissible unless
‘they are the product of a knowing and
voluntary waiver. See Bradshaw, 462 U.S.
at 1045, 103 S.Ct. at 2834; id. at 1054 n. 2,
103 S.Ct.:at 2840 n. 2 (Marshall, J. dissent-
ing); Wyrick v. Fields, 459 U.S.-42, 4648,
103. S.Ct. 394, 895-96,..74 L.Ed.2d.:214
(1982); Edwards, 451-U.S. at 486 n: 9,101
S.Ct. at 1885 n. 9; Wilson v. Murray, -806
F.2d 1232, 1237 (4th Cir.1986), cert. denied,
— US. —, 108 S.Ct. 197,98 L.Ed.2d 149
(1987.4. - SFr SIRO ag goat at
‘Respondent argues first that: Edwards
does not bar the admission of petitioner’s
confession because the police honored Dun-
kins’ request. Petitioner wanted to see a
lawyer or his mother or somebody, and he
did in fact see his’ mother. Respondent
argues second that Edwards does not ex-
clude the confession because petitioner was
not continually in custody between the time
of his assertion of the right to counsel and
his confession. While the first argument is
probably meritorious, we believe that the
second argument is an even more compel-
ling basis for holding that the police did not
violate Edwards,5 —

4. The fact that the defendant initiated contact
with the police is relevant to the determination
of whether a subsequent waiver is valid. See
Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135,
1141, 89 L.Ed.2d 410 (1986); Tinsley v. Purvis,
731 F.2d 791, 795 n.-4 (11th Cir.1984).

5. Respondent also argues that by volunteering
to take a polygraph examination, petitioner ini-
tiated the interrogation that followed. Because
we base our decision on the break in custody

. grounds, we do not need to reach the initiation
argument. See infra. note 8.

6. There is no contention that the break in custo-
dy was contrived or pretextual. We do not
imply that our holding would be the same in the
event of a contrived or pretextual break in cus-
tody.

7. Dunkins’ statement that he wanted to see his
lawyer, his mother or somebody else arguably
invoked Edwards. Courts have developed con-
flicting standards for resolving ambiguous re-
quests for counsel. Srmith v. Mlinois, 469 US.
91, 95-99 & n. 5, 105 S.Ct. 490, 492-95 & n. 5, 83
L.Ed.2d 488 (1984). The Supreme Court has
held that requests for counsel should be inter-

[3,4] Several circuits have required
that there be no break in custody before
the Edwards rule will operate to exclude.a
confession. .. In these cases, the courts of
appeals have held that even when, the po-
lice -wrongfully: ignore a defendant’s -re-
quest for counsel, subsequent confessions
obtained from even police initiated interro-
gation are admissible if there has been:an
intervening break in custody. See McFad-
den v. Garraghty, 820 F.2d 654, 661 (4th
Cir.1987); United States v.. Fairman, :813
F.2d 117, 125 (7th Cir.), cert..denied, —~-
US. —, 107.S.Ct. 3240, 97: L.Ed.2d 745
(1987); : United States v. Skinner, 667 F.2d
1306, 1309 (9th Cir.1982), cert. denied, 463
U.S. 1229, 103 S.Ct. 3569, 77.L.Ed.2d 1410
(1983). . We agree that a break.in custody
dissolves a defendant’s Edwards claim. If
the police release the defendant, and if the
defendant has a reasonable opportunity to
contact his attorney, then we see no reason
why Edwards. should bar the admission of
any subsequent statements. A break in
custody after the invocation of fifth amend-
ment rights ends the néed for the Edwards

rule © ad Bs
In this case, petitioner made a somewhat
ambiguous statement that included a--re-
quest to see his attorney. Even assuming
that this statement triggered. Edwards, ?

preted broadly. Barrett, 107 S.Ct. at 832; Michi-
gan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404,
1409, 89 L.Ed.2d 631 (1986). But see Barrett,
107 S.Ct. at 832 (defendant's statement that he
agreed to talk with the police but would not
make any written statements without counsel
present made subsequent oral confession admis-
sible); Griffin v. Lynaugh, 823 F.2d 856, 862-63
(Sth Cir.1987) (defendant's request for his attor-
ney as opposed to an attorney invoked only a
limited right to counsel under Barrett and Ed-
wards ). Se oS

In Smith the defendant, responding to police
questions as to whether he understood his right
to counsel and whether he wished to talk with-
out his lawyer present, stated: “Uh, yeah. I'd
like to do that” and “yeah and no, uh. I don’t
know what's what, really.” 469 U.S. at 93, 105
S.Ct. at 491. The Supreme Court held that these
statements were enough to trigger Edwards. ‘Id.
at 96-100, 105 S.Ct. at 493-95; see also Rober-
son, at’ 2099 (defendant's statement ‘that he
“wanted a lawyer before answering any ques-
tions” was not a limited request for counsel).

On the other hand, the Supreme Court has held *

that if the defendant's statements maké ‘no indi-
cation at all that the defendant desires ‘an attor-

“396
VANCE, Circuit Judge: . { ksetioeiet

30 On Petition fot rehearing, the court with-
draws: its Previous..opinion’ dated. May: 27,
1988; and substitutes. the following, opinion.

The petition for rehearing is otherwise DE- .........
NIED and no member of this panel nor eon od
. other judge’ in regular active'sérvicé on the

‘cotirt having ‘requested that the court be
polled on’ rehearing in bane, ‘the’ suggestion
for in banc consideration ‘is’ DENIED... :::

; F
. On May 27, 1980 two sheriff’s deputies
arrested. petitioner and transported him
along with a co-worker to the Jefferson
_County Courthouse. Petitioner was a sus-
pect in the rape and murder. of Lynn
McCurry.! After the deputies read’ peti-
tioner his rights; they began to interrogate

. him.-.-After.: a -few questions,:. petitioner

‘stated: “Before I talk anymore now;: I
‘would like to talk to my lawyer or either
: ’ After this
statement, the: deputies asked a few more
questions 2: and arranged a-lineup. The
police then returned petitioner and his: co-
worker to their place of employment. At
Some point during the day, petitioner
agreed to take a polygraph test?

.. The next Morning, Sergeant . House
picked up petitioner at work and brought
him to the Sheriff’s office for the poly-
‘graph test. After the test Dunkins was
returned to his job. Later that day House
brought petitioner back for more question-
ing. An hour or so later petitioner signed

@ waiver of his rights and confessed his

complicity in the crime.

A Jefferson County Circuit Court jury
convicted Dunkins and sentenced him to
death. After. unsuccessfully challenging
his conviction and sentence on direct appeal
and on -collateral attack in the Alabama

1. The’ facts and the procedural history of. the
- Case are set out in Dunkins v. State, 437 So.2d
1349, 1351-52 (Ala.Crim.App.), aff'd Ex Parte
Dunkins, 437 So.2d 1356 (Ala.1983), cert. denied,
465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724
(1984), and Dunkins v. State, 489 So.2d 603,
604-05 (Ala.Crim.App.1985): STE

2. Respondent characterizes these questions as
personal data questions.” ’ Petitioner alleges

854 FEDERAL REPORTER, 2d SERIES

_Courts,. petitioner filed a habeas petition in
the district court.: The district court denied
the petition, and Dunkins brought this ap-
II.
“> Petitioner contends that the admission of
‘the May 28 confession violated his fifth
‘amendment: right to - counsel ~under -Mi-
.randa». Arizona, 384 U.S. 436, ‘86.S.Ct.
1602, 16 L.Ed.2d 694:(1966), and Edwards
v. Arizona, 451 US..477, 101 S.Ct.'1880, 68
‘L.Ed.2d-378. (1981). Petitioner argues that
under Miranda his expression of desire to
speak with an attorney precluded any fur-
ther questioning, and that under Edwards
he did not waive his right to have counsel
present by responding to, further police ini-
tiated investigation. =» 2

[1,2] The Supreme Court has held-that
once a defendant expresses a desire to deal -
with the police only through counsel, the
authorities may not further interrogate the
‘defendant until “counsel has ‘been made
available to him, unless the accused himself
initiates further communication, exchanges
or conversation with ‘the police.” #q-
wards, 451° U.S. at 484-85, 101 S.Ct. at
1885; See Arizona v. Roberson, — US.
——, 108 S.Ct. 2093, 2097, 100 L.Ed.2d 704
(1988); Connecticut v. Barrett, 479 US.
523, 107 S.Ct. 828, 832, 93 L.Ed.2d 920
(1987). Thus once a defendant has request-
ed counsel, Edwards permits the police to
resume questioning only if the defendant
initiates contact with Police. See Oregon v,
Bradshaw, 462 U.S. 1039, 1043, 108 S.Ct.
2830, 2833, 77 L.Ed.2d 405 (1983); Ed-
wards, 451 U.S: at 485, 101 S.Ct. at 1885;
Collins v, Francis, 728 F.2d 1322, 1332
(11th Cir.), cert. denied, 469 U.S. 963, 105

that they were designed to connect petitioner to
' the crime... - : :

-3. There is some confusion over who initiated
the idea of taking a polygraph test: petitioner,
petitioner’s co-worker or the sheriff's deputies,
‘The Alabama Court of Criminal Appeals, the
Alabama Supreme Court, and the ‘district court
all describe petitioner’s decision to take the test
differently. eee


gSL/eusnop-maiaey SeBaA Se1/E66) ‘1 | Jequieron ‘Kepsunu

Executioners, society
dehumanized by killing

By Dale Aukerman
Baltimore Evening Sun

O: July 14, 1989, I witnessed
the execution of Horace

Dunkins Jr. in the Alabama elec-
tric chair.
He was black, poor and some-

_ what retarded. Through years of.”

correspondence and then visits,
he had become a dear friend. A
jury of 12 white women had found
him guilty of the murder of Lynn
McCurry, white, 26, mother of
four.

A number of times that eve-
ning I thought about Lynn
McCurry, about her terror and

anguish. She had been tied to a

tree, raped and then stabbed 66
times. I thought of her husband
and those children left without
their mother. Whether or not
Dunkins was the murderer — he
denied to the last that he was — I
wanted to feel something of the
ghastliness of what had been
done to her and to those who
loved her.

That night I could also sense
the almost palpable evil in the air
as prison staff pressed ahead to
extinguish Dunkins’ life. At no
other time have I had such an
intense experience of the pres-
ence of evil. (I had a similar feel-
ing as I peered into Nazi gas
chambers.) In the intentional
killing of any human being is
horror beyond comprehension.

The horror is, if anything, still

~ greater when the killing, with to-

tal premeditation, is carried out
by the state.

As the last possibilities for a
stay of execution were exhausted,
the movement toward the lethal

* act gathered momentum with the

arrival of prison system digni-
taries and their subordinates.
An execution requires one or

' more executioners. It has a dehu- —

manizing impact on those who do
the killing. Some of them rather
easily become serial executioners.

That impact extends to the
prison officials and guards who
act out their roles in the ritual of
taking a life. It extends to doc-
tors. Two of them watched that
night, went in to examine Dun-
kins after the first botched at-
tempt at electrocuting him and
then examined him again to pro-
nounce him dead. Such doctors,

— , -<

“=

44 The oe

dehumanization “=
takes in governors™
_and judges. 99 .--:

instead of working for life against
death, become accomplices in
killing.

The dehumanization takes in
governors and judges, persons
with life-or-death power who de-
cide for the death of one found

guilty. Any such decision lessens

the humanity of those who make
it.

Some families of murder vic-
tims oppose the killing of the per-
son who snuffed out the life of
their loved one. Other such fam-

ilies are outspoken in calling for’

the execution of the one who has’
killed. en
The latter reaction is natural‘
and understandable. But thdgse*
who express it are still dominated’
by the terrible deed. They seek'a
catharsis that killing the perpé-
trator cannot bring. nisi
Any execution has a broader
dehumanizing effect on the pub-
lic. As I drove out from Holman

Prison, many state patrol cars ~

were parked at the entrance.
There was a carnival atmosphere.
Executions often draw together
demonstrators who express their
satisfaction with what is being
done. But all citizens who affirm
such a killing join as participants
in it. Only because so many want
an execution is it carried out. ~
In each of us is the lurking
fascination with the power to kill.
We live in a society vibrant with”
that fascination, as is evident ori‘
television. Yet so many factors

mettoe:

among them the frequency : of
murders, numb us to the horror’
involved in killing human beings.

If we are to defend our human-
ity against the forces that dimin-
ish it, we must cry out with mut-
der victims and their families.
We must seek to take in the
dreadfulness of such killing. +

But also for our humanity, we
must see the horror of executions
and cry out against that killing,
too.

Aukerman is a writer living in Union
Bridge , Md.

Wat


ot: DUNKINS:v; THIGPEN

399

Cite as 854 F.2d 394 (11th Cir. 1988)

also. be -intelligently made.”* . Miller. v.
Dugger, 888 F.2d 1580, 1538.(11th Cir.1988)
(emphasis. in original).:... Mental illness,
moreover,' is a factor: to be. considered: by
the trial court when-ruling .on the validity
of,.a. waiver, . Id,:,at. 1539; -see Cooper».
Griffin, 455. F. 2d 1142, 1145 (6th CaetOey,
acess: 186.F.2d at 1289...

[6,7] Applying Burbine <i ‘Miller to
the facts of this case, we find that petition-
er’s waiver was both voluntary and intelli-
gent. Mental retardation does not by itself
prevent a defendant from voluntarily waiv-
ing his:constitutional rights. See. Colorado
v. Connelly, 479 U.S. 157, 107 S.Ct.. 515,

523-24, 93 L.Ed.2d.473 (1986).. The volun-
tariness of a Miranda waiver depends on
the absence of police overreaching, and not
on any broad sense of “free choice.” Jd.
107 S.Ct. at 523; see United States v.
Scheigert, 809 F.2d 1582, 1533 (11th Cir.
1987). Petitioner does not argue on appeal
that his confession was involuntary due to
any police overreaching or coercion.? We
hold therefore that petitioner’s waiver of
his Miranda rights’ was not involuntary.

We also hold that petitioner’s waiver was
knowing and intelligent. The issue of peti-
tioner’s ability to understand his Miranda
rights and competently waive them was not

specifically raised at trial. Petitioner
presented no psychiatric evidence to the
trial court. Cf Cooper, 455 F.2d at 1143-
44 (defendant presented testimony of four
special education teachers at suppression
hearing); McClure, 786 F.2d at 1289 (de-
fendant presented testimony of a. clinical
psychologist at suppression hearing). In-
deed, the evidence before the trial court at
the suppression hearing indicated that peti-
tioner behaved in such a way that-he un-
derstood his rights and waived them know-
ingly and voluntarily.!° On direct: appeal,
the Alabama Court of Criminal _—

agreed:

9. Inhis petition for rehearing, petitioner asserts
for the first time the existence of police over-
reaching as a basis for finding his confession
involuntary. Because petitioner did not make
this argument to ‘the court earlier, it is not
before us now.

10. There was no evidence of eehiiteieete low IQ
or any other mental impairment at the suppres-
sion hearing or at trial. Although there was

We have thoroughly reviewed the totali-

ty of the circumstances surrounding both
statements given: by: the. defendant, ‘in-
. eluding the facts that he was nineteen
_ years old.and almost illiterate.. Our as-

-sessment of these facts convinces us that

both statements were completely yolun-
. tarily. given after a knowing and intelli-
_ gent waiver of constitutional rights. -
Dunkins v. State, 4387 -So.2d. 1349, 1358
(Ala.Crim.App.1983).-

The claim that petitioner did not sialos a
knowing and intelligent waiver because he
was “moderately retarded and functionally
illiterate” first appears in his coram nobis.
petition. Petitioner also introduced for the
first time a psychiatric report from Bryce
State Hospital. . The report stated: »

[Mental examination] revealed no_delu-

sions or hallucinations, though. he did

have a preoccupation with his legal situa-

' tion and the possibility of going to jail
_ concerned him. saat but in an appro-
priate way.. [Petitioner’s] judgment
_ and insight were fair; attention span.and
memory were within normal range; _cal-
culations and general information store
were within normal range.

‘The psychological assessment revealed
that Mr. Dunkins is functioning at the
high mild range of mental retardation
with his adaptive behaviors falling within
the borderline range. Test results are
not suggestive of organic impairment.

At the coram nobis hearing, petitioner’s
trial counsel testified that petitioner’s par-
ents told him that petitioner “didn’t have
any real problems other than being slow.”
Petitioner’s trial counsel also testified: “I
never had any real trouble communicating
with him. He was able to discuss fully
with me the events....” 1

Faced with this evidence, the coram no-
bis court ruled that petitioner’s confession

testimony that petitioner could not read, he had

his rights read to him. Petitioner indicated that

he understood his rights and knew he was waiv-
ing them in order ‘to tell his version of the
” events.

11. Petitioner's trial counsel considered ‘raising
an insanity defense, but decided. against this
strategy as potentially inflammatory. We reject
petitioner’s claim that his decision constituted

. initiated.

398

. and regardless of whether or not petitioner

initiated further discussion with the police,
we hold that petitioner’s release from his
initial custody provided him with substan-
tial. opportunity to speak with those he
wished to consult. The admission of his
subsequent confession therefore did not vi-
olate his constitutional rights under. Ed-
wards. me mit oe
r B.
Petitioner also argues that his waiver of
his Miranda ‘rights was not voluntary,
knowing and intelligent. Petitioner, citing
Hines v. State, 384 So.2d 1171 (Ala.Crim.
App.1980), contends that his confession
was neither voluntary nor knowing because
-a psychological assessment performed af-
ter his arrest revealed that petitioner’ was
“functioning at the-high mild range of men-
tal retardation.” Because of this condition,
petitioner argues that he could not have
waived ‘his rights a and ‘intelli-
gently.

(5); The ‘Supreme Court has held that
the inquiry into whether a defendant has
waived his rights under Miranda voluntar-

ney present, then Edwards does not apply. See
Burbine, 106 S.Ct. at 1142 n. 1; Tinsley v. Purvis,
731 F.2d at 795 n. 4; see also Fare v. Michael C,
442 US. 707, 724, 99 S.Ct. 2560, 2571, 61
L.Ed.2d 197 (1979) (request to speak with a
probation officer does not invoke defendant's
fifth amendment rights).

8. The Edwards requirement that the defendant
must initiate contact with the police creates the
issue of what kind of contact the defendant has

i In Bradshaw the defendant, at the

suggestion of a police officer, agreed to take a
polygraph test, and then after the test confessed
his guilt. 462 U.S. at 1042, 103 S.Ct. at 2833.. A
plurality of four justices found that by request-
ing a polygraph test and asking “well, what is
going to happen to me now,” the defendant
“evinced a willingness and a desire for a gener-

alized discussion about the investigation. .

Id, at 1045-46, 103 S.Ct. at 2835; see United

States v. Obregon, 748 F.2d 1371, 1381 (10th

Cir.1984) (defendant’s question to police inquir-

ing. what would happen to him if he talked

initiated contact under Edwards); see also Wy-
rick, 459 U.S. at 47, 103 S.Ct. at 396 (by request-
ing a polygraph examination, defendant initi-
ated interrogation about the.crime of which he
was suspected). The three dissenting justices
disagreed that the polygraph test request initi-
ated a general conversation about the crime.

854 FEDERAL REPORTER, 2d SERIES

ily, knowingly and: itteligentty has ‘two
distinct -dimensions:.--. . .
First. the» relinquishment:. of : the- “right
must have been voluntary in. the sense
that it was.the product of a free and
deliberate’ choice rather than- intimi-
dation, coercion or deception. Second,
the waiver must’ have been made: with a
full awareness both of the nature of the
_ right. being abandoned and the conse-
quences of :the decision to abandon it.
Only if the “totality. of the circumstances
surrounding the. interrogation” reveal
both an uncoerced choice and the requi-
site level of comprehension may a court
properly conclude that the Miranda
: : rights have been waived.

Moran » Burbine, 415 U. S. 412, 106 S.Ct.
1135, 1141, 89 L.Ed.2d 410 (1986); see Colo- -
rado v. Spring, 479 U.S. 564, 107 S. Ct. 851,
857, 93 L.Ed.2d 954 (1987); Evans. v.
McCotter, 790 F.2d 1232, 1238 (5th Cir.),.
cert. denied, — US. — , 107 S.Ct. 327,
98 L.Ed.2d 300 (1986); United States v.
McClure, 786 F.2d 1286, 1288-90 (5th Cir.
1986). Thus “a valid waiver of Miranda
rights must not only be voluntary; it must

Bradshaw, 462 U.S. at 1055-56, 103 S.Ct. at 2840
(Marshall, J., dissenting) (“If respondent's ques-
tion had been posed by Jean-Paul Sartre before
a class of philosophy students, it might well
have evinced a deine for a ‘generalized’ discus-
sion.”)

Federal courts have had some difficulty deter-
mining when defendants “evince a willingness
and a desire for a generalized discussion” under
the initiation prong of the Edwards analysis.
See Lamp v. Farrier, 763 F.2d 994, 997-98 (8th
Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 534,
88 L.Ed.2d 465 (1985). This is particularly true
when the case involves statements connected
with the administration of a polygraph test.
Compare United States v.. Nordling, 804 F.2d
1466, 1471 (9th Cir.1986) (no need to readminis-
ter Miranda rights before questioning defendant
about the results of a polygraph test) and Bar-
rera v. Young, 794 F.2d 1264, 1265 (7th Cir.
1986) (waiver and consent to take a polygraph
test allows prosecution to use as evidence any
post-examination statements) with Rothgeb v.
United States, 789 F.2d 647, 651 (8th Cir.1986)
(evidence of defendant's demeanor during poly-

.graph questioning is admissible even though
results and evidence of a refusal to take the test
may not be) and United States v. Gillyard,.726
F.2d 1426, 1429 (9th Cir.1984) (Wyrick does not
establish a per se rule that Miranda warnings
are not required after a ' polygraph test).


Justices Decline to Block E

WASHINGTON — Xecution

The Su
preme
fu Ala. He w
Sed to block early th a IE oust

ace Franklin Dunk;
nkins Jr. : ,
‘s he high court voted 7-2 to de
ny a

ofa 1980 ra y retarded, was conyj i Brennan and Thur, Justices William J:
220V Tape and.m : ctéd urgood:M. 5
—at¢ murder in Warrior h penalty ome —
See ee ae lrail circ
ews? Voted to spare Dunkin ‘
Ss.

0 be executed

Killer’s execution botched

ATMORE, Ala. — A mildly retarded i
killer died in Alabama's electric chair tu-
day after officials botched hooking Up i
~ the chair’s electrical connections. ;

Horace Franklin Dunkins Jr., 28, was
declared dead at 12:27 ain. after the sec-
ond attempt to electrocute him for the
:. _-1980-rape-murder-of-e- woman: AlWeE eae a
first throw of the switch at 12:08 a.m.
brought no visible response, a guard told
another guard directing the execution, “
believe you've got the jacks on wrong.”

“Two. doctors. who. examined Dunkins
determined he was unconscivus. vu Tae
a strong heartbeat. At 12:17 aan., the

switch was thrown a second time. Ten

minutes later, it was over.

endent Journal Friday, July 14, 1989 @ ADS

2 eaiesip cere: ae EO

Compiled from IJ news reports.

Marin Indep

reburts

Compiled from wire 3

ae


eee

rn

ence Ih pub BCE

4

2 Electric Jolts in Alaba

ma

wre
=
Ld

Special to The New York Times

ATLANTA, July 14 — Ina
nale to a troubled legal journ Y, Ala-|
bama prison officials had to us' |@ SPC-
ond jolt of electricity today toe ute a.
mildly retarded murderer 4 eas
first charge failed to kill him.

Alabama officials said improper
cable connections were to bldme for
the fact that the execution of ‘Horace
Franklin Dunkins Jr. took 19 mihlites.

Mr. Dunkins, who was convicted of
the 1980 rape and murder of a woman.
from Warrior, Ala., became the first
retarded murderer | to be ekécuted
since the Supreme! Court said last’
month that the Constitution didinot bat:
such executions.

Mr. Dunkins, 28 years old, ii exe-
cuted at Atmore, Ala., after the Su-'
preme Court refused late Thur day to
block his execution., The Court {voted 7
to 2, with Justices William J; tentiah
and Thurgood Marshall disent Thea

Stay for Georga Murderef}}: . tl

In Georgia, the State Supre Colt
issued a temporary stay of e ecution:
Wednesday forSon H. Flemidg) ‘who,
has also been found to be mild! yetard-
ed. He was convicted of: mur ring a
rural Georgia policé:chief in 19 ;

In ruling June 26 that the Coheed
tion allows States to.execute mentally
retarded murderers, the United States:
Supreme Court said juries Were re-

“ woman
grisly fi-,

quired to consider evidence of sctardia-

| 4 just pepe Ht that
he was not | |

| conscious.’
3 4 i

tion! Lie foipe imposing a death sentence,;
Officials said the first throw of the
electrical switch at 12:08 this morning
failed: to kill Mr, Dunkins. Officials
reconhected the cables as Mr. Dunkins
eas apparently unconscious, strapped
o:the electric chair, his face covered
by a lack veil. At 12:17, the switch was
thrown second time and 10 minutes
later, Tbe, ‘was declared dead. '
ie abama officials said human error
w it he cause 6f the problem.
hegret very very much what hap-
pened, "the Alabama Prison Commis-
sioncr, Morris Thigpen, said at a news
confefence after the execution. “It was |
human error. I just hope that he w
nat;conscious and did not suffer.” te
ritics said it was a ghoulish finale t
a case that raised troubling questions
aljdul/executing tHe retarded.

| Brutal ¢ and. ‘Unjustifiable’ by, 4

We was | awful, said Mr.’ “Dunkins's
lawyer, Stephen |b, Ellis. “What hap-
pened was brutal and unjustifiable in
aiid of itself. That it followed a “tha

miscarriage of justice made it: that
uch worse."

ik . Dunkins = an accomplice were ||

1}

Senate Mor on

F; lag

i A
'

Is §

j

j i

WASHINGTON, July 14 (AP
Senate will act this fall on both & consti:
tutional amendment and a les$ sweep-
ing statute to overcome last m

) - The

onth’s
Supreme Court ruling that alléws flag
burning, Senator George J. Mitchell

said today.

The majority leader’s annou
represented a compromise
those seeking quick action on
ing the Constitution! and thos
caution, especially if a statute
complish the goal. -

Mr. Mitchell, a Maine Democrat,
said the compromise schedulé would
let the Senate approach the issle ‘in a
serious, mature, deliberate way.” ©

‘Senator Bob Dole, Republjcan. of

cement
between
amend-
urging
will jac-

fie

Kansas, the minority; leader, w Iljintro-
' f war)

. cheduled for Ki at
jt 3

H4 |

luce. the constitutional amendment
supported by President Bush on Tues-
day. The Senator said Mr. Mitchell's
agreement insured that opponents of ‘a
constitutional amendment would not be
nel to use the Statute to hina further
action.

'\Undet the bipaitisan agreement, the
Séniite Judiciary’ Committee would
hold hearings and then report both ap-

ee to the full Senate by Sept. 22.

Thé House ‘constitutional law sub-
chin mimittee has begun hearings. The
fu I] House could act on a statute before
tha August Congressional recess, Sup-

port: 2rs of a statute hope that passions
fort: a constitutional amendment cool

at ay the recess.

pai t+. ,

convicted q

|
i
Ip
|

given evidénte of his retardationt
isaid such eVitlence would have been

‘affects a

‘cent br mor¢ of the. Prisoners on,
row may b

“This thing i

|was not th

lof a 26-year-did
raped and then s abbed 66: ihe d
lied to a‘trpe: The | accomp! lice

Mr, Dunkihs’s lawyers arp ued’

giveria lifé sentence, f
‘his iat ntencé - Should4 be #over

‘turned begalise the jury was | beer :
ey |‘
es-|

sential for| avaluating his culpability,

and they jafgued that Mr,‘ Dunkins| :

waived his'right to & lawyer
interrogatibr| by the police al eg

understanding of his legal rights. id
A juror whb heard the ‘ease thi Wi
ipresented | attiavit tt

€ voted fora
tence if she oe

kho
kins’s retardhtio ‘ ius ne

would not

mental impajrin entiéven: if
termed: iien ally; fist ded
his 1.Q; pf-69,/at

dation, ‘made
actions! {2h
{ “It You
alty; if you dd
this, what
Carhes, he d
division of h
eral’s Office.
‘But Mr. JE

gave. the n uh le

if atrim

gat ve it £644":
of ih at p hich
e'Ala ma Alto

barr Wd ofr ait
lis argued’ that! the: Lashe
brutality of'the ¢ trinfe, but
Duhkins received '8- ‘fair
cial review. |
an indigent, iaanaligs re-
’ helsaid. “There was!ab-
solutely nd jnterest in protecting *his
rights or making gure his magpie
and death|stntence were: fair, and | in
this case they were hot.” +f) t+ |

Dr: Georg

psychology 4
Carolina,,, wh

whether Mr
trial and jud

“This was
tarded mah,

t the University ofN North
O testifidd at an appéals
hearing as'ah expert witness called by
Mr.'Dunkins}s lawyers, said the tourts
and; legal piofessidn ‘had hot ie

dressed the fssues of how: retardation

fson’s ability to reason) to
oral issues, to make deci-
legal

understan
sions and jt
rights. Ex

protect their, own
rts estimate that :10

nentally retarded. |’

a' slippery Slope '
people are going”
or the |country,” hé
going, ‘to eet f ige hat

ie

“We're
where the
killed all

@)

‘

> S. Baroff,' a: profesdot of| 5

SATURDAY, JULY 15, 1989 |

bade |

ie eda oe rs


- “—Dunkins-was declared dead:

Killer Dies in Botched Execution

Associated Press

not conscious and did not suffer.”

en Dunkins-had-been-condemmed— at the death penal © can be_ad-

Atmore, Ala,-—————

A retarded man, colheind:

of raping and killing a woman

in 1980, died early today in Ala-.

-.bama’s electric chair in a botch-
ed eveention alter orieais 7ai-

ed to connect the chair proper-
ly.

Horace Franklin Dunkins Jr.,
28, was strapped into the chair at
Holman Prison and the switch was
first thrown at 12:08 a.m., but the
current only knocked Dunkins un-
conscious,

Two doctors determined that
his heartbeat was still strong, state
Prison Commissioner Morris_Thig-
pen said. “They’re torturing him.”
Dunkins’ attorney said during the
medical exam.

At 12:17 a.m. the switch was
_.thrown.asecond time. At 12:25 a.m.

~ for raping and “murdering Lynn

McCurry, a 26-year-old mother of
four who was found stabbed 66
times and bound to a tree behind

her-home:-A- secon’ “tefendant.-

Frank M. Uarris, plead guilty and
is serving a life sentente,

According to court documents,
Dunkins had an IQ oi a9, The U.S.

:-

-—-y

Supreme Court ruled two weeks ago

ministered. to retarded killers as.

long as the sentencing juries or

judges have considered the retarda- -

tion as a mitigating factor.

~~ federal judge refused-Wed-
nesday io block the execution, rui-
ing that the trial judge had consid-
ered Dunkins’ IQ. An appeilate
court and the Supreme Court re-
jected appeals yesterday.

Gvar.itian in Alahama
awe eeeeettrrarrterc trots titt

,

ATMORE, Ala. — A mildly retard-
ed kiltér died in Alabama’s electric
chair early Friday after prison offi-
cials totched hooking up the chair’s

electrical connections

Thigpen said the jacks connect- -
-ing electricity to the chair had been -

reversed and did not deliver
enough voltage to kill Dunkins on
’ the first try. “I regret very, very
_much what happened,” he said. “It
:=was human error. J just hope he was

Geese

Horace Franklin Dunkins Jr., 28,

_WaS weclared-dead at 12:27 a.m. af-
_ter.the second attempt toelectrocute __
- him for a-1980 rape-murder. The ex-

ecution came after the U.S. Supreme

“Court turned down two appeals.
= Bee news services

ee “The. ik & The Sacremento Bee Final . Friday, ity 14,1989 Yi

ywwwwvwwi

San Francisco Chronicle Friday, July 14, 1989
NATIONAL NEWS a
ons

= se -

EXECUTION BOTCHED: In At-
more, Ala., a state prisons official
said Friday that although it took
two tries to execute a convicted
killer in the electric chair, the first
jolt of electricity rendered hirn un-
conscious. The botched execution
of: Horace Franklin Dunkins early
Friday — with the first failed try
apparently caused by a faulty ca-
ble hookup — is likely to refuel
arguments by death penalty oppo-
nents that the electric chair is
“cruel and unusual punishment.” A
1983. execution that took three jolts |
~~ of electricity led to a federal court £
challenge. Dunkins, 28, a mildly | f
retarded man, was executed for
the. 1980 slaying of a woman who
was- raped and stabbed 66 times

while tad to 9. trea
Vaasa tawcs LO oe ewe

ps come

20A_ Saturday. July 15,1989 # San Jose Mercury News

ALABAMA EXECUTION:
mildly retarded man was hea

cuted in- Alabama’s electric
.., Chair early today for the 1980
+] rape-murder of a woman after
-4 the U.S.-Supreme-Court twice
: turned down—last-minute - ap-
“4.. peals. Horace-Franklin- AL
=3 Jr.,-28;-was- declared dead: at || |
A 12:25 a.m. in Atmore, Ala. .~i.--
ee

_ELSEWHFRE:ENan= cen a ome ae
=30K- “Friday, jaly 4, 71989 a San Jose Mercury ous ees

Looe : =


Georgia high court:
blocks executio pee
Alabama stay denied

ATLANTA (AP) — Gebrgia’s
Supreme Court blocked th execu-
tion Wednesday of murdefer Son
Fleming an hour after alparole
board ruled that his low IQ doesn't
entitle him to leniency, ,

Elsewhere, a federal judge in

retardation in deciding wh her, to,

: }
Fa

of Pardons and Paroles | @ i
clemency. ‘| ona

Fleming, 59, wags convicted witH |
two other men in the 1976 murder |
of Police Chief Ed Giddens Ray |

ity, who was shot to death: and

1s body dumped in a Swamp jafter |
e stopped a car; matchi {one

used in a robbery, | 1 ae i
eir appeal, Fleming’ law-

Says a defendant’s mental
tion can be considered in ome
cases when applying the ath
penalty. However. the law doe
apply retroactively tg casas (lik
eming’s. ie aie

His IQ scores range from 64 {o.|

72; @ person with an IQ df 70 is
considered mentally handi-!|
capped. hae

“Philosophically, I don't nt to |
see mentally retarded eoplé exe- |
cuted. But my job and oath! ig to. |
See that the law is carried ul,’ !)
Said Attorney Genera] Mi¢hael | |
Bowers. He said he made nd rec: |

Pardons and Paroles Chai man |,
ayne Snow said the ard.
rejected Fleming’s appeal on.
grounds that Fleming was aware —
of the Consequences of his a tions
despite his low IQ. a.
In the Alabama case, defense
attorney Steve Ellis argued that
S. Supreme Court r ling
requires that a jury consider 4
defendant's retardation,

! MMIOmIiman MLV rHG |

dndid| Ti

some’ |

4

ime
ae o
S28
Se ae aan
1 Oa e.
By 2
> th-ae
a;
(oe) -~
aS
8
oo
eB) $!
a4


is scheduled to execute Horace Frank-

- June 26 that the Constitution allows

wer

austce thwarted again

DUNKIN SA12 Elec. Ala. (Jef

wwe

|
7-1h 1909

Executions of Retarded Men
Set in the South Stir Debate

By PETER APPLEBOME

Special to The New York Times

ATLANTA, July 12 — Less than a
month after the Supreme Court ruled
that states can execute murderers who
are mentally retarded, two executions
that were scheduled within 36 hours of
each other has focused attention on the
complex issues raised by the decision.

Son H. Fleming, a 59-year-old Geor-
gia convict, had been scheduled for ex-
ecution today for the 1976 killing of a
rural police chief, but the Georgia Su-
preme Court, in a 4-to-3 vote today,
issued a stay of execution five hours
before he was to go to the electric
chair. Early Friday morning, Alabama

lin Dunkins Jr., 28, convicted of a 1980
rape and murder in Warrior, Ala.

Both men are classified as mildly re-
tarded, with intelligence quotient
scores below 70 and mental develop-
ment below that of a 12-year-old. Both
were accused of especially brutal
crimes that outraged their communi-
ties, both were convicted and sen-
tenced by juries that were unaware of
their retardation, and both are blacks
convicted of killing whites.

And both cases, the first executions
of retarded people scheduled since the
Supreme Court ruling, reflect many of
the difficulties and ambiguities of
determining who is mentally retarded
and what effect that has on criminal
behavior. Criminal justice experts esti-
mate that 10 percent of the inmates
facing executions nationally are re-
tarded, but many have not been evalu-
ated so the experts view the figure as a
rough estimate.

Evaluations Are Difficult

Stephen Bright, director of the South-
ern Prisoners Defense Committee
here, which represents inmates in 11
states, said overworked and underpaid
court-appointed lawyers. in capital
cases seldom had the time, knowledge
or resources to adequately document
mental retardation in their clients. And
he said the courts seldom had the ex-
pertise to evaluate such cases.

“The problem is that no one knows
anything about this stuff,’ Mr. Bright
said. ‘‘There are very few specialists
who know what being mentally re-
tarded is, and how it affects a person’s
ability to reason and to make judg-
ments.”’

Paradoxically, the Supreme Court
ruling allowing the execution’ of re-
tarded inmates may also be their best
hope for a reprieve. The Court ruled

states to execute mentally retarded
murderers, but ‘the Justices also said
juries were required to consider a per-
son’s mental disability before imposing
a death sentence.

Revulsion Over the Crimes

Lawyers for Mr. Fleming and Mr.
Dunkins are invoking that reasoning in

contesting the death sentences. In both
cases, the questions about mental
competence have been overshadowed
by revulsion over the crimes.

Mr. Fleming, whose execution had
been delayed twice before today’s stay,
was convicted of the 1976 murder of Ed
Giddens, the 29-year-old police chief of
a small town, Ray City. Mr. Giddens
stopped a car driven by Mr. Fleming
but was apparently unaware that he
and two other men had committed an
robbery earlier. The officer was over-
powered, shot several times in the head
and his body was dumped ina swamp.
One other man has been executed and
another given a life sentence in the
case.

Mr. Dunkins was convicted of raping
and killing a 26-year-old mother of four
in 1980. She was stabbed 66 times.

Mr. Fleming was scheduled to die at
7 P.M. today, but after the Georgia
Board of Pardons and Paroles refused
to commute his sentence to life in
prison on the basis of the new argu-
ments, the Georgia Supreme Court or-
dered a stay while it considers the
case. A court spokesman declined to
speculate how long the delay would be,
Saying it could be days or months. The
Georgia Legislature banned executions
of the mentally retarded last year but
did not apply the law to inmates al-
ready sentenced.

The two cases are both typical and
troubling because they deal with ambi-

‘The problem is
that no one

knows anything
about this stuff.’

guities about what constitutes mental
retardation. Both men have I.Q. scores
just below 70, which puts them near the
upper end of the range of the mildly
mentally retarded.

A Continuum, Not a Distinction

In Mr. Fleming’s case, Georgia is
questioning whether his I.Q. is below
70. In Mr. Dunkins’ case, Alabama offi-
cials say his I.Q. is so close to the upper
end of the scale of retardation as to
make the distinction unimportant.

Dr. Norman Ellis, a professor of psy-
chology at the University of Alabama
said the cases reflect the difficulty of
the issue in courts.

“The problem is, you’re dealing with
a continuum here rather than an all or
nothing distinction,’ he said. “The
issue is not very different from the
legal issue having to do with mental ill-

Horace Franklin Dunkins dts
who has been classified as mildly
retarded, is to be executed Friday
in Alabama for a 1980 murder.

ness, in which the question is where do
you draw the line between whether this
guy is just mean or mentally ill?”

Dr. Ellis said about 3 percent of the}

population have the combination of an

1.Q. below 70 and other mental handi- |:
caps severe enough for them to be clas- |.

sified as retarded.

Dr. Ellis said he agreed with oppo-
nents of executing the retarded, saying
that even at the upper end of the scale
the retarded often don’t have the abil-

ity to make appropriate disinctions be- |
tween right and wrong. Mr. Dunkins’ '
lawyers argue that not only was his

mental limitation a factor in his crime, ,
but that he was also unable to under- |
stand his legal rights and unknowingly |
waived his right to counsel.

But Ed Carnes, head of the capital
punishment division of the Alabama
Attorney General’s Office, said the re-
tarded commit fewer crimes than the

population as a whole, and there is no|'

indication Mr. Dunkins’ mental ability
played any role in his crime.

Texas to Retry Retarded Man

LIVINGSTON, Tex., July 12 (AP) —
Prosecutors have decided to retry a re-
tarded man whose death sentence for a
murder and rape was struck down last
month by the Supreme Court.

Without a retrial, the state would/t

have to commute the sentence of the
man, Johnny Penry, to life in prison.

Mr. Penry, 33 years old, was sen-
tenced to death in 1980 for the slaying
of Pamela Carpenter, 22, the sister of
the former Washington Redskins kick-
er, Mark Moseley.

The Supreme Court blocked the sen-
tence, saying jurors should have been
instructed of his history of mental im-
pairment and child abuse so they could
consider a life sentence instead. But
the Court also said that it was not un-
constitutional to execute a mentally re-

tarded person.

ee

_ THE NEW YORK TIMES NATIC

ee ee

-

“A

ee


394
U.S. 462, 477, 105 S.Ct. 2174, 2185, 85 L.Ed.
2d 528, 544 (1985).

[5] Our inquiry does not end here, how-
ever. We must also examine whether the
forum’s exercise of personal jurisdiction
over the defendants would satisfy the Flor-
ida long-arm statute, which requires more
activities or contacts to confer personal jur-
isdiction than those demanded by the Con-
stitution. Mallard v. Aluminum Co. of
Canada, Lid., 634 F.2d 236, 241 (5th Cir.),
cert. denied, 454 U.S. 816, 102 S.Ct. 98, 70
L.Ed.2d 85 (1981).

[6,7] The relevant portion of the long-
arm statute allows a federal district court
in Florida to exercise personal jurisdiction
over any person who “[clommits a tortious
act within [Florida].”* Williams Electric
maintains that the negotiation and execu-
tion in Florida of contracts that allegedly
violate antitrust laws constitute sufficient
contacts to establish jurisdiction under the
tortious activity provision of the long-arm
statute. The appellees reply that if a tort
was committed, then it was committed in
Texas, where the alleged conspiracy to vio-
late antitrust laws had its genesis.

First, we must decide whether the al-
leged violations of the federal and Florida
antitrust laws constitute “tortious behav-
ior” within the meaning of the Florida long-
arm statute. Although this court’s prede-
cessor has held that federal antitrust law
“does not purport to afford remedies for all
torts committed by or against persons en-
gaged in interstate commerce,” Larry R.
George Sales Co. v. Cool Attic Corp., 587
F.2d 266, 272 (5th Cir.1979) (construing the
Sherman Act), antitrust violations do en-
compass some business torts. A.D.M.
Corp. v. Sigma Instruments, Inc., 628
F.2d 758, 754 (1st Cir.1980). Given the
unreasonable effect these violations have
on competition, we conclude that such ac-
tivity is tortious.®

For personal jurisdiction to attach under
the “tortious activity” provision of the

4. FlaStat. § 48.193(1)(b) (1985).

5. See Bangor Punta Operations, Inc. v. Universal
Marine Co., Ltd., 543 F.2d 1107, 1109 (5th Cir.
1976) (violation of the Lanham Act constitutes

854 FEDERAL REPORTER, 2d SERIES

Florida long-arm statute, the plaintiff must
demonstrate that the non-resident defend-
ant “committed a substantial aspect of the
alleged tort in Florida.” Watts v. Haun,
893 So.2d 54, 56 (Fla. Dist.Ct.App.1981).
The court in Watts noted that. such a show-
ing is properly made by establishing that
the activities in Florida ‘‘w[ere] essential to
the success of the tort.” Jd. at 56. In its
complaint Williams Electric alleged, inter
alia, that Honeywell and Clark agreed to
tie Honeywell’s recommendations to
Williams Electric’s signing of a subcontract
with Clark. Until this subcontract was ne-
gotiated and executed, events which oc-
curred in Florida, there was no resulting
damage to Williams Electric. We agree
with Williams Electric that the negotiation
and execution of the subcontracts were es-
sential to the success of the tort. The
district court, then, had personal jurisdic-
tion over the principal actors in the pro-
curement of the subcontracts pursuant to
the Florida long-arm statute.

Accordingly, the judgment of the district
court is REVERSED.

© © KEY NUMBER SYSTEM

syms

Horace Franklin DUNKINS, Jr.,
Petitioner—Appellant,

v.

Morris THIGPEN, Commissioner of Ala-
bama Department of Corrections, and
W.E. Johnson, Warden, Holman Unit,
Respondents—Appellees.

No. 87-7529.

United States Court of Appeals,
Eleventh Circuit.

Aug. 18, 1988.

Petitioner, convicted in Alabama state
court of offenses charged in connection

federal tort of unfair competition); see also Al-
bert Levine Associates v. Bertoni & Cotti, 314

F.Supp. 169, 171 (S.D.N.Y.1970) (violation of
Clayton Act is a tort).


first execution try

circumstances of Dunkins’ €xecution,
Associated Press Writer |

fficials said
was Incorrectly Plugged in. -
; aL ene “Tt “4
MONTGOMERY _ T

: 1 wed no movement
| ‘after the first flip of the switch,
execution attempts. = . tion, the Surge of electricity Causes the body to im-
© comments by Michael Morris, a biomedical] mediately tense es | .
engineer at Auburn ey marked the first time ~ After the botched attem
officials have fully ' Xplaine ,

What occurred during jn th
Dunkins’ electrocution last July 1

y e€ chair. Correctly and Dunkii

0-volt Surge

quest of state officials, Morris said he recreated the

pt; prison officials plugged

2 a’, Morris said ‘Dunkins
~cvamMa 's ne PE MICROM AYES Tobey Teceived no electricity on th fir
_. During a Series of tests performed Aug. ] at the re-


Father of Executed Prisoner |
Wins $15,000 Autopsy Suit!

BREWTON, Ala., April 25 (AP) —A.

jury has awarded $15,000 to the father:

of an executed prisoner who-objected'
to an autopsy of his son.

- The procedure was performed on the:
body of Horace Franklin Dunkins Jr:
after he died in the electric chair at.
Holman Prison on July 14, 1989, for:
rape and murder.

His father, Horace Dunkins Sr. of!
Birmingham, said the autopsy pre-;
vented his son from having a proper}
burial and violated a signed agreement |
with the Department of Corrections. |

Testimony in the case showed that}
the State Attorney General and the dis-:
trict attorney ordered the autopsy in|

. _ the event of litigation against the state:

because it took two jolts to complete:
the execution. : °

FR 10A4 as

ede

DUNKINS v. THIGPEN

397

Cite as 854 F.2d 394 (11th Cir. 1988)

S.Ct. 361, 83 L.Ed.2d 297 (1984). Even if a
defendant has initiated contact with the
police after requesting counsel, any state-
ments made are still inadmissible unless
they are the product of a knowing and
voluntary waiver. See Bradshaw, 462 U.S.
at 1045, 103 S.Ct. at 2834; id. at 1054 n. 2,
103 S.Ct. at 2840 n. 2 (Marshall, J. dissent-
ing); Wyrick v. Fields, 459 U.S. 42, 46-48,
103 S.Ct. 394, 895-96, 74 L.Ed.2d 214
(1982); Edwards, 451 U.S. at 486 n. 9, 101
S.Ct. at 1885 n. 9; Wilson v. Murray, 806
F.2d 1232, 1237 (4th Cir.1986), cert. denied,
— US. —, 108 S.Ct. 197, 98 L.Ed.2d 149
(1987).4

Respondent argues first that Edwards
does not bar the admission of petitioner’s
confession because the police honored Dun-
kins’ request. Petitioner wanted to see a
lawyer or his mother or somebody, and he
did in fact see his mother. Respondent
argues second that Edwards does not ex-
clude the confession because petitioner was
not continually in custody between the time
of his assertion of the right to counsel and
his confession. While the first argument is
probably meritorious, we believe that the
second argument is an even more compel-
ling basis for holding that the police did not
violate Edwards. ®

4. The fact that the defendant initiated contact

- with the police is relevant to the determination
of whether a subsequent waiver is valid. See
Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135,
1141, 89 L.Ed.2d 410 (1986); Tinsley v. Purvis,
731 F.2d 791, 795 n. 4 (11th Cir.1984).

5. Respondent also argues that by volunteering
to take a polygraph examination, petitioner ini-
tiated the interrogation that followed. Because
we base our decision on the break in custody
grounds, we do not need to reach the initiation
argument. See infra note 8.

6. There is no contention that the break in custo-
dy was contrived or pretextual. We do not
imply that our holding would be the same in the
event of a contrived or pretextual break in cus-
tody.

7. Dunkins’ statement that he wanted to see his
lawyer, his mother or somebody else arguably
invoked Edwards. Courts have developed con-
flicting standards for resolving ambiguous re-
quests for counsel. Smith v. Illinois, 469 U.S.
91, 95-99 & n. 5, 105 S.Ct. 490, 492-95 & n. 5, 83
L.Ed.2d 488 (1984). The Supreme Court has
held that requests for counsel should be inter-

[3,4] Several circuits have required
that there be no break in custody before
the Edwards rule will operate to exclude a
confession. In these cases, the courts of
appeals have held that even when the po-
lice wrongfully ignore a defendant’s re-
quest for counsel, subsequent confessions
obtained from even police initiated interro-
gation are admissible if there has been an
intervening break in custody. See McFad-
den v. Garraghty, 820 F.2d 654, 661 (4th
Cir.1987); United States v. Fairman, 813
F.2d 117, 125 (7th Cir.), cert. denied, —
U.S. ——, 107 S.Ct. 8240, 97 L.Ed.2d 745
(1987); United States v. Skinner, 667 F.2d
1306, 1309 (9th Cir.1982), cert. denied, 463
U.S. 1229, 103 S.Ct. 8569, 77 L.Ed.2d 1410
(1983). We agree that a break in custody
dissolves a defendant’s Edwards claim. If
the police release the defendant, and if the
defendant has a reasonable opportunity to
contact his attorney, then we see no reason
why Edwards should bar the admission of
any subsequent statements. A break in
custody after the invocation of fifth amend-
ment rights ends the need for the Edwards
rule.®

In this case, petitioner made a somewhat
ambiguous statement that included a. re-
quest to see his attorney. Even assuming
that this statement triggered Hdwards,’

preted broadly. Barrett, 107 S.Ct. at 832; Michi-
gan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404,
1409, 89 L.Ed.2d 631 (1986). But see Barrett,
107 S.Ct. at 832 (defendant's statement that he
agreed to talk with the police but would not
make any written statements without counsel
present made subsequent oral confession admis-
sible); Griffin v. Lynaugh, 823 F.2d 856, 862-63
(5th Cir.1987) (defendant's request for his attor-
ney as opposed to an attorney invoked only a
limited right to counsel under Barrett and Ed-
wards ).

In Smith the defendant, responding to police
questions as to whether he understood his right
to counsel and whether he wished to talk with-
out his lawyer present, stated: “Uh, yeah. I'd
like to do that” and “yeah and no, uh. I don't
know what's what, really.” 469 U.S. at 93, 105
S.Ct. at 491. The Supreme Court held that these
statements were enough to trigger Edwards. Id.
at 96-100, 105 S.Ct. at 493-95; see also Rober-
son, at 2099 (defendant's statement that he
“wanted a lawyer before answering any ques-
tions” was not a limited request for counsel).
On the other hand, the Supreme Court has held
that if the defendant's statements make no indi-
cation at all that the defendant desires an attor-


7 4 f ’ vo

STACEY v. WARDEN, APALACHEE CORRECTIONAL INST.

401

Cite as 854 F.2d 401 (11th Cir. 1988)

Charles Graddick, Atty. Gen. of Ala.,
John Gibbs, Ed Carnes, Asst. Attys. Gen.,
Montgomery, Ala., for respondent-appellee.

Appeal from the United States District
Court for the Middle District of Alabama,
Truman M. Hobbs, Chief Judge.

ON PETITIONS FOR REHEARING
FILED BY BOTH PARTIES AND ON
SUGGESTION FOR REHEARING IN
BANC FILED BY APPELLANT

(Opinion March 9, 1988, 11 Cir.,
840 F.2d 1583)

Before VANCE, HATCHETT and
CLARK, Circuit Judges.

PER CURIAM:

Upon consideration of respondent-appel-
lee’s petition for rehearing in the nature of
a request for modification, the opinion filed
March 9, 1988 is modified in the following
respects:

(1) We hereby delete paragraph twelve

under Section I of the opinion. 840 F.2d

1533, 1540 (11th Cir.1988).

(2) The first sentence in the thirteenth

paragraph is modified by making the fol-

lowing addition:

Turning to the charge that his counsel
was ineffective, Julius argues that ad-
mission of the prior offense violated his
right to a fundamentally fair trial. We
need not address the issue of ineffective-
ness because in the interim, the issue has
been put to rest by the Supreme Court in
Marshall v. Lonberger, 459 U.S. 422, 103
S.Ct. 848, 74 L.Ed.2d 646 (1983).

The petition for rehearing filed by appel-
lant Julius is DENIED, and no member of
this panel nor other judge in regular active
service on the court having requested that
the court be polled on rehearing in banc
(Rule 35, Federal Rules of Appellate Proce-
dure; Eleventh Circuit Rule 35-5), the sug-
gestion for rehearing in bane is DENIED.

© & KEY NUMBER SYSTEM

4ums

Fred B. STACEY, Jr.,
Petitioner—Appellant,

Vv.

WARDEN, APALACHEE CORREC-
TIONAL INSTITUTION,
Respondent-Appellee.

No. 86-7865.

United States Court of Appeals,
Eleventh Circuit.

Sept. 2, 1988.

Prisoner who had been convicted of
robbery in Alabama then escaped from
prison and thereafter was convicted of sep-
arate crime and incarcerated in Florida

filed habeas corpus petition in Alabama in

which he alleged that he had been deprived
of effective assistance of trial. counsel.
The United States District Court fér the
Southern District of Alabama, No. 86-
0540-C, Emmett Ripley Cox, J., dismissed
petition and prisoner appealed. The Court
of Appeals held that: (1) remand was re-
quired for determination as to whether Ala-
bama lodged detainer warrant so that pris-
oner would be sufficiently within Ala-
bama’s custody to give district court sub-
ject matter jurisdiction over habeas peti-
tion; (2) ineffective assistance of counsel
claim was not waived upon prisoner’s es-
cape; and (8) prisoner was not procedurally
barred from federal habeas review. :

Reversed and remanded.

1. Habeas Corpus <9

Prisoner must be “in custody” in state
for district court to have subject matter
jurisdiction over habeas petition attacking
conviction in that state’s court; although
prisoner need not be physically “in custo-
dy” for subject matter jurisdiction to at-
tach, state must exercise some control over
prisoner. to satisfy requirement. 28 U.S.
C.A. § 2254(a).

400

was properly admitted at trial. On the

second appeal, the Alabama Court of Crimi-

nal Appeals reaffirmed its prior holding

that petitioner’s waiver was knowing, intel-

ligent and voluntary. The court explained:
The circumstances surrounding the peti-
tioner’s confession indicate that he did in
fact understand and voluntarily waive
his rights. Moreover, a person function-
ing in the high mild range of mental
retardation, such as the petitioner, can
intelligently waiver their rights. It is
the opinion of this court that petitioner
did in fact voluntarily waive his rights
and his confession was properly admit-
ted.

Dunkins v. State, 489 So.2d 6038, 610 (Ala.
Crim.App.1985) (citations omitted).

Based on these facts and the totality of
circumstances surrounding the interroga-
tion, see Burbine, 106 S.Ct. at 1141, we
agree with the courts below that despite
the fact that petitioner’s IQ may have been
somewhat below normal, he understood his
Miranda rights and knowingly waived
them.” All of the evidence supports the
state court’s findings, and petitioner has
presented no new evidence of any mental
impairment.!8

Petitioner therefore made a voluntary,
knowing and intelligent waiver of his Mi-
randa rights. His subsequent confession
was properly admitted at trial.

C.

[8,9] Petitioner argues finally that he
was denied effective assistance of counsel

ineffective assistance of counsel. See infra Part
II.C,

12. The ultimate question of the admissibility of
a confession is a legal issue requiring plenary
federal review. Miller v. Fenton, 474 U.S. 104,
106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985); Lind-
sey v. Smith, 820 F.2d 1137, 1150 (11th Cir.
1987); see Ballard v. Johnson, 821 F.2d 568, 571
(11th Cir.1987).

13. Petitioner’s reliance on Hines is misplaced.
In Hines, the defendant had an IQ of 39, and
there was extensive testimony that the defend-
ant could not have understood his Miranda
rights as they were read to him. See 384 So.2d
at 1176-81. In this case, petitioner’s impair-
ment is considerably less severe, and there was
virtually no testimony at the coram nobis hear-

854 FEDERAL REPORTER, 2d SERIES

both at the trial level and on direct appeal.
After reviewing the record, we believe that
petitioner’s counsel in the Alabama state
court system performed admirably in for-
mulating and pursuing petitioner’s defense
strategy at trial and on appeal. We there-
fore find that petitioner has failed to satis-
fy both the performance and the prejudice
prongs of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).14

III.

We conclude that none of petitioner’s
contentions has merit. The district court’s
denial of the petition for habeas corpus is
therefore

AFFIRMED.

© © KEY NUMBER SYSTEM

sums

Arthur James JULIUS,
Petitioner—Appellant,

Vv.

W.J. JOHNSON, Warden, Holman Unit,
Respondent-—Appellee.

No. 86-7589.

United States Court of Appeals,
Eleventh Circuit.

Aug. 19, 1988.

Thomas M. Goggans, Montgomery, Ala.,
for petitioner-appellant.

ing that petitioner could not comprehend his
rights.

14. Petitioner also argues that the district court
abused its discretion by failing to conduct a
hearing on all aspects of the petition, particular-
ly on the ineffective assistance of counsel claim.
We disagree. The state court conducted an evi-
dentiary hearing, which included the ineffective
assistance claim. Petitioner identifies no partic-
ular need for another hearing except to make
sure that the district court “appreciate the mag-
nitude of the ineffective assistance issue.” This
is not enough to meet petitioner's burden of
establishing a need for an evidentiary hearing.
See Collins, 728 F.2d at 1344-46; Birt v. Mont-
gomery, 725 F.2d 587, 591 (11th Cir.) (in banc),
cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83
L.Ed.2d 161 (1984).


DUNKINS v. THIGPEN

399

Cite as 854 F.2d 394 (11th Cir. 1988)

also be intelligently made.” Miller v.
Dugger, 888 F.2d 1530, 1588 (11th Cir.1988)
(emphasis in original). Mental illness,
moreover, is a factor to be considered by
the trial court when ruling on the validity
of a waiver. Id. at 1589; see Cooper v.
Griffin, 455 F.2d 1142, 1145 (5th Cir.1972);
McClure, 786 F.2d at 1289.

[6,7] Applying Burbine and Miller to
the facts of this case, we find that petition-
er’s waiver was both voluntary and intelli-
gent. Mental retardation does not by itself
prevent a defendant from voluntarily waiv-
ing his constitutional rights. See Colorado
v. Connelly, 479 U.S. 157, 107 S.Ct. 515,
523-24, 93 L.Ed.2d 473 (1986). The volun-
tariness of a Miranda waiver depends on
the absence of police overreaching, and not
on any broad sense of “free choice.” Jd.
107 S.Ct. at 528; see United States v.
Scheigert, 809 F.2d 1582, 1533 (11th Cir.
1987). Petitioner does not argue on appeal
that his confession was involuntary due to
any police overreaching or coercion.’ We
hold therefore that petitioner’s waiver of
his Miranda rights was not involuntary.

We also hold that petitioner’s waiver was
knowing and intelligent. The issue of peti-
_tioner’s ability to understand his Miranda
rights and competently waive them was not
specifically raised at trial. Petitioner
presented no psychiatric evidence to the
trial court. Cf Cooper, 455 F.2d at 1143-
44 (defendant presented testimony of four
special education teachers at suppression
hearing); McClure, 786 F.2d at 1289 (de-
fendant presented testimony of a clinical
psychologist at suppression hearing). In-
deed, the evidence before the trial court at
the suppression hearing indicated that peti-
tioner behaved in such a way that he un-
derstood his rights and waived them know-
ingly and voluntarily.!° On direct appeal,
the Alabama Court of Criminal Appeals
agreed:

9. In his petition for rehearing, petitioner asserts
for the first time the existence of police over-
reaching as a basis for finding his confession
involuntary. Because petitioner did not make
this argument to the court earlier, it is not
before us now.

10. There was no evidence of petitioner’s low IQ
or any other mental impairment at the suppres-
sion hearing or at trial. Although there was

We have thoroughly reviewed the totali-
ty of the circumstances surrounding both
statements given by the defendant, in-
cluding the facts that he was nineteen
years old and almost illiterate. Our as-
sessment of these facts convinces us that
both statements were completely volun-
tarily given after a knowing and intelli-
gent waiver of constitutional rights.

Dunkins v. State, 487 So.2d 1349, 138538
(Ala.Crim.App. 1983).

The claim that petitioner did not make a
knowing and intelligent waiver because he
was “moderately retarded and functionally
illiterate” first appears in his coram nobis
petition. Petitioner also introduced for the
first time a psychiatric report from Bryce
State Hospital. The report stated:

[Mental examination] revealed no delu-
sions or hallucinations, though he did
have a preoccupation with his legal situa-
tion and the possibility of going to jail
concerned him greatly, but in an appro-
priate way.... [Petitioner’s] judgment
and insight were fair; attention span and
memory were within normal range; cal-
culations and general information store
were within normal range.

The psychological assessment revealed
that Mr. Dunkins is functioning at the
high mild range of mental retardation
with his adaptive behaviors falling within
the borderline range. Test results are
not suggestive of organic impairment.

At the coram nobis hearing, petitioner’s
trial counsel testified that petitioner’s par-
ents told him that petitioner “didn’t have
any real problems other than being slow.”
Petitioner’s trial counsel also testified: “I
never had any real trouble communicating
with him. He was able to discuss fully
with me the events....” ™

Faced with this evidence, the coram no-
bis court ruled that petitioner’s confession

testimony that petitioner could not read, he had
his rights read to him. Petitioner indicated that
he understood his rights and knew he was waiv-
ing them in order to tell his version of the
events.

11. Petitioner's trial counsel considered raising
an insanity defense, but decided against this
strategy as potentially inflammatory. We reject
petitioner’s claim that his decision constituted

qQOmnnii

. tarded inmates may also b

2 cases test ruling
on execution of

retarded killers

By Peter Applebome | r

New York Times

ATLANTA — Less than a month
after the Supreme Court ruled that
states could execute murderers who
were mentally retarded, two execu-
tions scheduled within 36 hours of
each other are focusing attention on
the complex issues raised by the
court decision. |

The Georgia Supreme Court, in a
4-3 vote Wednesday, issued a Stay of
execution for Son H. Fleming, 59,
five hours before he was to die for
the 1976 killing of a police chiéf.

Early Friday morning, Alabama is
scheduled to execute Horace Frank-
lin Dunkins Jr., 28, convicted of rape
and murder in Warrior, Ala., in 1980.

Both men are classified as {mildly
retarded, with intelligence quotient
scores below 70 and mental dévelop-
ment below that of a 12-year-old.

Both were accused of especially

‘ brutal crimes that outraged their

communities, both were convicted
and sentenced by juries that were
unaware of their retardation and
both are blacks convicted of! j Killing
whites.

And both cases, the titel enacts
tions of retarded people scheduled
since the Supreme Court ruling, re-
flect many of the difficulties dnd am-
biguities of determining who is men-
tally retarded and what efféct) ‘that
has on criminal behavior.

Paradoxically, the Supreme Court
ruling allowing the execution of re-
their

The court ruled on June 26 that
the Constitution allowed statés to ex-
ecute mentally retarded murderers,
but the justices also said juries were
required to consider a person’ s men-
tal disability before imp sing a
death sentence.

Lawyers for Fleming and Dunkins
are invoking that reasoning}in con-
testing the death sentences. | -

In both cases, the questio s about
mental competence have beén over-

best hope for a reprieve. :

shadowed by revulsion 0 er the
crimes.
Criminal justicé experts éslimate

that 10 percent of the inmates facing
executions nationally are rétarded,
but many have not been evaldated so
the experts view the figui eas a
rough estimate.

Stephen Bright, director of the
Southern Prisoners Defense Com-
mittee here, which represents in-
mates in 11 states, said overworked
and underpaid court-appointed law-

i
4
rm
i

a

yers in capital cases seldom had the
time, knowledge or resources to ade-
quatesly document mental retarda-
tion in their clients. .

And he said the courts seldom had
the expertise to evaluate such cases!,

“The problem is that no one knows
anything about this stuff,” Bright
said “There are very few specialist§
who know what being mentally re-
tarded is, and ‘how it affects a per-
son’s ability to reason and to make
judgments.”

Fieming, whose execution had
been delayed twice before Wednes-
day’s ruling, was convicted of the
197¢ murder of Ed Giddens, the 29-
year-old police chief of a small town,
Ray City.

Giddens stopped a car driven by
Fleming but was apparently un-
aware that he and two other men
had committed a robbery earlier.

The officer was overpowered, shot
several times in the head and his
body was dumped in a swamp. One
other man has been executed and
ahother given a life sentence in the
case.

Dunkins was convicted of raping
and killing a 26-year-old mother of
four in 1980. She was stabbed 66
times.

. Fleming was schéduled to die at 7
lpm. today, but after the Georgia
‘Board of Pardons and Paroles re-
‘fused to commute his senténce tb
life in prison on the basis of the new
arguments, the Georgia Supreme
Court ordered a stay while it consid-
ereithe case. .

The Georgia Legislature banned
executions of the mentally retarded
last year but did not apply the law. to
inmates already sentenced. }

The two cases are both typical and
troubling because they deal with ant-
biguities about what constitutes men-
tal retardation.

Fioth men have IQ scores just be. |

‘low 70, which puts them near the iby
per end of the range of the mild
mentally retarded.

(In Fleming’s case, Georgia is quae.
tioning whether his IQ is below 70. In

Dy skins’ case, Alabama Officials ey

“his 1Q is so close to the upper end of |

the scale of retardation as to make
the distinction unimportant.

Dr. Norman Ellis, a professor of
psychology at the University of Ala-
barna, said the cases reflected the
difficulty of the issue in courts.

“The problem is, you’re dealing
with a continuum here rather than
an all or nothing distinction,” he
sail.

i]

‘ourt blacks

y

i

The Sacramento Bee Finai - Thursday, July 13,1989 A7


I ust hope he was unconscious and did not
Suffer,” said Alabama’s prison commis-
sioner, Morris Thigpen, about the electric
chair misfire in the execution of Horace
Franklin Dunkins, Jr. ;

What a strange and incongruous sentiment
to*utter 19 minutes after the switch was

“Sores + mpetgi nee

thrown. Is it a sign of some deep-seated moral

queasiness over the act of execution? Proba-
bly: not. 3

‘Qpponents. of capital punishment simply
don’t buy the hair-splitting about humane
executions, but there are plenty of people who
do; including, apparently, the commissioner.
The bottom line for proponents who want to
believe that executions can be handled hu-
manely is that the act is intended to be one of
elimination — of disposal, riddance from
society’s concern, not one of inflicting suffer-
ing, Texas, among other states, switched to
lethal injection for that reason, and some
lawmakers in Ohio want to offer a choice.

~Of course, there are those who find revenge
cathartic — those who can’t imagine why Mr.

Thigpen is wringing his hands about the

A Problem Execution

possible suffering of a convicted killer.

But there was something more disturbing
about this state execution, if indeed there are
degrees of acceptability in such a gruesome
business. The Dunkins death sentence was
controversial beyond the argument of taking
a life. He was, according to court records,
retarded with an IQ of only 69. Mental defi-
ciency is a condition that our society does not
handle very well, even if it is benign.

Did Dunkins’ low level of intelligence make
it easier or more difficult to find him guilty?
It is a chilling thought to consider that death
is the best solution we have for someone of his
mental incompetence, even ‘though in this
particular case the jury obviously felt that the
horror of his crime outweighed other consid-
erations. !

As for the jail guards fumbling with re-
versed jacks to get it right the second time, an
apology is an exercise in futility. Executions
as yet have not become mass-production busi-
ness. There was ample time to prepare for the
event. To be ill-prepared is a form of noncha-
lance too callous to contemplate.

THE BLADE'S

Pages of Opinion

TOLEDO, 0., THURSDAY, JULY 20, 1989

PAGE 10


‘e—six bucks each.

n her penthouse.

—.. REKKING

me for rekking your
ie burglar’s typewrit-
not know it was your
~r, Your very beauti-
2 beauty Lola Montez
of jewelry missing.

Says sugar heir dragged her by her hair.

i) t bs

Fifth down in N. Y.'s Greenwich
VILLAGE. FOLLIES

™@ New yorK cops had trailed the five bandit
suspects for months. -Then one night the
five of them finally. went out ‘on 4 job.”
A number of jobs it turned out. Five Loft
and Squad men, as well as 35 cops, trapped
them in Greenwich Village—in the act (see
left). One boy, Louis Jacobs, 24, tried to
escape. He leaped from a third story window
20 feet to the roof of an adjoining building;.

Village.

was badly injured (above)—was lowered .

from roof. The others: Larry Quartero,
Joe Navarra, Louis” Selli and Tom Ryan.

—

SUGAR DADDY

@ ACTRESS KAY WILLIAMS wanted to visit
their children. But their daddy, Kay’s ex-
husband, Sugar heir Adolph Spreckels didn’t
approve. Spreckels, she claims, beat her with

her own shoe, dragged her by her hair and:

threw her out of his Balboa, Cal., home.

Arsenic poisoner of her two-year-old niece—the child was insured for $5,500.

AUNTIE ARSENIC

M™ MRS. EARLE DENNISON was, the first white woman ever to be executed by the state
of Alabama. She had poisoned her two-year-old niece for the insurance money. Up
until the last minute Governor Gordon Persons received pleas for clemency from the
condemned woman. Her last--hearing was just 14 hours before she was scheduled to
die. But Governor Persons saw no reason to interfere and Mrs. Dennison, went to
the chair as scheduled. She is shown (above) entering Kilby Prison at Montgomery

continued on next page 9


Polly Ann Weldon, 2, was suddenly taken
ill; “she died, despite her aunt's vigil

"Don't worry,” she said. "Little Shirley Diann will be
quite all right.” But she hurried to pay the premium on
the child's insurance, lest it lapse before deuth struck

(RUE Jess Uo

idan!

Vv


MEDIA ACCOUNT
OF TRIAL:

MEDIA ACCOUNT
OF EXECUTION:

METHOD: Electrocution . TIME: AM
STAYS OF

EXECUTION:

EXECUTIONER:

WITNESSES:

RITUALS:

LAST WORDS: God has forgiven me for all I have done. I have forgiven

everybody and I hope everybody has forgiven me.

OTHER INFORMATION:

Earle was the first white woman to be strapped into an electric
chair in Alabama


Risk?
ay
ia?

+amhen jy 57
| DiENNISON, Barle, white, elec., Ala., Kilby (Elmore) September 4, 1953.

—_—>
The pretty thing at right is Lola Montez of television |
i, : fame, who poses attractively to show how a ‘burglar ;

climbed into her New York apartment to steal jewelry and
help himself to liquor. He left a note: "Lola: Please for-
give me... !am an admirer of yours. Your very beautiful."

\

+58

Tragedy caught by the camera... Ai Tong Wang is seen

‘the weeping bitterly in New York curio shop after she found
| ized body of her husband, Stephen Wang, Chinese importer,
| our shot dead in rear of store. Nothing seemed to have been

ree. stolen, and police were seeking motive as well as killer.

oe

II

3 PLA et SR I BPM SW.

In Montgomery, Ala., Mrs. Earle ‘Dennison enters Kilby
Prison to await her date with the electric chair. Mrs.
Dennison, 55, was convicted of the arsenic slaying of her
niece, Executed a few days later, she became first white
woman to receive the extreme penalty in Alabama.

Iara,

itdeh nineteen ee


‘THE NURSE INVESTED IN ARSENIC |

42

BY JACK D’ARCY

Poison was inexpensive. So were

insurance policies. The rewards were

$5000 for each victim,

with a bonus—the electric chair

HOW KILLERS DIE

#14 in Series

SR OE

September 3rd, 1953, 141 criminals had been
executed in Alabama’s Kilby Prison in Mont-
gomery. Some of them had been murderers, some
rapists. Some of them were male, some female.
Some of them were colored, some were white—
but none had ever been a white woman. But now,
as the clock struck 11 on September 4th, this
precedent hung in the balance. On the other side of
town, in the governor’s mansion, Alabama’s chief
executive, Gordon Persons, sat at his desk, studying
the documents, the transcript of the clemency hear-
ing which was held before him that afternoon.
One of the telephones on his desk was directly connected
with the office of the prison warden. Governor Persons
was pale and weary. He could feel the responsibility upon
him as if it were a tangible weight. Whether or not: Ala-
bama would electrocute its first white woman was a matter
for him to decide. He held her life in one hand, her death
in the other.
Finally, he made up his mind. His face was grave as
- he picked up the telephone and said, “Kilby Prison.” Less
than a minute later, the warden was on the wire. The
governor solemnly announced his decision. Then, he said,
“God bless Mrs. Dennison’s soul,” and hung up the re-
ceiver.
Two women sat in a tiny cell just off Death Row at
Kilby. Kilby is a men’s penitentiary with no accommoda-

W seni THE CLOCK STRUCK midnight on

Sheriif

tions fo
Dennisc
Row pr:
of her
who ha
for Wo:
Mrs.
looked
feature
blue ac
heeled
anxiety
whispe:
office a
The »
soon as
to leave
Earle
her arr:
matron’
Footf:
Dennisc
A mom
the bar:
to unlo:
ministe:
Earle
gaze.
shook }
very so)
Earle


midnight on
als had been
ison in Mont-
derers, some
‘ome female.
ere white—
in. But now,
er 4th, this
other side of
bama’s chief
esk, studying
mency hear-
fternoon.

ctly connected
ernor Persons
msibility upon
‘ror not Ala-

was a matter
ind, her death

was grave as
Prison.” Less
he wire. The
Then, he said,
ng up the re-

Death Row at
90 accommoda-

Po Seubesaiiereee s

ws

tions for the other sex. For reasons of privacy, Mrs. Earle
Dennison had been assigned to quarters outside of Death
Row proper. Now she sat, quiet and haggard, on the edge
of her cot. Seated next to her was an efficient matron
who had been borrowed from the nearby Tutwiler Prison
for Women. A stolid guard stood outside the cell.

Mrs. Dennison was a widow of 55. At the moment she
looked much older. She was thin, with sharply chiseled
features. Her hair was frowsy and tousled. She wore a
blue denim prison dress, no stockings, and a pair of high-
heeled shoes. Her face revealed an expression of nervous
anxiety. “Why haven’t we heard from the governor?” she
whispered to the matron. “Why don’t you go to the warden’s
office and ‘see if he’s heard anything?”

The matron shook her head. “They’ll let us know as
soon as they hear,” she said. “You know I’m not allowed
to leave you.”

Earle Dennison did know it. On two occasions, since
her arrest, the widow had attempted suicide. One of the
matron’s duties was to see that she didn’t try it again.

Footfalls sounded along the concrete corridor. Earle
Dennison looked up. Desperate hope shone in her eyes.
A moment later, she saw the Protestant chaplain through
the bars of the door. The chaplain signaled to the guard
to unlock the door. The steel portal swung open and the
minister entered the cell.

Earle Dennison looked at him, wild inquiry in her
gaze. The chaplain put a hand on her shoulder. He
shook his head gravely. He said, “I’m sorry, Earle. I’m
very sorry. Let us pray together.”

Earle Dennison fell to her knées on the cold, concrete

ly Ann

floor beside the chaplain, tearfully called upon her God.

Although Mrs. Dennison was shaken almost to the point
of hysteria through contemplating her own death, death,
in general, was no stranger to her. Professionally, she
was a registered nurse in charge of the operating room
at Wetumpka General Hospital, situated just outside
Montgomery. The doctors considered her competent and
efficient. The patients thought her kind, gentle and
amiable. She grieved when her patients died; she was
sympathetic when they suffered pain.

In 1950 Earle Dennison underwent two personal trag-
edies. In October her husband, Lemuel Dennison, died.
His widow mourned him deeply. She visited his grave
daily, wept silently, and strewed the tomb with flowers.
Then, a month later, she was stricken again—this time by
the death of her favorite niece, Polly Ann Weldon, who was
but two years old.

Polly Ann was the daughter of Gaston and Cora Belle
Weldon. Mrs. Weldon was the sister of Earle Dennison’s
lately deceased husband. Mrs. Dennison seemed to take
Polly Ann’s sudden death from food poisoning even harder
than she had taken that of her husband.

Later that year, another daughter was born.to the
Weldons, another girl, whom they christened Shirley
Diann. Earle Dennison quickly became attached to her
new niece. It seemed that her love for the infant had
helped banish her grief over the death of her husband and
Polly Ann. She lavished presents and affection upon the
child. “I’m financially secure,” she once told the little girl’s
mother, “and I have no one to leave my money to. Shirley
Diann must have the best kind (Continued on page 66)

43


« $6
‘
5
‘
T
t 0
94

CASE FILE

Some recent cases brought you by
TRUE DETECTIVE had not finally
been disposed of when the issue
went to press. To keep our readers
informed, we will bring you in each
issue of TD a Case File report.

ALABAMA'S BORGIA” ~~
(January, 1953)

Her gift to her little niece, two-
year-old Shirley Diann Weldon, on
May Ist, 1952, was inexpensive. It
cost Mrs. Earle Dennison only ten
cents—the price of a small amount
of sodium arsenic. But to Mrs. Den-
nison it was worth $5,000—the
amount of an insurance policy she
carried on Shirley’s life, with her-
self as beneficiary. The child died
that night and an autopsy disclosed
the cause—arsenic poisoning. Faced
with the evidence of her purchase
of the poison and the insurance
policy, Mrs. Dennison, a nurse
for 20 years, confessed not only to
the murder of Shirley Diann, but
the similar slaying of her sister,
Polly Ann Weldon, two years ear-
lier. On September 4th, 1953,
after her plea to the governor for
clemency failed, Mra, Earle Denni-
son died in the electric chair im
Kilby Prison, Montgomery, Ala-
bama, with the dubious distinetion
of being the first: white woman in

Alabama to be electrocuted.

DEATH ON THE
INSTALLMENT PLAN

(June, 1953)

Mechanie Ernest Storch, 50, of
Zelienople, Pennsylvania, wanted

to be free of his wife, Alice, 49.
A divorce would cost him money
and property and with those he did
not wish to part. In a drab saloon
in Pittsburgh, Storch plotted with
Richard Waines, 24, Walter Hen-
derson, 26 and Ruasell Budd, 26,
to accomplish the death of | his
wife. At intervals he paid them
sums of money, ‘promising more
when the deed was done. Alice
Storch was slain in her home on
February 25th, 1953. Detectives
unraveled the gruesome plot and
Storch confessed. A jury of 10
men and 2 women found him guilty
us accessory to first-degree mur-
der, recommending life imprison-
ment. Henderson and Budd were
sentenced to life imprisonment.
Haines is still to be tried.

UNHOLY ALLIANCE
(August, 1953)

A triangle situation, involving Ed-
ward Arthur Thompson, 30, a
Houston, ‘Texas, mechanic, — his
wife, Bessie and his friend, Rufus
Dee Lunsford, resulted in the slay-
ing of Thompson on April 20th,
1953. His body was found in the
bayou near the Jackson bridge, a
bullet hole in his head. Lunsford,
charged with the murder, claimed
that he had shot his friend in self-
defense. At his trial the jury re-
fused to bring in a verdict carrying
the death penalty and Lunsford was
sentenced to serve 40 years for the
slaying of Edward Arthur Thompson.

blond young man who had walked away
from the honor farm of the Indiana state
reformatory at Pendleton on June 5th was
23-year-old) William) ‘Townsend, serving a
2-to-21-year term for a rape committed in
Huntington, Indiana, in 1949.

Townsend's previous criminal] record in-
cluded a jail term for larceny in South
Carolina in 1946, and a suspended penal
farm sentence for assault and battery in
Indiana, before his arrest in 1949,

His father was a minister of the Pente-
costal Church and lived in Logansport,
Indiana. He had neither seen nor heard
rom the son since his prison escape.

On the strength of testimony by Dottic
indwall, on August 19th, a grand jury
Jackson County, Missouri, returned a
sdcret indictment charging Townsend with
murder of Father Hodges. A federal
rrant was issued for him on grounds

murder charge, and a similar warrant
followed the filing of charges against him
Ralls County in the wounding of Bunfill.
t the same time, a federal charge of

and the FBI put out a flier, bearing a
tograph, asking that Townsend be held

special search was made for Townsend
uisville and St. Louis, and in Logans-
port, Indiana, where his father had been
ng in a trailer near his church.

n Saturday afternoon, August 22nd, a
trgck driver paused in a tavern at the
e of Logansport.

‘Something’s bothering me,” he con-
f¥led to the bartender. “T pave ai kid a
ft into town, and never ino my life did I
see such a scary mug. It’s got me thinking
—maybe the cops are after the guy.”

The barman whisked a newspaper, the
previous day’s edition of the local daily,
from under the bar. On its front page, be-
neath a black banner headline announcing
the search for young Townsend, was the
fugitive'’s picture.

“He look anything like this?”

The trucker stared at the _ likeness.
“Great, jumpin’ —. That's the kid, the
same one.”

A phone call to police sent carloads of
FBI agents, state troopers and city cops to
the parked trailer. The door was locked.

The officers surrounded the trailer,
smashed through the door and caught Wil-
liam Townsend in the act of removing his
shirt. He was alone.

Townsend was unarmed and attempted
no resistance. Taken to South Bend, the
seat of the northern Indiana federal judi-
cial district, he was lodged in the St. Joseph
County jail and questioned for nine hours
by FBI men.

He admitted that he was a fugitive from
the Indiana reformatory, but would say
nothing more. He denied ever having
been in Missouri, Kentucky or Pennsyl-
vania. He insisted that he had never
heard of Rocky Jackson, or Jake Trout,
John Hickey, Harold Ellis, or Dottie Lind-
wall.

Then Detective Sergeant Frank Bennett
arrived from Kansas City to quiz Town-
send, ostensibly not about the Hodges slay-
ing, but about a number of robberies.

Townsend’s first sign of weakening came
when he confessed the robbery of the
truck driver at Wentzville. But once his
tongue was loosened he suddenly broke.

“You're a right guy,” he told Bennett. “I
might as well spill my story. I know you
got Dottie, and made her talk. She'll have
to finger me. If I talk, will you see she
gets a break? She’s a good kid. She
never was in on our deals.”

Then Townsend confessed the murder
of Father Hodges.

Upon leaving St. Louls on July 14th, he

Toure Lelyetir
Abearute 7S

said, he had hitched a ride to Kansas City.

He was dropped on Linwood Boulevard
—U. S. 40--on the cast side of Kansas City,
ond couldn't get a ride into town, he said
This was Wednesday, July 15th.

He decided to return to St. Louis and
thumbed a ride in a 1952 Pontiac driven
by a heavy, bespectacled man in blue
sports attire A few miles out of the city.
the suspect continued, the motorist stopped,
saving he wanted to visit a friend, recent-
ly released from the hospital, who lived
in a cabin down by the river. He asked
Townsend to go with him, offering to drive
the hiker on toward St. Louis afterward.

Townsend said he followed the man
down the river bank, through the under-
growth. A stick or limb suddenly hit him
in the neck, he said, angering him. Town-
send said he’d had trouble keeping his
temper because of severe headaches that
followed his injury in the boxing ring
while at the reformatory. In a blind fury.
Townsend declared, he pulled out the .38
and shot the man.

“The next thing I remember,” he said in
a statement, which he later signed, “I was
walking down the highway. It was rain-
ing. I had the revolver in one hand, a
beaded rosary in the other.

“I realized then that the man I had shot
was a man of the church. I Jooked in my
pants pocket and I had a billfold with a
driver's license in it. The license had the
name, Reverend Robert Hodges.”

The wages of the slaying, Townsend said,
were $13 he found in the wallet.

Townsend continued to deny participa-
tion in the holdup-shooting of Private
Bunill near New London, Nevertheless
he was arraigned on a federal fugitive
warrant charging him with illegal flight
to escape prosecution for Bunfill’s shoot-
ing. Bond was set at $25,000. He was
also arraigned on two federal warrants
from Louisville, charging him with Dyer
Act violations in the theft of two cars.
Bond was set at $12,500 on each warrant.

These, however, seemed of relatively
minor importance after the federal pov-
ernment surrendered Townsend to Mis-
souri authorities for prosecution on mur-
der charges. He was flown to Kansas City
in a police plane, on August 23rd, to
answer for the death of Father Hodges.

“You know, it's funny,” Townsend phi-
losophized. "On August 23rd, 1949, To was
sentenced to from two to twenty-one years
for rape in Indiana. Here it is August
23rd again, and now I'm preparing to sign
my life away.”

In the meantime, the police still were
investigating the other members of the
auto theft ring, as a result of the story told
by Mrs, Lindwall,

Was it true that each of the gang was 4
killer? Could these men have been re-
sponsible for the strange, still unsolved
murders on the Pennsylvania turnpike?

A lie detector test indicated that the
pretty divorcee was telling the truth—or,
at least, what she believed to be the truth.

A preliminary investigation, however,
led Pennsylvania state detectives to de-
clare that they believed the car theft gang
in the clear with regard to the killings of
the two truckers. In St. Louis, a probe
was continued into other slayings the gang
may have committed.

One member of the theft ring was still
at large at the time of Townsend's capture.
An uncle of the young man, he was being

sought by the FBI. o¢o¢
\
EpitTor’s NOTE:
The name, Dorothea Lindwall, as

used in the foregoing story, is not the
real name of the person concerned.
This innocent person has been given a
fictitious name to protect her identity.

|

a

7)


0

NOG

LOVE SWINDLERS |

(TD July, 1952)

The woman who discovered that she
had been the victim of a pair of confi-
dence men could afford to lose the money
it had cost her and thus avoid distasteful
publicity and gossip throughout Texas.
But she came of fighting stock. “I want
those two swindlers found and prose-
cuted,” she told the assistant United
States attorney at El Paso. “If I can
bring them to justice and prevent their
victimizing other women, it will be
worth the humiliation.” .

The two men, Victor Emanuel Periera
and Eugene H. Brading, had not ex-
pected such an outcome. Usually their
victims remained silent. In January,
1952, they went on trial in United States
District Court and on January 15th the
12-man jury returned a verdict finding
Periera and Brading guilty on one count
charging mail fraud, one count charging
interstate commerce in money fraudu-
lently obtained, and a third charging
conspiracy. Each was sentenced to 12
years in prison. On February Ist, 1954,
the United States Supreme Court af-
firmed the convictions.

BLONDE JUSTICE

(TD April, 1953)

During a bold, daytime burglary of a
jewelry store in Buffalo, New York, on
December 9th, 1952, Donald Hurd,
owner of the store, was slain and two
of his employes were brutally beaten.
The thieves fled with $40,000 in gems.

Expert detective work put police on
the trail of Maurice (Digger) O’Dell,
28, and Walter Griffen, 27, and two days
later the two men were arrested at their
homes in Hamilton, Ontario. Both
were extradited to the United States
and, the following spring, a Buffalo jury
convicted the two men of the murder of
Donald Hurd.

On January 7th, 1954, O’Dell and

Griffen were put to death in the electric ©

chair at Sing Sing. They were the first
residents of another country to die in
the electric chair. They also were the
first to be put to death by New York
State’s new executioner, whose identity
is withheld. Since relatives stated that
they did not wish to claim the bodies of
the executed murderers, they were
buried by New York State. ”

In accordance with his last expressed
wish, the eyes of Walter Griffen were
turned over to the New York City Eye
Bank, prison officials disclosed.

10

on cases published by TD

Report of latest legal developments

ALABAMA'S BORGIA

(TD January, 1953)

As reported in Case File for December,
1953, Mrs. Earle Dennison was executed
in the electric chair in Kilby Prison,
Montgomery, Alabama, on September
4th, 1953, for the insurance policy mur-
der of her 2-year-old niece, Shirley Wel-
don.

On March 5th, 1954, a Circuit Court
jury in Wetumpka, Alabama, awarded
the parents of the poisoned.child $75,000
damages in their suit against three com-
panies which had insured the little vic-
tim with her aunt as beneficiary.

EVELYN LEICK

EVELYN AND THE STRANGLER

(TD April, 1954)

Declared sane at the time his wife,
Evelyn, 26, was strangled in their auto-
mobile on the night of December 1st,
1953, LeRoy Leick, 30, was found guilty
of her murder and the District Court
jury set the penalty at death in the state

_ prison’s gas chamber.

Leick, sales manager in a Denver,
Colorado, salvage brokerage, had a rec-
ord of one arrest for theft. Since that
time his record had been clean. It was
charged that Leick had entered into a
plot with Gene Dukes, a fellow employe
at the brokerage, to stage a “holdup” at-

fhe

tack on the street near the Leick home,
during which Leick was to be beaten up.
Dukes claimed that when he carried out
his part in the plan, he did not know
that Evelyn was to be killed. But the
jury found the 20-year-old youth guilty
and recommended life imprisonment.

| DIDN'T WANT TO KILL
ANOTHER GIRL

(TD February, 1954)

Reik Slierendregt, 22, a lovely little
blonde, came to America from Holland
in 1950, seeking to make a better life
for herself, her parents and sisters. Reik
worked and studied and eventually the
family was reunited in Salt Lake City,
Utah. But on July 1lth, 1953, tragedy
struck down the young girl. Lurking in
the shadows. outside the home of her
employer, a man attacked and slew her
with a knife.

Leon M. Livingstone, 25, counterman
in a service station, who was picked up
in a panty raid on neighborhood clothes-
lines, confessed the murder and admitted
that he had tried to rape four other girls.

On February 11th, 1954, a jury found
Livingstone guilty of first-degree murder,
recommended leniency. On February
20th, in the Third District Court, Judge
A. H. Ellett sentenced Livingstone to life
imprisonment in Utah State Prison.

DIVORCEE IN THE BATHTUB

(TD December, 1952)

In Houston, Texas, on the morning of
July 25th, 1952, the body of Mrs. Cleora
McCord was found, fully clothed, lying
in the water-filled bathtub of her apart-
ment. In her neck and abdomen were
13 stab wounds, presumably made with
an ice pick. She had died of internal
hemorrhage.

On August Ist Gerhard A. Cordes,
52, a sweetheart of the slain divorcee,
was indicted for murder by the Harris
County Grand Jury. His trial ended
with a sentence of death in the electric
chair. Because of an error in court
procedure the Court of Criminal Ap-
peals in Austin, in March, 1953, granted
him a new trial. On November 18th,
1953, the second jury found Cordes
guilty, but this time he was sentenced
to life imprisonment. His attorney, W.
E. Martin, filed another appeal.

Cordes insists that he is not guilty of
the slaying of Mrs. McCord, who had
told him that she no longer loved him.
He asserts that he signed a confession
only to protect another woman friend.

La pSPAEA +

ene KTEY


the money for

head thought-
rave the empty
ossible that the
em, somewhere
ing plant.”
d have the bot-
1ed them to the
ok them along
laboratory for
trace of arsenic

nsulted Circuit
ston. “I think

poisoned,” he
arsenic in the
s no trace of it
sre was quite a
a’s plastic cup.
arsenic in that

said Huddleston.
I hear only the
cup. You’re not
of murder, are

mpossible,” said
heck it out. I’m
ugstores, collect
rsenic buyers.”
yu might as well
s, too.”

awyer, question-

, “if Earle killed
ne suddenly mad
gain. The only
I see it, is if she
on the little girl’s

said Holley. “T’ll

t, if Earle Denni-
rderess, she cer-
a of it. To her
3, she seemed ter-
ith of her niece.
s at the hospital
cation. But Mrs.

ver,” she said. “If
vork, I can forget

ie hospital. She
the wards were

olley visited the
cut found nothing

on the poison
! citizens beyond
en he came to
ade a significant
e name of Earle
ago, she had pur-
¢ sodium arsenate
that she “wanted

office in a state
Even though he
sugh to check on
lid hardly believe
‘se had actually
»w, most assured-
circuit solicitor’s
insurance agents.
» for him. Elmore
1ere rumor trav-
to the ears of
rance man, that
i the soda which
thought the mat-
he sheriff’s office.
‘le Dennison held
ring the life of
for $5000. The
‘d up to and in-
a the little girl
o the policy was
after that, the
sed. Moreover, I
snother policy on

el

the child’s life, a policy issued by Cecil
Bailey over in Deatsville.”

Holley expressed his gratitude for this
information and promptly drove over to
Bailey’s office in Deatsville. He ques-
tioned the agent about Mrs. Dennison’s
policies.

“Yes,” said Bailey. “She had the Weldon
child insured with me for $500. Ordinar-
ily, I wouldn’t have thought anything
about it. But she sure made that last pay-
ment in a hurry. I intended to drive
over and talk to you about it.”

“What do you mean by her making the
last payment in a hurry?”

“Her premiums were overdue. How-
ever, there was a period-of-grace clause
which kept the policy in effect until May
lst. The premium had to be paid on
that day. It was. Mrs. Dennison paid it
exactly five hours before the little girl
died.”

“And you thought that odd?”

Bailey nodded. “I thought it all the
more odd because I knew that she had
policies totaling about $5000 on Shirley
Diann’s sister, Polly Ann. That was the
Weldon child who died two years ago.
She obtained these policies from an agent
in Wetumpka. I think you should check
on that.”

Holley paid a call on the Wetumpka
insurance agent. He corroborated Bailey’s
story. “Sure, she had the policy,” he said,
“and we paid it. We certainly never

suspected anything. Why, she’s considered

a real pillar of this community.”

Holley drove to the solicitor’s office.
“Earle Dennison,” he announced, “bought
a dime’s worth of arsenic three weeks ago.
Shirley Diann was insured for some $5500
in her aunt’s favor.”

“Then,” said Huddleston, “you think
she killed the girl?”

“I think she did more than that. I think
she also killed Shirley Diann’s sister. I
want an exhumation order.”

Huddleston telephoned the hospital
where Polly Ann Weldon had died two
years before. He asked that the death
certificate be read to him. That certifi-
cate stated that the cause of the child’s
death had been food poisoning.

“It sounds as if you’re right,” said Hud-
dleston. “I’ll get the exhumation order.
Ask Doc Rehling if he’ll examine the
body right away.”

Shortly after noon of May 8th, Dr.
Rehling informed the solicitor and the
sheriff that the body of Polly Ann Weldon
definitely contained arsenic. Two hours
later, Sheriff Holley drove out to Mrs.
Dennison’s home to inform her that she
was under arrest for murder.

She indignantly denied that she was con-
nected in any way with the death of the
Weldon children. She insisted upon her
innocence when, late that afternoon, she
was taken before Judge Edwin Stanford
and charged with double murder. Stan-
ford heard the sheriff’s damning circum-
stantial evidence and ordered Mrs. Denni-
son held, without bail, for action by the
Elmore County grand jury. She was re-
manded to Tutwiler State Prison for
Women.

In spite of the judge’s order, she did
not remain there long. On the morning
of May 9th, a matron, bringing Mrs.
Dennison’s breakfast, found her prisoner
unconscious on the floor of her cell.

She was rushed to the hospital where it
was found that she had swallowed a dozen
powerful barbiturate pills which she had
smuggled into the jail. Her stomach was
thoroughly pumped out and two days later
the doctors sent her back to jail. She
was placed in a maximum security cell.
Her clothing was searched and a special
guard was put on her. She spent a lonely,
brooding week. She hardly spoke. She
paced her cell at night and, finally, she

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66

The Nurse
Invested in Arsenic
(Continued from page 43)

of education. I promise I’ll see to that.”

The Weldons, farmers whose income was
limited, were happy and grateful.

On a hot afternoon, that of May Ist, 1952,
Earle Dennison drove from the hospital
in Wetumpka to the Weldon farm in the
Claud community, some 9 miles away.
When she arrived, Gaston Weldon was at
work in the fields. His wife and Shirley
Diann welcomed the nurse. The aunt
apologized for not bringing a present for
her niece. “But,” she said, “T'll tell you
what we'll do. It’s such a hot day, let’s
drive down to Oliver’s store and buy some
ice cold soda pop and, maybe, some candy.”

Mrs. Weldon agreed and so did Shirley
Diann, and with much more enthusiasm.
They bought the candy and soft drinks at
the crossroads store and returned to the
house. Earle Dennison opened the bottles
and poured out the pop, taking special
care to fill 2-year-old Shirley Diann’s
favorite plastic cup. They sat on the front
porch and sipped the ice cold liquid.

Suddenly Shirley Diann became sick.
Her eyes filled with tears. She doubled
over in pain. She ran to her aunt. “Sick,”
she whimpered. “Shirley Diann is sick.”
Her face was pale and she retched vio-
lently.

Cora Belle Weldon was immediately
concerned. ‘“She’s really ill, Earle. I’ve
never seen her like that before. She’s
never been sick in all her life.”

Mrs. Dennison reassured her sister-in-
law with a professional bedside man-
ner. “It’s nothing,’ she said. “An upset
stomach, probably caused by overeating in
this hot weather. It happens to all kids.”

But, during the afternoon, the child be-
came sicker. The mother suggested taking
her to their local doctor.

“He won't be in in his office until after
5 o’clock,” said Mrs. Dennison. “Besides,
I’m sure it isn’t serious. Here, I’ll give
her a little more soda pop. It may settle
her stomach.”

Mrs. Weldon became calmer. After all,
Earle Dennison was a nurse of some 20
years’ standing. Her opinion regarding
illness was not to be taken lightly. By 4:30
Shirley Diann had not improved. She
cried and her face was twisted with pain.
But Mrs. Dennison remained optimistic.

“She’ll be all right,” she said. “I must
go now. I have to get into town. I have
to pay a bill which must be paid today.”

She drove off to Deatsville, a few miles
away. There she visited Cecil Bailey, an
insurance agent. This was May Ist, the
final day of grace for her to make an over-
due premium payment on a policy she
carried.

When Gaston Weldon came in from the
fields and saw his sick daughter, he made
a swift and angry decision. “I don’t care
what Earle Dennison said,” he announced.
“That child’s going to the doctor right
now.”

“But,” said his wife, “Earle said that
Dr. Sewell wouldn’t be in his office until
after 5 o’clock.”

“All right. We’ll take her to Dr. Little
in Wetumpka.”

Dr. Little examined the child. His opin-
ion did not at all coincide with that of
Mrs. Dennison. “She’s gravely ill,” he
said. “Take her to the hospital im-
mediately. Take her to Dr. Gresham. I'll
telephone while you’re on the way.”

When Dr. C. Gresham received Shirley
Diann in the children’s ward, she was al-

most unconscious. Her condition, he said,
was critical. He added angrily that she
should have been brought to the hospital
hours before.

The Weldons sat in the waiting room. At
6:30 Mrs. Dennison went to the children’s
ward, informed Dr. Gresham that Shirley
Diann was her favorite niece, and offered
to nurse the child, personally. Neither
Gresham’s medical skill nor Earle Den-
nison’s nursing ability were of any avail.
Little Shirley Diann Weldon died at 8:30.

Earle Dennison shook her head sadly.
“What was it, Doctor?” she asked Gresham.
“Food poisoning? She got an upset stomach
this afternoon after drinking some pop.”

“It wasn’t soda pop that killed her,”
said Dr. Gresham, “If I’m right, it was
something far more lethal than that.”

Mrs. Dennison went out to the waiting
room and broke the tragic news to the
anxious parents. The nurse and Mrs.
Weldon embraced and wept. Gaston Wel-
don stared glazedly at the wall, looking
completely bewildered. Then, Dr. Gres-
ham came into the waiting room.

Weldon seized his arm. “What was
wrong with my little girl, Doctor? How
could she die so suddenly?”

“I can’t tell you,” said Gresham. “But
Y’ll know in a little while. I want your
permission to request Dr. Edwards, the
Elmore County coroner, for an autopsy.
It'll be done by Edwards and the state
toxicologist, Dr. C. J. Rehling.”

“An autopsy?” said Weldon, in surprise.
“But why?”

“Because,” said Gresham, “I believe your
child died of arsenic poisoning. Only an
autopsy can prove it.”

Weldon gave his permission. Earle Den-
nison volunteered to aid at the post mortem
in her capacity as a registered nurse. The
autopsy was performed on the following
morning. It proved Dr. Gresham right.
There was enough arsenic in Shirley
Diann’s stomach and digestive organs to
have killed a dozen children of her age
and size.

Earle Dennison broke down. “It is too
much,” she said. “First my husband, then
Polly Ann, and now little Shirley. I just

- can’t stand it.”

The coroner put through a call to the
office of the Elmore County sheriff, Lester
L. Holley, and informed the sheriff of
the autopsy findings. He added that Dr.
Rehling, the toxicologist, desired to ex-
amine the cup from which Shirley Diann
had drunk the pop, and the dress she had
been wearing at the time.

Mrs. Weldon delivered these articles to
the doctor. Traces of arsenic were found
inside the plastic cup, traces of it on the
dress where the child had vomited. These
facts were reported to Sheriff Holley.

Holley went to the Weldon house. He
broke the news, which thus far, had
been withheld from the family. The sheriff
was not too sympathetic. Other farm
children had died in his county as a result
of their parents’ carelessness in leaving
poison available to curious young hands.
He said as much to the Weldons.

“That’s absurd,” said Gaston Weldon
indignantly. ‘‘There’s not a bit of arsenic
on this property. There never has been.
We don’t have any rats, and I don’t know
of any other use for a deadly poison.”

“Then how did it get in the child’s cup?”

Weldon shrugged disconsolately and
turned to his wife. ‘““You were here when
the pop was poured. What happened?”

Cora Belle Weldon screwed up her
brow and taxed her memory. “Why, noth-
ing, really. I didn’t pour it. Earle did.
She gave the cup to Shirley Diann.”

Holley looked thoughtful. “Is there any
reason why Mrs. Dennison would want to
poison her niece?”

Mrs. Weldon said that this was un-
thinkable. The nurse loved the child; she

had promised to provide the money for
her future education.

The sheriff scratched his head thought-
fully. He said, “Do you have the empty
bottles? It’s just barely possible that the
poison got into one of them, somewhere
along the line, in the bottling plant.”

Luckily, Mrs. Weldon did have the bot-
tles; she had not yet returned them to the
crossroads store. Holley took them along
with him to Dr. Rehling’s laboratory for
examination. He found no trace of arsenic
in any of them.

On May 5th, Holley consulted Circuit
Solicitor Winson Huddleston. “I think
that child was deliberately poisoned,” he
said. “There isn’t any arsenic in the
Weldon house. There was no trace of it
in the pop bottles, but there was quite a
quantity of it in the kid's plastic cup.
Someone deliberately put arsenic in that
cup.”

“It sounds reasonable,” said Huddleston.
“But who? From what I hear only the
child’s aunt handled the cup. You're not
accusing Earle Dennison of murder, are
you?”

“I know it sounds impossible,” said
Holley, “but I have to check it out. I'm
going to canvass the drugstores, collect
the names of all recent arsenic buyers.”

Huddleston nodded. “You might as well
check the insurance agents, too.”

Holley looked at the lawyer, question-
ingly.

“Well,” said Huddleston, “if Earle killed
her niece, she’s either gone suddenly mad
or she has something to gain. The only
possible gain for her, as I see it, is if she
had an insurance policy on the little girl’s
life.”

“You have a point,” said Holley. “I'll
attend to it.” .

If the sheriff were right, if Earle Denni-
son actually was a murderess, she cer-
tainly gave no indication of it. To her
friends and acquaintances, she seemed ter-
ribly shaken by the death of her niece.
The supervisor of nurses at the hospital
offered her a week’s vacation. But Mrs.
Dennison refused.

“Hard work is the answer,” she said. “If
I can lose myself in my work, I can forget
the tragedy.”

She stayed on at the hospital. She
worked overtime when the wards were
shorthanded.

In the meantime, Holley visited the
Wetumpka drugstores, but found nothing
suspicious. The names on the poison
registries were those of citizens beyond
all suspicion. But when he came to
Little’s pharmacy, he made a significant
discovery. He found the name of Earle
Dennison. Three weeks ago, she had pur-
chased ten cents’ worth of sodium arsenate
and had told the clerk that she “wanted
to kill some rats.”

Holley returned to his office in a state
of some astonishment. Even though he
had been suspicious enough to check on
Earle Dennison, he could hardly believe
that this respected nurse had actually
killed her own niece. Now, most assured-
ly, he would follow the circuit solicitor’s
advice and investigate the insurance agents.

This task was made easy for him. Elmore
County is a rural area where rumor trav-
els fast. It had come to the ears of
Eugene Keener, an insurance man, that
Earle Dennison had poured the soda which
had killed her niece. He thought the mat-
ter over, then called at the sheriff’s office.

“Sheriff,” he said, “Earle Dennison held
a policy with me, insuring the life of
Shirley Diann Weldon for $5000. The
premiums had been paid up to and in-
cluding May lst. Then the little girl
died before midnight, so the policy was
valid. Had she died after that, the
policy would have lapsed. Moreover, I
believe that she held another policy on

the child’s life
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sent for the warden, Mrs. Bdwina Mitchell,

“Now, 1 want to talk about it,” « she
said. “I gave that poison to Shirley Di-
ann. I’d bought it without thinking of
killing her. The idea just popped into
my mind when I was pouring the soda.”

She admitted purchasing the arsenic;
she admitted making the eleventh hour
payment on the insurance policy. Then
she added a statement which was odd,
coming from a professional nurse.

“I watched the autopsy,” she said. “But
1 never thought Dr. Rehling would find
that much arsenie in the body. Shirley
Diann didn’t get very much. It just
didn’t cross my mind that they could go
in the body and find if the child was
poisoned with arsenic. — T wouldn’t have
riven her oarsenie if Pd thought they
could find it.”

In spite of the $5500 worth of in-
coranee oon the opirl Barle Dennison in-
sisted that the murder had not been pre-
meditated. She had administered the
arsenic to her niece on sheer, inexplicable
impulse. In respose to Mrs. Mitchell’s
questioning, she continued to deny that she
had poisoned Polly Ann. She admitted
that she had once put a salt shaker con-
taining poison on the table at which
Polly Ann was eating, but the child had
hot used any salt. She admitted, further,
that she had fed Polly Ann ice cream on
the day that the girl had died, but she
flatly denied that the ice eream had been
poisoned,

As to the equally sudden death of her
husband just one month earlier, she had
nothing to say. Her only reaction was one
of resentment. Was it not enough that
a woman should have to bear such deep
tragedies without being reminded of them
and persecuted? She answered no ques-
tions about her “dear, deceased husband.”

The prosecution felt it had all the
needed evidence to bring Mrs. Dennison
before the grand jury without having to
exhume her husband’s body. She was
promptly indicted on two counts of
murder, one count each for the death of
her two little nieces, but Solicitor Huddles-
ton elected to try her only for the death
of Shirley Diann; the evidence in this case
was more recent and therefore stronger.
Moreover, he had obtained a confession
in this case from Mrs. Dennison shortly
after her talk with Warden Mitchell. The
trial was scheduled before Circuit Judge
Oakley Melton on August 13th.

At dawn of that day, Earle Dennison
made her second suicide attempt. She was
found in her cell, her wrists slashed and
a bloody razor blade at her side. It was
never learned how she obtained the blade.
She was rushed to the hospital, where it
was estimated that she had already lost
a pint and a half of blood.

When the trial began, Solicitor Huddles-
ton characterized the murder of Shirley
Diann as “the worst crime ever commit-
ted in the state of Alabama.” He added,
“The Dennison case will be history for 100
years in Alabama. Shall history say that
this perfidious nurse lived happily ever
after?”

The jury came to the conclusion that
history should not. At 9:25 in the eve-
ning of August 16th, it found Earle Den-
nison guilty of first-degree murder. Judge
Melton ordered that she die in the elec-
tric chair at Kilby Prison on September
26th, 1952. However, the sentence was
automatically stayed in order that it be
reviewed by the supreme court, as is re-
quired by law in all capital cases.

Earle Dennison aged more than a year
in the 12 months that she waited in Tut-
wiler Prison for the final decision of the
Alabama supreme court. It came _ in
August of 1953. It upheld the verdict of
the lower court. Earle Dennison was
ordered to be executed on September 4th.

iler lawyers did not give up. They
petitioned for a sanity hearing and ob-
tained a court order granting a mental
test to be given the nurse by psychiatrists
at Bryce’s Hospital at Tuscaloosa. They
also petitioned the governor for a clem-
ency hearing. On August 23rd, Earle
Dennison was taken from her cell to the
hospital. She spent a week in the care of
doctors, who examined her thoroughly,
and on September lst they announced
that she was sane.

She was returned to Tutwiler Prison
where she remained for 24 hours. Then
the state highway patrol delivered her to
Kilby Prison, where she would remain
while attending the clemency hearing
which had been granted by Governor
Persons. She arrived, accompanied by
two specially assigned matrons, one of
whom was to be in the cell with her con-
stantly. She attended the clemency hear-
ine with her lawyers on September 2nd.
Then she returned, hopefully, to the prison
to await decision of the governor.

She seemed calm, and expectant of a
favorable gubernatorial verdict. She
ordered coffee and cake from the commis-
sary, and chatted with the matron. On the
afternoon of September 3rd, Earle Denni-
son appeared anxious, but not anxious
enough to impair her appetite. Informed
that she could order whatever she wished
for her dinner, she requested a whole
fried chicken, mashed potatoes with
cream gravy, green salad, corn bread, and

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heavily sugared coffee. She ate every
scrap of the food with apparent relish.

She pushed the empty tray away from
her and commented to the matron, “I
pleaded with the governor for mercy. I
begged him to save my life. I know that
no white woman has ever been executed
in Alabama. I’m sure they’ll never exe-
cute me.”

Dusk came down. The bare electric
bulbs in the cells clicked on. Earle Denni-
son sat on her cot in silence. Her melan-
choly seemed to deepen as the minutes
ticked by. By 10 o’clock, she was obviously
nervous. By the time the chaplain ar-
rived with the fatal news, she was shaken
with anxiety.

And now, as she prayed, with her thin
knees on the cold concrete of the cell
floor, she knew. She knew the answer.
The governor had commended her soul
to God. No temporal authority could help
her now.

At 11:30, the warden came into her cell,
aecompanied by the prison barber. Earle
Dennison sat on the edge of her cot as

the barber shaved her unruly hair. She
wept bitterly.

At 12:02 on the morning of September
4th, Earle Dennison, along with a matron
and a nurse, entered the death cell. The
bright light shone obscenely on her shaven
head. She wore the drab prison uniform,
but the high heeled shoes on her stocking-
less feet were her own. She walked stoi-
cally into the crowded chamber of doom.
Her eyes were red from weeping, but
she gave no sign of either regret or
remorse. She sat down in the death
chair and winced as a guard tightened the
straps.

She lifted up her head and spoke in a
soft whisper. “God has forgiven me for
all I have done,” she said. “I have for-
given everybody and I hope everybody
has forgiven me.” Her voice dropped as
she spoke another sentence which no one,
not even those nearest her, heard.

Then she said, more loudly, “I think
these straps are too tight.”

Three guards took almost four minutes
to adjust the straps properly. One strap
was attached to each of her legs, three
about each arm, and one around her neck.
A leather band, resembling a halo, was
put on her head. It had been soaked for
hours in salt water to render it a more
effective conductor of electricity.

“Oh,” she said as the band was forced
upon her shaved head. It was the last
sound she ever uttered in this life.

Now her horn-rimmed glasses were re-
moved by the nurse. A prison attendant
waved a yellow paddle as a signal to the
state executioner, who stood at the switches
in a small room behind the execution
chamber. As the black hood was lowered
over her stony face, her muscles tightened.
One reporter wrote that, at that final
moment, she reminded him of the Sphinx.

The unseen executioner threw the switch.
The current entered her left leg. Her frail
body tensed as the murderous voltage
poured through it. She clenched her fists;
her right leg twitched. The overhead
lights dimmed. Twenty-seven _ seconds
later the current subsided. A _ doctor
ripped open her dress and applied a
stethoscope to her chest. The instrument
left a whitish mark on the flesh.

A spiral of smoke emanated from under
the black hood. An odd odor, like that
of burning feathers, permeated the entire
room. Her body turned a_bluish-pink
color. Her toes arched inward, When the
straps were loosened, her body remained
taut. It was exactly 12:12 a.m. when the
doctors pronounced Earle Dennison dead.

Attendants from a Wetumpka funeral
home lifted the body to a stretcher, covered
it with a white sheet, and wheeled it
through the prison yards where 100 grim-
faced convicts watched through their bars.

In the farmhouse in Claud, the Weldon
family waited, sorrowing, for news of the
death of the perfidious aunt. Gaston
Weldon said, “I feel nothing but sorrow
for her, but at the same time I have to
remember that she did not show any
mercy to my little girls.”

Earle Dennison was buried in her family
plot on the following day. It was a lone-
ly funeral presided over by the minister
of her church. He preached no eulogy.
He commended her soul to her God. Man’s
justice had been done. If Earle Dennison
was to receive further punishment, it
would be meted out by a power higher
than either the courts or the governor of
Alabama.

Earle Dennison will be remembered in
her native state for many reasons. Not
the least of which is the dubious distinc-
tion of breaking a Kilby Prison precedent.
The 142nd execution in that prison was
that of a white woman, the first and only
one to die in the electric chair in all
Alabama’s history. o¢4¢

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APPROVE

UNIVERS,


DENNISON, Earle, white, elec. Ala.

MASTER DETE

TIVE MAGAZINE,
NOVEMBER, 1969.

EAT}

Earle

a nur
cared to
greater pa
she had
nurse. E
purely a
was _inco
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Dennison

<4

As a nurs
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ELECT

EATH was no stranger to Mrs

a nurse for more years than she
macared to remember, and for the
macreater part of her career in medicine,
she had been an operating room
nurse. Even her worst enemies—
purely a figure of speech, since it
was inconceivable that a_ kindly
woman like her would have enemies—
would have to concede that Earle
Dennison was one of the finest O.R.

‘

<4

a nurse, Earle had brought gentle
komfort to the sick; but to her own
in, she betrayed her noble calling

D Earle Dennison. She had been +

An Alabama Crime Shocker

. two lovely children appeared to be accidental, but _

a shrewd sheriff thought he smelled a case of murder — a

by ROBERT HUNTER

a s
nurses in the business. She was one

of that rare and highly prized breed
who combined professional skill with
an intuitive insight which enabled her
to. anticipate an operating surgeon’s
every command, and to be ready with
the instrument he needed almost be-
fore he had consciously decided he
wanted it.

And for an O.R. nurse, she had yet
another invaluablé quality—she was
utterly unflappable. No matter what
the crisis, no one had ever seen Earle
Dennison get excited, hysterical, or,
in the current parlance, “lose her
cool.” She was thought to be rather
devoutly religious, yet she never
became upset when surgeons, under

SITHE HOMICIDAL NURSE
KILLED ‘EM
_ WITH KINDNESS —

At first glance, the terrible, agonizing deaths of |

the stress of life-and-death emer- ~
genciés, erupted with streams of pro-
fanity that dissolved less experienced
young nurses into gales of tears. Maas
For all her qualification and cool,»
however,. Mrs. Earle Dennison was
unprepared for. involvement in the
type of death that came to a loved —
one on short notice. It was a death °
that would touch her life as nothing °
ever had. It was a death which would ©.
have repercussions not only in her
native Alabama, but throughout the
entire United States, jy) Xa
The chain of events leading up to ©
all this began on the unseasonably’
sultry afternoon of May Ist. At the ~
hospital in Wetumpka, where she had


aed tho fires of a womans envy. She might never have been caught except for her inhuman greed,

WETUMPKA, ALA, JAMES BOYLAN

’

On an Alabama spring evening, ‘a child's life
was being torn away. The convulsions of the
hours before had subsided—her two-year-old body
.was limp and slightly bent ‘as if she were a bow
and the string stretched from neck to ankles,
Her face was ashy against the hospital sheet and
beads of chilly sweat caught the overhead lights,
Her heart barely whispered into the stethoscope.
Her innards were burned and scoured—it was
very near the end, at

A May breeze passed the window and the
child twitched slightly, a faint ‘reminder of. the
overwhelming spasms that had seized her in the
afternoon. There was a last, almost playful-look-

ing toss of her blonde head, Her mother, beside -
the bed, caught her breath. The doctor took his -

stethoscope away, shook his head,’

At the head of the Stairs outside the room, _

there appeared’ like a Spectre, a~ gaunt, gray-
haired woman, Nurse Alma Hall, coming from
the room,. saw her.

The nurse said, “Shirley Dianne is dead; Mrs,
Dennison.” ;

The tall and sour-faced woman ‘pinched her
lips together tightly, opened them for a short and
emotionless ‘monosyllable. She’ brushed past
Nurse Hall to the door of the room. Before she’

entered, she looked back over. her shoulder a -

second. The nurse was startled to see on the face
a fleeting look she could only’ desoribe as elation.

Earle Dennison had lived with an outer quiet
ike the tense calm ofan operating room.. Her

jecades as a nurse had molded her into a pattern ee

of rocklike efficiency and Stolidity. But the same
rears. had been the cauldron of bitter, corroding
rustrations. | : :

When Earle took stock of her life around her
‘Oth birthday, she decided her whole span had
een bleak and—perhaps—wasted. She could re-
all only two really important events—her mar-
iage to Lemuel Dennison and her becoming head
urse in the Wetumpka General Hospital, serving

town of 3,000. Neither looked so good nor
nportant when she had lived with them for a
me. She became increasingly unhappy, trapped
t a years-long rotation between the low-paid
ospital job and her childless home. She spent
ights tossing sleeplessly until she took up keep-
\g a bottle of sleeping pills in her dresser drawer,

Happiness? She sneered inside when she heard
‘e word. The worst times for her were when
‘¢ visited the Weldons. Cora Belle Weldon was
+ husband’s sister, and the mother of a five-
‘ar-old child named Orvil. Once.a week or so,
irle would drive out to their farmhouse a few
iles from Wetumpka, in the rural community

Claude. But it was punishment for.her. Each
ne she gave Orvil candy or a toy she was re-
inded that her days of child-bearing were over.

In 1949, Cora Belle had her second baby. Like ©

good aunt, Earle stepped up her ‘visits and
insferred. her show of affections to Polly Ann
d tried to teach her to.say “Auntie Earle.” But
the drives to and from the farm she: thought
1g and often about the primary sin of the
zldons: they were happy. She wasn't.

The bitter thoughts turned dark as they moved

the efficient, operating-room channels of
rle’s mind. It was all terribly unfair to her. She
ist set things as they should be. When the

sughts became conscious, they were an. icy,

\g-range plan.

Earle kept up her frequent visits, cooed_ over
lly Ann and patted Orvil’s head. On one visit

* brought up, in an offhand way, that she __

uld like todo something for the children, .

‘Anything you like, Earle,” said Cora: Belle, :

NE DETECTIVE

SSE cae Oi RES tet ee se ees

_ “I was thinking the other day that if they had

insurance policiesyou know, the kind that piven
them a pile of money after they're twenty-one—
I was thinking that it would probably be the best
thing I could do.” ;

“Insurance?” Cora. Belle was puzzled. “Why, I
guess it would be all right if you can afford it.
I know that Gaston and I never could.”:

The next day Earle stopped at the office of a
Wetumpka insurance agent and took out policies
~payable only in the event of death, even violent

death. On the line of the application marked “first

beneficiary,” Earle wrote “Mrs. Earle. Dennison.”

Satisfied that the Weldons suspected nothing,
Earle began to plan. As she sat at the kitchen
table at the farm, chatting with Cora Belle or
holding little Polly Ann on her lap and saying,
“Isn't she cute as a bug’s ear?”, her thoughts
were on premiums and payments and revenge.
.Her chance didn’t come until Cora Belle was well
on the way to having her third child.

‘About the time Cora Belle’s labor pains were
starting,» Earle made. another business call—to a
drug store. She bought a can of arsenic. Ant
poison, she told the druggist. She transferred the
deadly powder to a salt shaker, hid it in the cup-
board and waited.

The next morning her brother-in-law called to
announce that she had a new niece. Earle con-
gratulated Gaston’ Weldon, hung up and pulled
the salt shaker ott of the cupboard. She smiled
tightly.

At the Weldon home, Cora Belle was in bed,’

her husband in town shopping for her, when
Earle came in carrying a large: basket of food.
She put the basket down as Orvil ‘and Polly Ann,

who had been playing on the lawn, charged in -

through the kitchen door, ‘She greeted them,

_then told them to wait while she went into the

bedroom. we
- Cora Belle, still a little pale; had 10-hour-old
Shirley Dianne by her side. :
’ “Oh, you've got ‘another good-looking one
there,” exclaimed Earle..She sat down for a
minute and asked Cora Belle how she felt, if
she'd had any trouble, and, “Have the kids had
any lunch?” | °
Cora Belle shook her head. “Well, we'll fix
that, “said Earle, and returned to the kitchen.
Calmly she unloaded her basket and laid’ the
food out on the table while Orvil, now seven,
and Polly Ann hopped about excitedly. When
she had set the table, she boosted Polly Ann into
her high chair and asked Orvil, as they started
to eat, “Well, Orvie, how do you like your new
sister?”

Orvil shook his head. “Aw, I don't know,” he
said, his mouth half-full, ‘
The salt shaker stood in the middle of the

‘table. Earle watched anxiously to see if one of .

the children would reach for it. She congratulated
herself. The salt shaker had been a good idea. If
poison were suspected, she could say it was an
accident—the kids had grabbed it by mistake.

Orvil ate steadfastly, ignoring the shaker. Polly
Ann seized it once, swung it around, then pushed
it away. ~~ :

“How about some salt on—” began Earle, then
stopped. Let them do it’ themselves,

The container: sat untouched the rest of the
meal. Earle felt a little let down. She was no
longer certain that she wouldn’t have to give the
poison herself. If she waited for another time,
Cora Belle would be up and around and might
walk in on her. It had to be now.

She took Polly Ann out of the high chair and
told her, “Now you just wait here, baby, and
Auntie Earle will get you some dessert.” She
went out to the car and drove into the Claude

~ grocery store for ice cream.

When she came back, Orvil had wandered out

“» into the yard someplace, but Polly Ann was in
- the bedroom, She toddled into the kitchen when
ro

she heard the screen door slam,

“Ie that you, Karle?” Cora Delle called from
the bedroom.

“Yes, Cora Belle.” She turned to Polly Ann,
who was stretching out a chubby hand for the
ice cream cone.

“Just a minute, dear,” she told Polly Ann. A
few seconds later she handed the child the cone.

A half hour later Polly Ann came into the
house and said, “I got tummy ache, Auntie Earle.”

Eare said, “Poor baby. You just wait a few
minutes and it will go away.”

,Cora Belle called in to ask what was the matter. . ° '

“Polly Ann has a sick stomach,” said Earle, com-

ing to the bedroom door, “I'll take care of it.
She just ate a little too much sweets,” ;

But in a few minites Polly Ann went into

convulsions on the kitchen floor. Her leg muscles
jerked in violent spasms, she vomited and cried
that she was thirsty. Cora Belle heard her, and
told Earle to bring her into the bedroom. :

Earle carried Polly Ann in and bent.down so
her mother could inspect. : .

’“She looks just awful, Earle,” said Cora Belle.

“Now look, Cora, I tell you it’s nothing but a
sick stomach. I should know one when‘ see it,
shouldn't I? Let's just get her to lie down and—”

“Maybe you're right. But I'd sure feel a lot bet-

ter if we let the doc take a look at her.”
-” “Look, Cora, I’ve been a nurse for—”

“Please, Earle, would you take her into town?”

“Sure, Cora Belle. I guess you're her mother,

.Earle carried Polly Ann, twitching in her arms,
out to her car, put the little girl on the front seat
beside her and drove over the bumpy road to
Wetumpka. She pulled up at a doctor’s house and
carried Polly Ann in, but only a minute or two
later, she came out with. the little girl and drove

to the hospital. - . ;
During the next days, Earle Spent many off-duty

hours at Polly Ann’s bedside, in more rational -

moments wishing for her to’ pull through, then
being overcome by the overwhelming desire for
her to die. Polly Ann held out against the after-
effects of the poisoning for four days. Cora Belle
got out of bed just in time to come to the hospital
and see her daughter's life slip away from the
shell the arsenic had. left,

The Weldons seemed too stunned to give much
thought to the circumstances of Polly Ann’s death.

Earle was with them ‘when the little casket was .
lowered into the ground. Afterward, she worked’

hard in her chilly way to comfort ‘Cora Belle. But
the mother: would only be consoled. by the
thought that “we still have ‘our Shirley Dianne.”

Earle: waited a few days after the funeral,
then filed a claim for her $5,000. It came through
No questions asked.. , ~

But Polly Ann’s death: didn't mend the jealous
urgings in her mind. One death, all too brief,
couldn't make up for her years of sorrow. She

- still had the policy on Orvil. But, she cautioned
_ herself, he was getting older and dangerously

talkative. Yet she knew she would have to kill
again. The answer was easy.
On a visit to Cora Belle (she still made them

regularly) Earle cautiously brought up the sub-.

ject of insurance for Shirley Dianne. She watched
carefully for any réaction, but Cora Belle only
shrugged and said, “Go sahead.” She was con-
cerned with more immediate thoughts.

Earle.dropped in on agent Eugene Keener and ©

took out Shirley Dianne’s policy—for $5,000.
Once more she settled down to waiting. Earle’s
husband Lemuel fell sick the next year, in 1951,
and for the first. time in years she noticed him.

But when he died’ she took little time for official: |

mourning, and even less in her own mind.
‘Shirley Dianne grew to be a Cheerful blue-
eyed blonde child. Like Polly Ann, she learned to

accept goodies from.“‘Auntie Earle.”.When Shirley °

Dianne redched her second birthday—too young

>

continued on 39

19

PRN ute a Tae ae Se eG Anni crit Lctiatis 0?


continued from 19 °

to speak well, old enough to eat with
out help— Earle knew her time had
come again,

As a last step, Earle decided she

" wanted to have $10,000—clear profit.

In four years, she had invested a
good deal in premiums. To make up
for the cost, she should have one
more policy. She insured Shirley
Dianne with agent Cecil Bailey for
$5,000 more.

Shirley Dianne was nearing her
third birthday when Earle drove out
to the house with a bottle of orange
soda pop and a packet of arsenic.

“Auntie Earle! Auntie Earle!”
Shirley Dianne chattered when she
came into the kitchen. Orvil, now 10
years old, hung back a little. Earle
sat down and Shirley Dianne crawled
up into her lap and hugged her.

“Where’s your mummy?” asked
Earle.

“Oh, she went to the store,” said

Orvil. . .
“Oh, did she. now?” Earle lifted
Shirley Dianne to the floor. “Now
you hop down there like a good
girl and we'll have some good orange
pop until she gets back.”

Shirley. Dianne squealed happily.
Earle went to the cupboard, took
down a glass. Automatically, she
opened the packet and dropped in the
powder—a huge dose, much more
than Polly Ann had swallowed. i! She
poured out the orange drink.

Shirley Dianne took the glass from
Earle. ie

Earle relaxed as the ‘child quickly
poured down the rest of the glass,
and cried, “More, more!” ~

“No, no more, honey,” said Earle;

She didn’t have to wait long. The
convulsions were started by the time
Cora Belle returned a half hour later.
Once more Earle tried to tell her it
was upset stomach, even as Shirley
Dianne’s body began to. twitch in
4ncontrollable ‘ spasms, and her
ongue and. mouth turned blackish.

cora Belle had no time for accusa- }

ions. Tensely she insisted that
Zarle take Shirley Dianne to a doc-
or. Earle knew she couldn't argue.

‘ummy Ache And Spasms

Shirley Dianne was crying for
vater and breathing very fast when
‘ora Belle carried her out to the

ar. The doctor in Wetumpka treat-

d her briefly, then told them to get
» the hospital as fast as possible,
arle carried Shirley Dianne into
le emergency ward. Dr. Gresham,
\ charge, took a look at her and
iapped, “How lang has she been
lis way?”

“A couple of hours,” Earle mur-
ured.

‘My God, why didn’t you bring
xr here before? You’ve been in the
sspital long enough to know when
child’s in bad shape!”

While the doctor took over, Earle
membered she had unfinished bus-
ess. In her preoccupation with
her plans. more to her taste, she
id fallen behind on the premiums

the $500 policy. She would have

pay before it lapsed—or Shirley

LINE DETECTIVE

Dianne died. She slipped out of the
ward and walked over to agent
Bailey's office and saved the policy
it would have gone out of effect
on the next day.

Earle returned to the hospital
after supper to find that Shirley

‘ Dianne had held out only five hours.

Earle Icarned a few days later
that the Weldons had asked for the
thing ‘she had thought Cora Belle
would never permit—an autopsy on
Shirley Dianne’s body.

Hastily, ‘she filed claims for the
$500 and the $5,000. They came
through on the day before C. J.

’ Rehling, the State Toxologist, drove

up from Auburn. She was present
when Elmore County Coroner W.

_ A. Edwards and Rehling appeared

at a Wetumpka funeral home for
the autopsy.

On the evening of May 8, a
Thursday, Earle ate supper, took a
tablet, and Jay down for a nap after
supper. Some time later, the door-
bell clanged into her consciousness.

She opened the front door. El-
more County Sheriff Holley was
Standing on the porch. ,

Earle backed away from the door.

Holley moved into the living
room, looked about it, then turned
to Earle and said, “I’ve got a war-
rant for your arrest, Mrs. Dennison.”

Earle took her breath in sharply.

~ Her heart beat hard. “What for?”

she asked sharply. “Who signed it?”

“The Weldons. You're charged
with poisoning their kid.”

“Oh.” Earle waited a moment
while confused anger and fear criss-
crossed her mind. “Do you want me
to go with you?”

The sheriff nodded. Earle mum-
bled something about getting dressed,

, and walked, still half-dazed into the

bedroom and closed the door. She
went straight to the dresser drawer
that ‘held her sleeping tablets, opened
the bottle, and deliberately, one by
one, swallowed all that remained.
‘Slowly she put on her drab blue-
and-white polka dot dress.
. “You all right, Mrs. Dennison?”
asked the sheriff.

She moved her. head. They went
out to his car. She stumbled against
the door frame getting in. He drove
off. They had gone only a few blocks
when Earle felt the merciful black-
ness creep over her.

When she woke up it was Friday.
She was in a room of the hospital
where she had worked. She noted
with dismay that she was still alive

. ~and caught. For three days she lay

isolated, weak and in deep depres-
sion. The nurses who had worked
under her hardly spoke to her. On
Monday she was told to get up and
dress. The sheriff took her out to
nearby Tutwiler Women’s Prison.

She'd never been in jail before,
but she hardly noticed her surround-
ings. She brooded, her poisoned
mind not able to grasp why she had
been caught the second time. On

‘Saturday, the 17th, a guard told her

that some people wanted to talk to
her. She was led from the cell to

a bare conference room where Reh-
ling, Coroner Edwards, and the
warden and deputy warden were
seated around a table,

They wanted a confession. At
first she answered “no” to everything
they asked and held grimly to her
coolness. Then Holley told her that
during the week the rotted remains
of Polly Ann had been exhumed.
Much of Polly. Ann had been gone,
but the three-years-dead fibers of
her stomach still showed arsenic.
Holley added that her husband
Lemuel had been dug up, too. She
flared for a moment.

“He died by himself. I didn’t
have anything to do with him dying.”

She spent two hours shaking her
head in silence while Holley and
Rehling pointed out secret after
secret. At last she gave up. ~

’ Slowly she began to dictate, in a
low, fatalistic monotone. She didn’t
admit giving poison to Polly Ann,
because they didn’t seem so certain
of that. She told of the insurance,
of poisoning Shirley Dianne, and of
never once in four years, betraying
her feelings and revealing the real
“Auntie Earle.”

Ten days later, Earle waived her
Tight of preliminary hearing and was
bound over to a specially-called
Grand Jury. It heard the evidence
and promptly handed up two indict-
ments—one’ for Shirley Dianne’s
death, one for Polly Ann’s,

Earle passed her days dutomatic-
ally at Tutwiler, looking for a way
out without public humiliation of a
trial, but thinking as little as possible
about anything else. When the court-
appointed defense attorney, W. C,
Woodall, came out to talk to her,

‘she. knew he couldn't help, so she

hardly answered his questions,
Her tension and fear mounted
sharply in the next week. Desper-

. ately she searched for a way out.
She found it when she searched her

cell. In a fold of the musty mattress
was a jagged piece of metal—part of

_an old razor. She looked at it quick- -

ly, then hid it. .

The trial was scheduled for Au-
gust 13. On the evening of the 12th,
Earle wrote a note.

She went to bed and lay quiet and
awake through the long hours of the
night. The depressing thoughts that
hung around her only stiffened her
determination, Early in the morning,
when she thought the guards in the
corridor would be least alert, she
felt in the mattress until she found
the piece of razor.

Not More Than A Pint Of Blood

Closing her eyes, she drew it

- across her left wrist.

At 5:45 a.m. the guard, checking
the cell, saw the dark stain growing
along the edge of the bedclothes.
She rushed in.

The trial was postponed for a day
while Earle got over her shakiness.
But on the 14th she put on her polka
dot dress and was taken down to
the courthouse. When she entered the
Spacious court chambers, a bandage
around her wrist, she was ‘startled

to see the room jammed with more
than 2,000 persons.

She listened while her attorney
asked for appointment of a three.
man sanity commission, and while
the jury was selected~12 men, She
was on trial, she discovered, only
for the murder of Shirley Dianne.

Through the next three days she
watched while the prosecution put
its witnesses on the stand—Nurse
Hall, Dr. Gresham, Cora Belle, the
funeral home attendant, the insur-
ance agents, Mrs. Mitchell (the pri-
son warden), At the last, over Wood-
all’s objections, two confessions she

had signed were entered in the -

record,

May God Have Mercy

Woodall called witnesses to back
up the case for insanity—a doctor
Earle had visited early. in 1952 for
nervous treatment; her sister, Mrs.
Sula Crowell, who testified that
Earle “wasn’t the sister I used to
know.”

The state countered with three
Tebuttal witnesses who ‘said they
hadn’t noticed anything wrong with
her. One was her own father-in-law.
On Saturday evening, August 18,
she stood up before Circuit Judge
Oakley Melton, resting her hands
on the table for support.

‘Is there any reason why sentence
should not be pronounced?” the
judge asked heavily.

Earle remained silent, i

The sentence: Death in the elec-
tric chair on September 26, 1952,
automatically stayed for appeal.

“May God have mercy on your
soul,” the judge’ intoned.

Earle’s head dropped a little. But
then she stood up Straight. And,
with her jaw set in her old head-
nurse attitude, she left the court-

room, for her own lonely death -

cell in Tutwiler Prison, to wait until
she joined Polly Ann and Shirley
Dianne in violent: death.

ceeeinemateenee ance

THE STATE

CAN’T

- MURDER
THESE BOYS

continued from 14

numerous occasions, has expressed
his hate for Turman Wilson. Nor

was it ever establisned that this -

particular beer bottle was unques-
tionably the identical bottle. from
which Utah's fingerprint had been
lifted.

Reasonable doubt? Circumstantial

evidence? The lawyers thought so, yet ~

on June 29 the jury found Turman
— : continued on 42

soe


worked for years, she ‘had assisted at
three operations. She had the after-
oon off,

As she was cleaning up. before
leaving, she said to one of her fellow
“nurses, “I think I'll go over to Claud

this afternoon and visit my sister-in-
;

husband, Lemuel, who had died about
“a year anda half before. It was well
known ‘that Earle doted on Shirley
Diann Weldon, her tiny, niece, who
was not quite two years old. Most of
her friends also knew why.
}.Just a month after the death of
Earle’s husband, sudden death had
taken two-year-old Polly Ann, the
Weldons’ first-born daughter. ‘Shirley
’ Diann had been born just a few weeks
“later, and Earle sublimated her grief
“over the two recent deaths by lav-
ishing love and attention on the infant
girl, She visited her in-laws frequent-
ly, almost always bringing some treat
or little gift for Shirley Diann. It also
was generally understood that the
little girl would become heiress to
'*’Karle Dennison’s life savings when
_ “she passed on. ’

» “Tye saved my money,” she once
said, “and I don’t have to worry. I've
‘got no one to leave my money to
‘except Shirley Diann. I’m going to see
to it that she gets the best education
-*./ there is.”
Earle arrived at the Weldon farm

saabnc

’ Presiding at the trial of a nurse who brought death, instead of
comfort, Circuit Judge Oakley Melton imposed death sentence

at about 12:30 that afternoon and
Shirley Diann greeted her favorite
aunt with an enthusiastic hug. . The
child’s father was out working in the
fields, her mother explained. Earle
was apologetic for not having brought
something for the little girl.

“Tt clear slipped my mind,” she said,
“but I tell you what we'll do, honey.
It’s such a hot day, suppose we drive
over to the store and buy some cold
soda. Maybe some candy, too. How
would you like that?”

The child was all for it, and her
mother had no objection, so thé child
went with her aunt to the crossroads
store. Earle bought several bottles of
soft drinks out of the cooler, and a
bag of candy, and they returned to
the Weldon home. Earle, thoroughly
familiar with the Weldon kitchen, got
out the glasses and a bottle opener
and poured the cold drinks for herself,
the baby, and the latter’s mother. She
remembered to pour Shirley Diann’s
drink into the child’s favorite plastic
cup, decorated with decals of nursery
rhyme characters.

Adjourning the porch, where there
was a slight cooling breeze, they sat
in rockers and sipped their drinks.

‘Scarcely more than a minute or so

later, without warning, Shirley Diann
suddenly retched. In the violent body
spasm which accompanied her vomit-
ing, some of the soda spilled on her
dress. She started to whimper, and
her eyes filled with tears.

Running to her aunt, she cried,
“Sick, auntie, Shirley Diann sick.”

The child’s face was ashen. Beads

‘Sheriff Holley found the report of food-poisoning death
highly suspicious . . . he looked for a motive and found it

of sweat quickly formed on her fore-
head. Her mother eyed her anxiously.
She said she’d never seen her like
that before; Shirley Diann had never
been sick a day in her young life.

Earle said nothing for a few mo-
ments. With professional dispatch, she
felt the child’s forehead, pressed her
cheek against the baby’s face, and felt
her pulse.

Then she spoke reassuringly: “It’s
nothing, honey. No more’n an upset
stomach, probably from over-eating
in this hot weather, besides being a

little excited over auntie coming.
Happens to. kids all the time. She'll

e all right in a little while.”

But the little girl didn’t make the
speedy recovery children so often do.
Instead, her distress became even
more acute. Her mother suggested
they take her to the doctor.

“We can’t,” Earle said. “He won't
be in his office till after five. Besides,
I’m sure it’s not serious. Here, I'll give
her a little more soda. It’ll help bring
up the gas on her stomach.”

The child’s mother had misgivings,
but after all, Earle should know what
she was talking about. She’d been a
nurse for more than 20 years. And in
any event, they couldn’t see the doctor
till after five. The baby continued to
lie on her bed, doubled up_ with
cramps. There was no sign of im-
provement in her condition.

At a little after four o’clock, Earle
regretfully announced that she’d have
to leave for a while. “I have to run
into town, but I’ll be back soon. Got
to make a payment on an insurance

policy. I
but I fc
this is tl
grace pel

She lei
her inst
about 18
' Soon a
father ca
shocked |
When hi
happenec
she was
he shook

Polly Ann
hearted m


r fore-
dously.
ar like
| never
fo
w mo-
ch, she
sed her
ind felt
y: “It’s
1 upset
-eating
yeing a
coming.
. She’ll

ake the
ften do.
e even
iggested

e won't -

Besides,
Tll give
lp bring

sgivings,
yw what
been a
And in
e doctor
d to
ith

im-

k, Earle
e’d have
> to run
yon. Got
isurance

Apolly Ann Weldon was
hearted murderess saw profit in her death and child was given ice cream “treat”

policy. I don’t know how it happened,
but I forgot to pay it earlier and
this is the last day of the thirty-day
grace period.”

She left_in her car for the office of
her insurance agent in Deatsville,
about 18 miles from Claud.

Soon after her departure the baby’s
father came in from the farm. He was
shocked by the little girl’s appearance.
When his wife explained what had

‘happened, and that Earle had said

she was sure it was nothing serious,
he shook his head in disagreement.

“I don’t care what Earle said,” he
declared. “I’m taking that baby to the
doctor right now. If the doctor’s out,
then we'll drive over to Dr. Little in
Wetumpka.”

In the interest of speed, they didn’t
even stop at the Claud doctor’s office,
but drove directly to Dr. Little’s. He
examined the baby and his reaction
was immediate, his concern plainly
evident.

' “This child is gravely ill,” he said.

“Take her over to the hospital at once.’

See Dr. Gresham. I'll phone over

there and tell them you’re on the
way.” Shee
The ‘little girl was comatose when
they reached the hospital. Dr. Gres
ham, as he worked over the child,
listened to the mother’s account of

what had rr paying particular
escription of the symp-:

‘heed to her
toms which had been exhibited: vom-

iting, cramps, diarrhea, abdominal ©

pain, prostration.
When he completed his examination

he told the parents bluntly that the .—

girl’s condition was critical, that she

only two, a lovable picture of cherubic health. But steel- Autopsy of victims’ bodies made by Dr.

+

Rehling showed lethal dose of arsenic.


should have been brought to the hos-
pital much sooner, The parents main-
“tained a vigil in the waiting room as
»the doctor had the child removed to

“In the ‘meantime, Earle Dennison
returned to the Weldon home in
-Claud, only to learn that Shirley
»Diann had been taken to the hospital.
“She drove there at once, arriving at
6:30, and found Dr. Gresham attend-

rl, she said she wanted to nurse the
baby herself. For the next two hours,
pre never left Shirley Diann’s bed-
iside.
Dr. Gresham labored desperately to
‘save the child’s life, but he could not
‘work a miracle. At 8:30 that evening,
Shirley Diann- Weldon’s short. life
ended. Earle Dennison was at the
doctor’s side when he pronounced her
‘dead. © . ee
.’ For the first time within memory of
her medical associates, Earle Denni-
son lost her composure. She wept un-
ashamedly, It was unprofessional, to
be sure, but everyone understood; it

ment when someone close to you dies.
“What was it, Doctor?” Earle asked
_ Dr. Gresham when she had brought
_ her emotions under control. ‘“Food
‘poisoning? She got an upset stomach
«this afternoon after drinking - some
soda.”

“It wasn’t the soda that killed her,”
the doctor said grimly. “If I’m right,
,it was something far more lethal than
that.”

* He didn’t elaborate; Earle went out
to the waiting room and broke the

BO sap, cae

pals ee

ing the baby in the children’s ward.
Explaining her relationship to the ‘

is difficult to maintain clinical detach- .

Two. suicide attempts delayed Earle Dennison’s trial.
') jury, “Shall history say that this perfidious nurse lived

sad tidings to the baby’s parents. She
and Shirley Diann’s mother clung to
each other in their grief. The baby’s
father seemed to be stricken dumb,
incredulous that such a thing could
have happened. He looked up as the
doctor came out to see them.

“What was it, Doctor?” he asked
Dr. Gresham. “What was wrong with
my little girl? How could she die so
suddenly?” ~ ;

The doctor said he couldn’t be posi-
tive, there was a way to find out for
sure. He asked the father to give
permission for an autopsy on Shirley
Diann, to be performed by Dr. Ed-
wards, the Elmore County coroner,
and Dr. D. J. Rehling, the state toxi-
cologist.

Dumbfounded by the request, the
baby’s father demanded to know the
reason for it. The doctor’s reply was,
of necessity, blunt:

“Because I have reason to believe
the child died of arsenic poisoning.
Only an autopsy can prove it.” :

The autopsy was performed the
very next morning, Friday, May 2,
1952, Earle Dennison, before it began,
made a startling request. In her ca-
pacity as a nurse, she said, she wanted
to aid at the autopsy of her niece.
Permission was given, although it was
unusual.

Any fears that the O.R. nurse might
let her emotions get out of hand as
she witnessed the analytical surgery
on the tiny body of her favorite niece
proved to be groundless. Her demea-
nor throughout the ordeal was stoic-
ally professional, as befitted an oper-
ating room nurse of her long exper-
ience. :

Pathological examination of the
child’s vital organs followed the oper-
ation itself. Dr. Gresham’s suspicions

Appearing in court (rt. of microphone), she heard prosecutor ask the
happily ever after?” and then she heard verdict she could not accept

of poisoning were abundantly con-
firmed. Arsenic was found in Shirley’
Diann’s stomach and digestive organs,
in an amount sufficient to have killed
several adults.

For the third time within 24 hours
Earle Dennison lost her professional
poise and wept again. “It’s just too
much,” she sobbed. “First my hus-
band, then Polly Ann, and now little
Shirley. I just can’t stand it.”

Despite this statement, there was
little Earle could do except bear it,
There was something more for the

,coroner to do, however. He called

‘Lester L. Holley, a veteran officer
‘who was Sheriff of Elmore County.
Coroner Edwards: gave Holley a full
report on the autopsy findings.

There was no discussion at this
point on the possibility that the child’s
death might be a case of homicide. It
was entirely possible that Shirley Di-
ann might have swallowed arsenic ac-
cidentally. Arsenic, used widely for
insecticide spraying or to kill var-
mints of various types, is a standard
staple around farms. The task con-
fronting Sheriff Holley was to estab-

_lish how the baby might have ingested

the poison.

‘Dr. Rehling, the state toxicologist,
told Holley he was anxious to examine
the cup from which the dead child
had drunk the soda, as well as the
clothing she had been wearing at the
time. ;

The sheriff went out to the farm to
talk to the parents. The baby’s father
said emphatically that there wasn’t a
speck of arsenic on his property; he

had no rats on the place, and he never

used it on the crops. The’ sheriff
picked up Shirley Diann’s plastic cup
and the clothing she’d worn when she
drank the soda.

In th
death,
washed
Dr. Re)

The -
arsenic

ward, Sh
interview
questions
a couple
emerged.
mother |}
poured t)
She recal
and Earle
store wit
aunt had
cupboard
drawer.
Standin
Earle had
bottles ar
served hi
drinks in
Diann’s in
tic cup. T]
her as she
had been ;
being save
Sheriff °
tounded tl
of any re
would hav
niece?”
The very
they decle
loved the
her own ¢
devoted to
vowed to
to make si
ucation.
Before
picked up
which the ;
said pe wo
toxicologist:
sible the px
of the bottle
Tests late
contained nx
Sheriff Hx
Circuit Soli


con-

- In the confusion following the child’s

rei el death, fortunately, neither had been
ite d washed. He delivered these articles to
Dr. Rehling, who tested them.

alien i The toxicologist: found. quantities of
bet hain arsenic still in the cup, and also found
t t traces of arsenic on the child’s dress
‘nus. |__-Where she had vomited, as well as in
, litt) } stains where she had spilled soda in
yale 4 the first spasms of her attack.

} The next question was, how did the
: are child get hold of the poison? Sheriff
re the Holley rubbed his chin speculatively.

lled | “TI’d have guessed there’d be some of
case that stuff lying around the farm some-

officer ” : “ * *
' where,” he said, “but if the girl’s
si oo father says he never uses it, I believe
a him. I’ve known that man all his life,
t thi He wouldn’t lie. But I'll go out there
hil ae and talk to him again.”
Sde. It In the interview which followed,
. Di Shirley Diann’s father retracted his
5 teal | earlier statements regarding the com-
ie ets plete absence of arsenic on his farm.
1 AY SOF The sheriff then asked the dead girl’s
l paeale mother to recount for him every.
a detail, however trivial, of the baby
5 CON- drinking the soda, and what led up to
estab- it.
gested As he headed back to town after-
ward, Sheriff Holley reflected that the
rlogist, interview had been fruitful. Some
id questions were still unanswered, but
; a couple of significant facts had
1€ | emerged. For one thing, the child’s
at the == mother had not been the one who
poured the drink for her daughter.
arm. to She recalled that when Shirley Diann
father and Earle Dennison returned from the
—_ be store, with the soda and candy, the
ty; he aunt had gotten the glasses from the
henifé cupboard and the opener from the
vegas | drawer.
dC CUR: og Standing at the kitchen counter,
en she |

Earle had removed the caps from the
bottles and poured the drinks. She
served her own and the mother’s
drinks in glasses. She poured Shirley
Diann’s into the baby’s favorite plas-
tic cup. The mother had not watched
her as she did this. None of the candy
had been given to the baby; that was
being saved for later.

. Sheriff Holley’s next question as-
tounded the parents: “Can you think
of any reason why Mrs. Dennison
would have wanted to poison her
niece?”

The very thought was preposterous,
they declared. Earle couldn’t have
loved the baby more if she’d been ,
. her own daughter. She was utterly
devoted to Shirley Diann. She had
vowed to leave everything she had
to make sure the girl got a fine ed-
ucation.

Before leaving, Sheriff Holley
picked up the empty bottles from
which the soda had been poured. He
said he would turn them over to the
toxicologist; it was just barely pos-
sible the pole had gotten into one
of the bottles at the soda plant. .

Tests later would show the bottles
contained no arsenic.

‘ Sheriff Holley went to confer with
Circuit Solicitor Winston Huddleston
(Continued on page 62)

a is

scitipaslaegtinicching bg Tu at ahs W

“No white woman has ever been executed in Alabama,” Earle said, confident the
governor would give her preferential treatment since he was “nice, a real gentleman”
A { v x <i ey ‘


A Aaa He

¢ pe HORACE DE VAUGHN, black, electrocuted Kilby Prison =
. oes, , on April 6, 1927 (Jefferson County)

"auburn B, Moore and his companion who were slain Wednesday (1-19) night, parked their automo-
bile on the lonely road, An approaching automobile was heard and Moore, hoping to avoid detect-
ion, got out of his auto, raised the hood and began tinkering with the mechanism. The muruderer
C stopped his car and brandished a bouble-barrelled shotgun. The woman companion, seeing the dan-
ger, got out and ran awaye The assailant then fired into Moore's face as he turned to face the
murderer, The shot gun then was turned on woman and the other barrel fired. Moore's body
found immediately beside car; hood of automobile had been raisedg door of auto was opens
| woman's body found 75 yards from auto at a distance which indicates she fled when she saw what
| ‘ was happening; Assailant evidently pursued a short distance, Moore, an official of Southern
| \ Railwaye His wife and children were visiting in Chattanooga. At one time he had been yardmaster
a s of Finley Yards, north Btham,e He had check his suitcase at checkroom of Terminal Station on
% ‘ afternoon of meeting and was due in New Orleans next day for meeting with railroad officials.
Had been robbed of $50 in money and a gold watche Crime at 9:30 evidently when shot Bkard but
noone investigated, A black laborer on way to work on morning of 1-20 found bodies and Moore,
\ Supt. of Safety and Sanitation of Southern Railway identified by papers on body, Woman subse-
| ouently identified as Mrs, Ruby Thornton whose husband also out of town, Mrs. Thornton was 336
| She had been shot through back of head as she flede She and husband separated and she lived
sewer with her parents, Had a 9-year-old daughter. She and Moore had left her parents residence
at 9 PM, Crime occurred 200 yards off Ketona Road which turns off main highway to Gadsden at
Roebuck Country Club. A portion of her underclothing, evidently removed before killing, was
ane | found as was a whiskey bottle almost empty. She was clutching handkerchief in hand. Moore had
filed voluntary petition of bankruptcy earlier jin day, Moore's brother, Haynie Moore, had been
| killed in gun duel 15 years previously in North Birmingham when he and a man named “oland
| = Shugart shot each other to death in a streat duel caused by family difficulties, Shugart had
married Moore's sister, and shooting had follo@ed charges that Shugart had mistreated her,
causing her to return to Moore family home, BIRMINGHAM NEWS, 1-20-1927.

Moore was O-years-old, Both bodies had been stripped of valuables. NS, 1-21-1927


NEGRO SLAYER OF
“TWO FIRST VICTIM
OF ELECTRIC CHAIR

Continued From Page 1

the second floor of the east block
of the main cellhouse. Hardly a word
was spoken as they mounted the
stairs, and waited for a moment
while a steel door painted a bright
green, and set deep in the masonry,
was opened. Down a narrow seman
on the left, a turn to the right, an
they were in the death chamber,
which, with the deathcells, is isolated

with the closing of a single door,
The officials andy guards quickly
made ready thé huge white chair
with its many straps and wires. The
witnesses shuffled restlessly, cigarets
and cigars were lighted and,thrown
down after a few minvfes. There was
the sound of a metal door being
opened and shut as one or several

i persons went into the room adjoin-

ing, where the electrical apparatus
| is installed. Minutes that seemed like
hours passed in tense silence, Then
suddenly from down the outside cor-
ridor, came the sound of singing, as
De Vaughn and the three negro
ministers with him, lifted their voices
in fervent supplication in the singing
of a hymn. The voices rose and fell
and rose again, in. the haunting
pathos that characterizes all negro
spirituals. .

All at once it was apparent that
the sound of singing was drawing
nearer, Presently DeVaughn, walking
with a firm step between two of
the ministers, Dr. G, W. Williams
and Dr. F. W. Jacobs, both of Mont-
gomery, appeared in the entrance to
the chamber. Just inside the door,
where the guards and officials waited,

‘they halted, then moved on several

haway.

broad iron stairway, leading up to.

|sang with the minist

from the remainder of the prison:

yjand Hamp Draper, associate member

m facts, We picked at random

testing Michelin tires opposite
helins proved shementean baehak.
r what other
tire you are
promise you

lleage if you
Michelin Tires
of us.

id Motor Co.

R DISTRIBUTORS
ingham, Ala.

lf
Phone 4-2727

lcome to Our Store

comers
in
footwear

steps. It was then that DéVaughn, |

glancing , saw the chair for the
irst itme. He gazed at it. for a mo-~-
ment, without fear, then looked

Sings With Ministers
Standing there only a few feet from |
the spot where he would. soon be
launched into eternity, DeVaughn
s the remain-
ing stanzas of the hymn, At a sign
from one of the preachers, all three
knelt, and the other minister said a)
prayer, asking forgiveness and salva-

tion for the man who was about to]

die. f i

They arose from their knees. De-

Vaughn's eyes swept over. those about
him. He was quite calm, He was)
asked if he had any statement or
confession to make and answered in
‘a strong ‘voice: “No, sir; I don't
‘believe I have... Some one motioned |
to the chalr and directed him to 4it
in it. He did so, unassisted, after his |
spiritual advisers had shaken his
hand and said "God bless you.’ |

As the straps were being drawn|
tight, the Rev. Pearson ‘sald: “I will}
see your mother soon.” DeVaughn}
replied: ‘Tell her goodby for me, |
and God bless her.” He then began
murmuring with eyes closed, over and
over, in a tone searcely audible,
“Lord save. Lord save me.” A black}
cloth was drawn over his face. Still

he continued to murmur his prayer, |

The guards, their work done, stepped

back. A signal was flashed to the}
inner room, A switch level clanged |

and a great humming sound filled che
death chamber.
Vaughn's body gave a sudden violent
start, and then relaxed, inert. The
humming noise rose to a crescendo,
then slowly subsided and abruptly
stopped.

First Shock Not Fatal

Dr. Burns and Dr. Sewell, stetho-

scopes to ears, advanced, placed the/

ends of the instruments above the
man’s heart and listened intently. In
a few seconds Dr. Burns stepped

back. “He's not dead,” he said. Again
the signal was flashed. Again the
current was turned on. Once mer

the physicians listened with their in-
struments, and the second time Dr.
Burns announced: “His heart is still
beating.” The third signal was
flashed. The buzzing sound rose once
more, and again spirals of smoke}
arose from the electrodes strapped
against the man’s legs.

Suddenly the buzzing again cease:l.
Once more the physicians advanced,
listened intently. Several minutes
went by. Then Dr. Burns stepped
back and turned. “He is dead,” he
said. Dr. Sewell nodded.
the officials left the room. The wit-
nesses passed into the hallway from
the chamber where the odor 2f
scorchde flesh was plainly noticeable.
The unstrapping process then began
and witnesses and officials moved
away, walking-on tiptoe past the cells
of sleeping prisoners on the way out.
Absolute silence prevailed throughout
the huge building.. Apparently every
one else was asleep.

Those present at the execution in-
cluded Charles A. Moffett, presiden:.

of the state board of administration;
Warden T. J. Shirley, the Rev. Mack
Brassell, state prison chaplain; at-
tending prison guards,
men and George Moore, brother of
the late A. B. Moore. Early in the
day DeVaughn was told that the
brother of the man he killed had
come all the way from Kansas to
witness the execution. He
Warden Shirley, it is stated, to per-
mit Mr. Moore to be a witness, stat-
ing that he was sorry for: what he
had done. 5

Message To Mother
The last message of DeVaughn was

‘Dear Mother: I received your
most loving letter and you may know

Mother, do not worry, because I have
made my peace with the Lord and 1
am ready and willing to go.

you's tonsider that some. day we

to rest. Tell Mr. Josh Wilson I am

prepare to meet me.

pared, for the Lord came this morn-
Ing and made everything all right.
T have been happy all day. I have
been praying, but the Lord never
came until I turned loose myself ani
did His will. When I lost my will

| this: morning He brought péace to

my soul,

“T have no fear of dying. I know
that even now Jesus is waiting to
take my soul. Now, mother, I want
you to meet me in Heaven, go do not
be deceived in being ready, because
the Lord will not come unless you
come His way. You will know when
He comes, because He takes all fear
away.

“Tell all of the family at home
that I say prepare to meet me in
Heaven, and don’t let Satan deceive
them out of their soule. Pray that
God may help» them to be true
Christians.

“Yours in Heaven,

“HORACE DEVAUGHN.”

There was a poatscript to this
letter, which was addressed to De-
|Vaughn's aister, “Ollie.” It said:
i“My dear Sister Ollie: The last
time that you and I were together
at Mr. Lindsey's on Sunday = night
you were talking to that woman from
Avondale. You told her that -you
were weak and wanted her to pray
for you. Now if you feel anyways
weak yet you ask the Lord to for-
give you of your sins, that He may
make you rejoice in His salvation.

“You must go t6 Him His
and believe that He is
give you, Don't go wil
will, because He will
remembered you because of my own
self. IT am saved and I want you
to prepare to meet me. Your brother,

“HORACE DBEVAUGHN.”

In the chair, De- |!

Some of}

newspaper |,

asked |

a letter to his mother, which is as
| follows: :

that IT was glad to hear from you. }

I want)

have to part, so don’t grieve, but pre- |
pare to meet me, because I am going |

giad that he {s praying for me, so}

“Mother, I know that I am pre- |

way
going to for- |
th your self- |
not come. I)

“a

as




Ney FOS s

: 4 ’ bie K reine
2 FLIStOry:
ere m

_- Couple. Electroouted ate

reretes epee fens eae
wove gi, mpunaitan. tra! cm!

BROTHER OF SLAIN MAN:
SEES LIFE SNUFFED OUT

Fe cee cee oe OE

THREE SHOTKS REQUIRED To

STILL HEART; vicTiM, NEAR
- COLLAPSK AFTER | HOURS
, OF PRAYER, SAYS SOUL SAFE

ave

by LEWEY- ROBINSON
United Press Staff Corrcsepondent
Kilby. Prisoa, . Montgomecry,.

7

to save hi» soul, Horace De™
Maughan, negro slayer of Auburn
' B, Moore and Mrs, Kuby Thorn-
| ton, died here ip Alabama's clece_|

tric chair at: (12:42 am °
"Though near a breakdown ats”
ter hours. of prayer, the negro
wont to his ‘death without col-
la pee,though—lew
- to stand,’ he. gtenped inta the
~ghalr_unassisted,
THe hee to - “Aida wie" OBSPN
Moore, pf Coffey~” -r Kansas,
H-brether—of-one-of-—the==vtotim tr;
looked on unmoved. J. C. Thorn-
ton, husband of the dead woman,
was unable to gain admisslon to
the death chamber, although he
was in the warden's office during
the ,execution,

Moore, after exhausting | every
means to secure permission to
witness the execution, was (Cinally
admitted to the.death chamber by
special request of the man who
+Was.executed, —

The execution, the first elgctro-
cution In the history of Alabama,
-went-off-smoothly,-De-Vaugha-was,
a man of surprising: vitality, doc-
tors sald, It required three shocks.

of 2,000 volts each to upill his heart
The first shock was at- 12:31 @nd
oA intervals of
ail twe tier

“given. y
7 ’ Twenty Present .
The execution was witnessed by

20 people,
De Vaughn ‘was convicted ‘of the

murder of Auburn B, Moore’ and

Mrs. Ruby Thornton on a lonely

road near Roebuck“the night of

January 16. .
Moore's head was blown off with
a shotgun and Mrs. Thornton was

killed In the same: manner after

she had fled; terror sticken. down

a path leading from the spot where

Moore had parked their automo: |

bile a few moments before

murder. _ 4
-- Robbery was believed to be we

motive for the crime.

we

I:
¥Q Oo;

Ala., Apr, 8—While wambliing :|:
‘| a—feeble— prayer,beggthg—vesus— |:

aly

land for him.

= T

i. i

4

Fan armiof the electriq chair, For

i el]

es ne aie

thts te bir

Etec “

G: Sh

The slayer was traced from the
two shells, which were marked In
a pecullar manner by the defec-
tlyve hummer of the =“ us-
ed. phic ig

~The axeoudien—-elmexade-pishicr
OT MOTTO Tor the pritow-witn-roTe
of the inmates asleep and with
the negro prisoners worked up to
a high emotienal pitch by the
doleful songs that came from Do
Vaughn's cell.
=o De-Vaug hrr—began preying ery
the prison gongs rang for supper.
He was constantly on his knees
unti] the march to the death be-
_gan._He—prayed_incessantly—_and
begged the death watch not ta
leave him alone. .

On a nee +.

with De Vaughn tually all day,
but left the prison shortly before
dark for a little rest, De Vaughn
begged for thelr return and they
came back early in the evening
and tin the cel) prayed with him

Ate No Dinner. o¢ Supper -

De Vaughn ate no dinner or
supper, leaving his plates untouch-
ed and refusing proffers of cigar-
ettes or soft drinks,

When the prison clock tolled
midnight, Dev’: Warden. D B.
Johnson went into the cell, —

“Well, Horace, you'd better be-
sin getting ready,” he said.

negro moaned inarticulately
una nodded. -

De Vaughn and the two minis-
ters fol] on thelr knees and =
Vaughn began to pray,

At 12:26, De Vaughn tottered in-
to the corridor and took hie place
between: two guards, The procee-
salon marched. slowly down. the
corridor and then ‘“rned mes the
death chamber, . J

When: he entered the ehambst:
De Vaughn saw the: chair. for the
first time, He looked ‘at~it “and
then looked away, mumDiing &
prayer under his breath. ‘

De Vaughan and. She : eainteters
knelt ‘for prayer,’ As De. Vaughn
aank to' his knees he threw out a
hand for support and it rested on

a moment he didnot realize where
his hard was and. when be did, bhe/|’
snatched it-away as if the ae
burned Aim.
After, the pra rer, Deputy Ww
den Johneca | ‘gala sake
“Horace is cance any lest. ‘aoq

fina) statement: you tigh to make?
’ 00 you. y: mak" aE ‘b
y to Die*'’

—-- - bem mad feome tha


t:
Negro Slayer” Executed,”
Die In: Chai

- (Continued from: page .1).

yan come ‘and *; ‘ie without hard,
feeling towards ‘anybody.- 1 want
you té tellamy mother ‘goodbye and
tel) her that my soul fs. ne
| That's -all I have..to..say. ef
SAM right, Horace,. Have a seat”

and, the” warden motioned . ‘toward
the electric-ehair... «.  \ a)

though his movements were ‘slows.
“He” gat. gown , inthe chalr ;nd
hardly had. He done 80 unti! four
Fruards we re working eeey with
hae le.

carried out, De- Vaughh- sat mum-
“bling , “Jesus,:- save me!"", “Jesus,
have: ‘merty!"”. and* ee: foe
merciful!!’, ee rn i 4:

__..For_an _instant.. nothing. nase
‘pened. Then. from the adjoining;

i| dyngmos, ©
Then without warning,. Be
| Yasann’e body surged: forward
psainst the ‘straps cand quivered,
|. a. thin gray, ‘smoke... rose, "3p
alder’ {Hechelmet., ;
Tp. the room there was the 4

we

flesh.” is yt ao
“At: the” aie phock; ‘the: “amoke:

and. Yellow. flame rose ‘from:. the

De Vaughr did not hesitate;: atm l

Emenee |

While ‘sprepgrations “ werp hetag.

‘| room, came the, sinister whir . |

powering: odér of: burning . human’

‘trom’ the- helmet ‘hecame © ‘thicker: .

| on the, mans 1%. -
” Atter: the second: shock, » phys!
‘clans examined; approaching -. the
chair gingerly. He was’ not. dead.
Third Shock Ends Life.. »°-
“hey. stepped back. After ‘the
thica, shock, De ‘Vaughn. WAS. ‘agaln
‘examine >and pronounced . nd
Bpeat otk tilea* out ., of the:
chamber: agxious. ‘to get away Gon
the awfy) . odor. and “sight. of: De
-Véighn’'s body’. stumped . against
‘the atrage that held: it, upright.,’
{- Bafore Yeaving™ ., Georges Moore

“ed. it. cldfely. We agkedsfor., a ‘sou-,
‘ven{r. ane one ob the Byarde: cut

1, approac ed'*the body, and . examin- }

‘ott a, vest ta De Vaughn's belt,
qand: ighves to: nln “

fe . ; *
he Cae tn a ee

Teg get a


DICK, a slave, hanged Fayette County, Alabama, on June 20th, 1832.

The first man to hang in Fayette Co. (Ala.) was a negro slave on
June 20, 1832. He was convictred of an attempt to violate the
person of a young white woman. Evidence was corcumstantial.
Although there was no light in the room except for a few coals in
the fire place, the young woman and her sister identified the man.
He protested his innocence, and the well-to-do family, to whom he
belonged, put forth every effort to save him. Peter Martin
defended him but he was convicted by the jury and wsentenced to
hang. Strong efforts were made for Executive clemency and a long
petition was drawn up. The largest crowd of people ever to
assemble in Fayette was on hand on the execution date. The
defendant at the place of execution denied his guilt. The sheriff
was ready, made fast the rope, and the cap was adjusted, when when
a member of the family handed the sheriff a respite from the
Governor, postponing the execution for three weeks. There were two
more short respites. The defendant was finally executed still
proclaiming hi s innocence. Mr. Powell does not divulge the names
of any of the parties concerned."

(Letter from Mr. A. K. Callahan, 250 Crescent Ridge Road,
Tuscaloosa, AL 35401, dtd. 4/11/1975, citing THE ALABAMA HISTORICAL
QUARTERLY, Winter, 1942. "Thirty-Five Years in West Alabama, by
Hon. E. A./ Powell," copied from the TUSCALOOSA GAZETTE, beginning
August 12th, 1886.

"To His Excellency Jno. Gayle, Governor of the State of Alabama

Your petitioners respectfully represent to your Excellency
that on the 16th day of the last month, a negro man named Dick was
tried before the Judges of the County Court of Fayette
for an attemplt to commit a Rape on the body of Rebecah Thompson ,
convicted and sentenced to be executed on the 25th of the same
month, but was respited by yr. excellency until the 30th of this
month.

From the most impartial consideration of this case, we feel
compelled to say to Yr. Excellency that the Jury who pronounced
upon it must have been influenced more by the exasperation of
publik feeling than a deliberate conviction of his guilt. The
evidence was mostly circumstantial only, and it is extremely doubt-
ful that the slave ever attempted the commission of the offense of
which he has been convicted. We need not dwell in this petition
on the case of making the charge of Rape, and the difficulty of
defending successfully a person against such charge. It is a crime
we all know deserves the most exemplary punishment and nothing but
a belief of his innocence has induced us to trouble you with this
appeal to Executive clemency.

We are confident that yr. excellency in deciding upon the
application of the accused will not subdue the sentiments of plity
and (?) which plead in his behalf as a friendless and unfortunate
individual, unless such sentiments be manifestly opposed to the
stern and imperious dictates of Justice.

/s/ John Bankhead, John Hollis, M. McNeil and George Bankhead."

Paftera af Sov. fete. fayls, hea Apt. }7 fehir-e> x


“ ‘SH 2

4 a Ola Co.
| BCE cong Geer Z,


"Fayette County 21 March 1832.

Your Excellency as I understand has had sundry petitions sent you
about a negro man Dick now in our Jail under sentence of the (?).
This is my apology for troubling you with sonme thoughts which have

occurred to me on the same subject. I have never seen any of the
petitions which have but I understand they are on each side of the
question his execution, etc. I left home immediately after his

commital to Jail and was absent until the day first appointed for
his execution. I was much gratified which he received as it does
appear to me unnecessary to carry the sentence of the law into
execution so speedily as contemplated by the late law. I donot
wish to be understood as expressing an opinion either in favor of
or against a reprieve as I did not hear the testimony on the trial
and the opinions which I casually hear among the neighborhood are
so variant that I could not form one satisfactory to myself but I
listened some time to a motion in our Circuit Court on yesterday
which had for its object to test the constitutionality of the late
law uneder which said negro was tried and although the said law in
the Opinion of said Court is constitutional, it does apperar to me
that that different courts may differ in Oplinion, for instance if
a County Court should deem the law unconstitutional & the Circuit
Court in said county whould be a different opinion, what would be
the consequences. Taking this view of the subject if there was
some way in which question could be settled speedily it would
certainly be desirable - and now the present appears a chance. If
your Excellency should be of the same opinion, it might perhaps be
desirable that a respite should be granted to this negroe until
after the Supreme Court may decide on said question - every end of
Justice would then be fully satisfied be the result as it may.
I remain respectfully, etc.
Jesse Vanhoose.

(Papers of Governor John Gayle, Alabama Department of Archives and
History, Mont., AL.)


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FT ET Rem SSR AT YT RR CaN RE PN 88 TENCE I Te Rm a me _ _ ede nr tte on ne ata ee eee eae

"To His Excellency John Gayle Governor of the State of Alabama

The undersigned petitioners beg leave to represent to your
Excellency that on the 17th day of the last month a negro man named
Dick was brought to trial before the Judge of the County Court of
Fayette for an alleged attempt to commit a Rape on the body of a
certain Rebeccah Thompsson which terminated in his conviction and
he was accordingly senttenced by the Court to be executed on the 25
th day of the same month. But the time was prolonged on
application to your Excellency until the 30th day of the present
month.

Your Petitioners pen this to present that without, in (?) so
remote a degree, intending to concern the court or jury, they are

of opinion that the said slave was not guilty - at any rate the
evidence was too vague and circumstantial to authorize a
conviction. The identity of the offender was not by any means

satisfactorily proven, as it was dark and at a late hour of the
night.

The enormity of the offense said to have been attempted to be
committed was well calculated to inflame and exasperate the
feelings of the publick which rendered it extremely difficult if
not impossible to give the said defendant a fair and dispassionate
trial.

Under these circumstances we recommend him to you as a fit

subject for Executive clemency and plardon. We are confident that
yr. Excellency in deciding upon the application of the accused will
not subdue the sentiments of duty which plead in his behalf as
friendless and ujnfortunate being, unless such sentiments (...?...)
to the stern and (...?...) of Justice and your Petitioners as in
duty bound will ever pray.
/s/ John Morgan, Nicholas Alley, (?) Neal, James M. Morrow, John D.
Morrow, Josiah Morrow, David Morrow, (?), James G. (?), Jacob S.
Morrow, John Morrow, Elijah Bingham, Harrelson McMinn (?) Cockran,
John T. Musgrove, and Robert J. Rayburn.)

(Papers of Gov. John Gayle, Ala. Dept. of Arch. & History,
Montgomery, AL)

‘ - ;

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"To His Excellency, John Gayle, Governor of the State of Alabama.

The undersigned Petitioners beg leave to
replresent to your Excellency that on the 17th day of last month a
negroe man named Dick was brought to trial before the Judge of the
county court of Fayette County for an alleged attempt to commit a
Rape on the body of a certain Rebeccah Thompson which terminated in
his conviction and he was accordingly sentenced by the court to be
executed on the 25th of the same month. But the time was prolonged
on application to your Excellency until the 30th day of the
present month.

Your Petitikoners further represent that without in ever so
remote a degree intending to censure the court or jury they are of
opinion that the said slave was not guilty at any rate the evidence
was too vague and circumstantial to authorize a conviction. The
identity of the offender was not by any means satisfactorily
proven as it was dark and at a late hour of the night.

The enormity of the offense said to have been attempted to be
committed was well calculated to inflame and exasperate the
feelings of the publick, which rendered it extremely difficult if
not impossible, to give the offender a fair and dispassioonate
trial’.

Under these circumstances we recommend him to you as a fit
subject for executive clemency and pardon.

We are confident that your Excellency in deciding upon the
application of the accused will not subdue the sentiments of plity
which plead in his behalf as friendless and unfortunate being (?)
such sentiments be manifestly opposed to the stern and imperious
dictates of justice.

And your Petitioners as in duty bround will ever pray, etc.
/s/ William Bullen, Ezekiel Powell, Joseph Mullins, Elijah Bullen,
Wm. Woods, Seaborn Jones, John Stringer, Daniel May, James
Laurence, Thomas Kelly, John Smith, Wm. Metcalfe, John McClure.

(Papers of Gov. John Gayle, State of Ala., Dept. of Archives &
History, Mont. AL).


‘

-, DOGKERY, Edwin Ray, white, elec.

Bees

SY IAVISE

Lot vor (Patnson t ahew heir

a

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BAR

eos



DIXON, Cap, black, hanged SXMMMMMKXEXUM Marengo Co, AL June 8, 1906

Pu car DIXON. nN ANGED. oe
| = Brae “RATE oy ee
Weagte Murderer - ef: / Marengo Connty .
| Paya Death Peseity. :
h | Demopolis, June ¥.—-(Special.)—Cap |
Dixon, a negro murderer. was banged
at the county jail-In Linden today. Tha
. Jertme ‘for which he pald the death pen- |
alty was the murder of another. negro
about two. years ago. He was ‘con-
victed. and acntenced to. be hanged at
the spring co of the Marengo county
etreuft. court: In .1905. -His case was
‘carried: to: AW Gudvelie Court and’ the
decision . at the lower court was at.
firmed.
The nesebaneball: croutte: and erand
stand will be inv readiness for a game
here. with Uniontown next>: Tuesday.
The local team. fein Uniontown today.
Grand Secretary «George A. Beau-
champ, of. the M: sonic: bodles' of Ala-
bama, spent. two days’ in Demopolis.
this week and while here conferred the
Reval Arch degrees on a team ‘for Jef-
ferson chapter of this elty. :
Congressman Georgwa -W. Taylor Js
home for a few days. . pS

es

Martyr AL

'1IOL

IL Ob


CAP DIXON PAYS =
THE DEATH PENALTY

Special to The Bieitance: News.
DEMOPOLIS, Ala., June 9.—Cap Dix-

on, the negro murderer, was hanged
in the jail yard at Linden yester-
day morning at 8:30 o’clock. The

| hanging, which was the first to take
/ le. wn a ‘place in- Marengo county in. several
years, was witnessed by a large crowd.

Fel ¢ : : ae tou no demonstration, ae exe-
cution ng carried out {n perfect or-

ft Oe Vay der. Dixon was game to the last. The
at, i trap was sprung by Sheriff Jackson and

the negro’s neck was broken, death re-

sulting in twelve minutes.

arf, FA LJ Dixon was one of the negroes who

: LT ~ TG LZ some months ago, with another negro
fr cr murderer confined in the jail, made a

/ / oY - # j break for liberty....In the attempt. to
= } cf / escape the other murderer was killed

by. Deputy White. Dixon was thought
to have been seriously injured, but he
rapidly recovered from his injuries and
the date. ‘of, his execution was changed
and set for Friday.

0-@0

f ~ —— -

Cap Dixon Hanged.»

- Linden, Ala.,° June 8.—Ceop Dixon, a
negro, Was henged in the Marengo coune-
ty jatl today. for*the murder bi ‘another:
Bs i — wwe. yore. 6am .

+ fo,
ne Te Sea ae

oe er 16 (A
6-9-1706 (3/2

| Linden, June 8.—Cap Dixon, a negro,

‘was hanged in the Marengo county jail
; today for the murder of another negro
| shout two years ago.


DORSEY, W,ll, black, hanged Birmingham, Ale,

350 33 SOUTHERN

is no estoppel. Bigelow, Estop. (5th Ed.) 51-
61; Russell vy. Place, 94 U. S. 606, 24 L. Id.
214; Hooker vy. Wubbard, 102 Mass. 245;
Lantern Co. v. Meyrose (C. C.) 27 ed. 213;
Burlen y. Shannon, 96 Am. Dee. 788; Gil-
breath y. Jones, 66 Ala. 1382; Greenwood
vy. Warren, 120 Ala. 78, 23 South. 686. The
question here is, not whether the issues made
by the pleadings were broad enough to pre-
sent for consideration and decision indebted-
ness vel non upon the mortgage debt, but it
is whether that disputed question was neces-
sarily tried and determined. And the fact
that it was actually tried and determined
must appear with reasonable certainty, and
not as a mere matter of inference or argu-
ment. Strauss vy. Meertief, 64 Ala. 310, 38
Am. Rep. & Lven a probability will not
supply the place of definiteness and certainty,
and, where an inference is relied upon, it
must be a uecessary and an irresistible one.
How can it be said with any.degree of cer-
tainty that the dismissal was not on account
of the variance, but on account of the find-
ing by the chancellor that there was nothing
due upon the mortgage, or on account of
both? I do not think the record furnishes a
suthHelent answer to this inquiry, and there
fore entertain the opinion that the estoppel
relied upon by complainant has not been
shown. The inference that the chancellor
found nothing to be due upon the mortgage
is not a necessary one to uphold the decree.
On the contrary, the decree can well be sup-
ported upon his finding that there was a ma-
terial variance. And this, I entertain no
doubt, was the ground of dismissal of the
bill

=————_——

(134 Ala. 553)
DORSEY v. STATE.*

(Supreme Court of Alabama. June 19, 1902.)

ROBBERY—PROPERTY OF INFANT—GIFT FROM
FATHER—UNSUPPORTED COUNT — INSTRUC-
TION TO FIND NOT GUILTY—PROPRIETY.
1.The payment of money to an infant as

wages by his father is an absolute gift, vesting
title in the infant, so that an indictment for
robbery from the infant must allege property
in him, and not in his father; the case being
unlike that of necessaries furnished by a father
to his minor child.

2. Where, in a prosecution for robbery on two
counts, the evidence supports one, but wholly
varies from the other, accused is nevertheless
not eutitled to an instruction to find him not
guilty under the latter count; the most he has
a right to being an instruction that he cannot
be convicted thereunder.

Appeal from criminal court, Jefferson coun-
ty; D. A. Greene, Judge.

Will Dorsey was convicted of robbery, and
appeals. Aflirmed.

Bowman, Harsh & Beddow, for appellant.
Chas. G. Brown, Atty. Gen., for the State.

McCLELLAN, ©. Jy As it appeared orig-
inally in the transcript, the first count of

*Rehearing denied February 3, 1903.

3~27=1903,

REPORTER, (Ala.

the indictment employed the word “fell-
nously,” where the word ‘“feloniously” should
have been used, aud in the second count the
word “feloniously’ was omitted. ‘The copy
of the indictment sent up in response to the
writ éf certiorari, however, shows that it
employs the word “feloniously’ in each
count. So that the brief of counsel attack-
ing the indictment as first certilied to us has
now no pertipency.

The indictment is as follows: ‘Ihe grand
jury of said county clarge that before the
finding of this indictment, and before the
lith day’ of February, 1898, Will Dorsey,
Sidney Walker, and Jim I<elly feloniously
took seven silver dollars and one silver half
dollar, of the silver coin of the United States
of America, the property of George McNa-
mara, from his person, or in his presence,
and against his will, by violence to his per-
son, or by putting him in such fear as to
unwillingly part with thé same. The grand
jury of said county further charge that before
the finding of this indictment Will Dorsey,
Sidney Walker, and Jim Iselly, feloniously
took seven silver dollars and one silver half
dollar, of the silver coin of the United States
of America, the property of Dave McNamara,
from the person of George McNamara, or
in the presence of said George McNamara,
and against bis will, by violence to his person,
or by putting him in such fear as to un-
willingly part with the same; against the
peace and dignity of the state of Alabama.”
Yhe evidence showed without conflict that
George McNamara was the minor son (14
years of age) of Dave McNamara; that he
lived with his father, and was supported
by the father as a member of the family;
that the boy worked for his father, the lat-
ter agreeing to pay him $7.50 per month for
his services; that the father had just paid
the son a month's wage, according to this
understauding; and that it was this money
that was taken from the boy. On this evi-
dence the defendant requested the follow-
ing charges: ‘(1) If the jury believe the evi-
dence, they must find the defendant not
guilty under the second count of the indict-
ment. (2) If the jury believe the evidence,
they must find the defendant not guilty un-
der the first count of the indictment. (8)
If the jury believe the evidence, they must
find the defendant not guilty. (4) The court
charges the jury that, if George McNamara
was under the age of twenty-one years, that
all personal property claimed by said George
McNamara was the property of the father;
and, unless the evidence shows that George
McNamara was over the age of twenty-one
years, or had been emancipated by his fa-
ther, or had his disabilities of nonage re-
moved, then in that event the jury cannot
convict the defendant under the first count
of the indictment.” The father being entitled
to the services of his unemancipated minor
son, the payment of wages by him to the
son is, of course, in the nature of a gift;

OT Spee


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‘led
nor

the 3

pitt;

PASM eee

La.) BRADLEY-RAMSAY LUMBER CO. y. PERKINS. 3851

but the executed gift (the purpose to give
having been carried out by delivery) by the
father to the son vested the property—the
money —absolutely in the son for all the
purposes of this case, and left no property
or possession in or of the money in the fa-
ther. Stovall v. Johnson, 17 Ala. 14. The
case stands upon a different footing from
that of provision by the father of clothing
and the like for his minor children under
the-duty the law imposes on him in that con-
nection. Such provision, though a gift in
a sense, is made for the father’s own pur-
poses, and for uses it is his duty to con-
serve, and in respect of which he has such
Interest and control as leaves in him property
In the things so provided. And in these
eases, On an indictment charging larceny or
other offense requiring the averment of own-
ership, property may well be laid in the fa-
ther, and probably also in the child who
has the possession and use and right of
use. 2 Bish. Cr. Proc. § 721. But on the evi-
(ence here the gift was absolute. It was not
made in discharge of the father’s duty to
support and maintain the son. The father
had no interest in the uses the son should
make of the money, and no control in respect
thereof. He parted with all his interest in
the thing given, and the son acquired the
full rights of ownership in and to it. Upon
these considerations we are come to the
opinion that a conviction could no more be
had on the second count of the indictment
that had Dave McNamara, in whom the
property is therein laid, not been the father
of George McNamara, from whom the money
was taken. There being this failure to prove
the averment of ownership as made in the
second count,—a variance, indeed, between
the allegation and the proof of ownership,—
the defendant was entitled to have the jury
Instructed that they could not convict him
under this count. But it by no means fol-
lows that he was entitled to have them in-
structed “to find him not guilty under the
second count,” which was the instruction he
In fact requested. In the first place it would
seem that the charge asked had a tendency to
mislead the jury to the conclusion that be-
cause of this second count they should ac
quit the defendant. But the charge was ob-
jectionable aside from that consideration.
When there is a count in an indictment under
which, on the evidence, the jury have a
right to convict, it cannot be said to be their
duty to find him not guilty under any other
count; for, if they reach the conclusion that
the defendant is guilty under a count which
is supported by the evidence, they may stop
there, without considering other counts at
all, and, of course, without finding the defend-
ant to be not guilty under another count, which
the evidence fails to support. And in such
case,—which fs the case here,—while a charge
that the defendant cannot be convicted un-
der the count as to which the proof has fail-
ed should be given upon request, the court

is under no duty, and, indeed, it is not au-
thorized, to instruct the jury that, if they be-
lieve the evidence, they should find the de-
fendant not guilty under such count. Upon
these considerations we hold that the court
properly refused charge 1 requested by the
defendant. A like ruling has been made up-
on like considerations in civil cages, Rail-
road Co. v. George, 94 Ala. 201, 10 South.
145; Lailroad Co. y, Sandlin, 125 Ala. 585,
28 South. 40.

The evidence was without conflict, as we
have seen, in proof of ownership in George
McNamara as laid in the first count. It also
Supported the averments of that count as to
the guilt of the defendant. It follows that
charges 2, 8, and 4 were also properly re-
fused.

Aftlirmed,

(109 La. 317)

BRADLEY-RAMSAY LUMBER CO., Lim-
ited, v. PERIXINS, Tax Collector, et al.
(GUARDIAN TRUST CO., Intervener),
(No. 14,419.)

(Supreme Court of Louisiana. Jan. 5, 1903.)
APPEAL—REVIEW—MUNICIPAL ORDINANCES—
—RAILROAD AID—SPECIAL TAX—CON-
DITIONS SUBSEQUENT.

1.A judgment will not be reviewed in this
court at the instance of a litigant who has nei-
ther appealed, nor asked for an amendment.

2. Municipal ordinauces otherwise valid may,
like the acts of the legislature, be adopted to
take effect in the future, and upon the happen-
ing of a contingent event.

3. Where a special tax has been voted by a
few wards in a parish in aid of the construc.
tion of a standard-gauge railway, which is to
traverse the state aud connect with roads be-
yond its limits, the fact that the aided company
buys a narrow-gauge logging road, already in
existence, covering an insignificant proportion
of the whole distance, and converts it, pro
tanto, into the staudard-gauge road to be built,

will not defeat the right of such company to.

the tax,

4. An agreement between taxpayers and a
railroad company which has obtained aid, by
means of a special tax, for the construction of
a road to extend across the state, to the effect
that the company is to construct and maintain
at a_ particular place “its repair shop and
roundhouse,” cannot reasonably be construed to
mean that it should construct and maintain but
One repair shop and one roundhouse on its line,
and in such case the character of the shop and
roundhouse called for by the contract is to be
determined by the requirements of the road.

(Syllabus by the Court.)

Appeal from judicial district court, parish
of Calecasieu; Conrad De Baillon, Judge ad
boc.

Action by the Bradley-Ramsay Lumber
Company, Limited, against John A. Perkins,
tax collector, and others. The receiver of
the Guardian Trust Company intervened.
Judgment for defendants, and plaintiff ap-
peals. Affirmed.

Leon Sugar and R. P. Williams (T. T.
Taylor, of counsel), for appellant. Pujo &

7 2. See Municipal Corporations, vol. 36, Cent. Dig.
277.

UNIVERSITY OF ALABAMA —

tag? 26 Win,

wk Pees Sate es a

A - Seances = ee et cee ene i 3

“ Th Th

tric chalt sari today, one of
them With ah agonized scream as
the 2200 volts of electric ‘qurrent

—atruck him

Cooper Drake; 31, paid with his
life fot shooting a 4year-old white
boy through the head after al

Jegedly raping the child’s mother4
alera. The other condemned) —

near ¢
man, 32-year-old Andrew Lee Smith,

was ptt to death for. killing two}
white policemen at Alden, Jeffer-|

gon County.
DRAKE. WAL KING into the ex-

ecution chamber in a jaunty man-

ner, déclined offers of help and
eaid to guards: “Let me set up by
myself, captain. I just want to be

, able to set up by myself.”

Alternately humming spirituals
wd praying and thanking officers

who guarded him during his im-

prisonment. the Negro smiled when

- Chaplain J. E. Franks recited the

last vetse of the sixth chapter of
Romans which says, “the wages of

gin. is death.” Drake said, a like |

that verse.”
He cfiticized, however, a man he

with the National Association For/||
the Advancement of Colored Peo-|
ple. He told Chaplain Franke to|
give this message to Matthews: =|
~ "Tell him he wouldn't help me.

_ I don’t know the reason why. But

the Lord makes everything | all
right.” .

wer to his ailing mother he sent|

this message: “Tell her I left with
the faith.”

THEN HE CALLED for Deputy |}.

Wardeh O. R. Dees and thanked
him “for being -so faithful to me.
You're a nice fellow. Continue to
be that way.”

Drake: appeared to break Aw.
however, after the mask was slipped

over his face and called again for|]

Dees in a quivering voice. He ap-
ntly tried to say something else
ust — voltage was applied and
is voice trailed off into a weird
*0-0-0-0-0-00h.”

Drake was strapped in the chair
at 12:23 am. (CST) and pronounced
dead at 12:29.

SMITH. WHO preceeded Drake
to the chair, got his first jolt at
12:08 a.m. and doctors pronounced
him dead five minutes later. He
declined to make a statement.

The two men lost their last chance
of escaping the chair late yesterday
when Gov. Gordon Persons refused
to interfere.

Drake had one of the Shortest

elemency hearings ever held in Ala-
- bama. It.lasted scarcely 10 minutes.

He was convicted of shooting tiny
Date Holley while the child was
{mn his, mother's arms, then killing
the child with shots through the
head. 7

Drake also was, ‘charged with as-
gaulting the boy’s mother but was

ne not tried for this,

At an earlier hearing Smith was

© eonfronted by the widows of two

@lain police officers who demanded
that he be put to death.

- The condemned Negro admittedly
ghot and killed Police Chief Stan-:

ford Howton of Gravaville and Con-
stable Sam Linn after they raided!

A

= | diee game at his home. ial)

-Arthella ("Bunt") DuBose, hanged at Butler, Ala,, on 5-1-1908,

Had murdered Mr, Hodges in January. Hanged on Friday, May 1, 1908,
Execution inside jail before only a few witnesses, Tried at Spring
term of circuit court. Had little to says Said he was ready and
was not being hanged for a crime he had committed but was being
hanged merely to satisfy law. JUSXAXXSKEXH to black minister, said:
"Brother, tell my sisters and brothers and my people to meet me in
heaven, Tell them I am going to heaven and I want them to meet me
there." His neck was broken KXK&K but he lived longer than usual
when the neck was broken, it being 18 minutes before he was pro-
nounced dead, The first hanging in Choctaw County before that of
a black, Jim Miller, for wife murder, who was hanged on 1-1)-1887,
over 21 years previously,

Gondensed from CHOCTAW ADVOCATE, Butler, Ala., May 6, 1908; provided
by Joseph Caver, Dept. of Archives and History, Montbomery, Ala,


2 RG 6 Aa

mets Arthella (Bunt). black, hanged Butler, Choctaw County, Alabama,
on May 1, 1908,

. DUBOSE, ARTHELLO (in jail)

Attorneys: G. H. Carnathan
\ J. M. Miller

plead not ‘guilty and not guilty by reason of insanity

4

trial date set for Thursday 26 March 1908 | 4

50° names drawn for jury |

“STATE TRIAL DOCKET (Circuit Court) 1905-1916, page 27
_ In Choctaw County courthouse ¥° 57;5-58, 59

So. ek:

The State vs. Arthella DuBose- charged with 2 counts of murder

|
t a Rs my pe Re are: . .
| “#37, 38

abated” by the death of the defendant
ebared py the death of the defendant

| TRIAL DOCKET STATE CASES(in the Circuit Court) 1905-
In Choctaw County Courthouse

_ Cannot tell if the spelling is Arthello or a


LEGAL EX TIONS I” CHOCUTAW COUNTY before 27

Choctaw County has had many bizarre and violent crimes during tie years, It has had
a reputation for frontier style living and dying for many years, and it is only in
the more recent years (since World War II) hat law and order have begun to take
hold with a fair amount of impartiality where race is concerned.

There heave bean numerous killings, but people alive today can remember only one legal
execution, There may have been others in the 1870's, 80's and 90's, but I do no
have time to do a thorough research job on this, Also, those apprehended might have been
sentenced to life instead of receiving the death sentence, :
Only within the last 15 years has a white man been convicted of killing a black,
according to local gossip. , ;
The following is an account of the crime leading up to the one legal execution, as
told’ by the victim's daughters, Mrs, Vadie Hodges Littlepage and Mrs. Mary Emma
Hodges Thrash, both residents of Choctaw Countys

4 ;

John Hugh Hodges, a prominent resident of Mt, Sterling, was on his way to Lavaca
where he worked. He had been to Robjohn to help his school-teacher daughter, Annie May,
move her trunk to a new boarding house, and from there he had had supper in the home
of a good friend, Mr. Smith. Riding along in the dark, whistling as he customarily did
he was ambushed or waylaid, shot and killed by a bladk man, "Bunt" DuBose, on Jans
2, 1908. Mr. Hodges had helped "Bunt''s father have him committed tothe State asylun, —
and "Bunt" held a grudge against Mr. Hodges. "Bunt" wes mentally unbalanced, or "crazy"
as some described him. When he was released and allowed to come home from the asylum,
he decided to "get" Hodges,

At the trial DuPose admitted the murder, and testified that he heard Mr. Hodges
riding along, whistling "Will there be any stars in my crown", DuBose shot one time
and missed, Hodges called out to ask who it was, and what they wanted, The second
shot got Hodges inthe heart, splattering with blood his pocket watch and fountain pen

bs

carried in the pocket near the heart. Hodges fell from his horse and died on the spot.

DuBose, who lived very near the scene of the crime, saw that a Negro woman and small
Negro girl had witnessed the murder from across the road. He shot and killed the woman
with his one remaining bullet, and then killed the child with an ax, He then set the
house afire and burned their bodies, A11 of this happened between Lavaca and

Tuckabum Creek, DuFose then took Mr. Hodges's horse and fled, Some said he went
acrose the river,

John Hugh Hodges and his wife and 7 daughters and one son lived at Mt, Sterling
in the levely old plantation house called Deep South, He was overseer for Julian
Watters’ large plantation on the Tombigbee Fiver, Hodges, born in 1856, wes 52 years
of age at his death, He had first settled in Choctaw County in a community called
Thompkinsville, where he opernted a store, The little community of Robjohn, was aamed
for him, his name being John. The Rob part of the name came from Robert Edwards,
who also operated a store in the same community.

DuBose might have been an intelligant black. Mrs. Littlepage thinks he might even
have had a teaching certificate. One of his sisters was a teacher, and Mrs. Thrash
said she did not hold his act against the rest of the Dubose family, or Negroes in
general, It was blacks who found the body the morning after the crime, and reported
it to the Norwood family who lived necrby,

Mr, 7, J. Hollis represented the family at the trial,

The wife and children of John Hodges just happened to be in the yard the day of
the execution, and Mrs. Thrash remembers seeing her mother cry as the wagon carrying
the body of the murderer passed their home on the way to the Neero cemetary between

Mt. Sterling and Tuscahoma Landing, Mrs, Thrash, in spite of Losing ner father, is glaa
the execution was legal, and the man did not die at the hands of a mobs


ey a De 2
LEGAL EXECUTION IN CROCTAW COTINTY BEFORE 1927

Interview with Mrs. Josie Rell “ilcox Thrash, davehter of the Sheriff at the
time of the crime and execution, . 0, Wilcox: 3/2/77

I remember vividly the horror of the event sand the following days. My mother was
uneasy for days, as my father was the Sheriff of Choctaw County, and sworn to yphold

the law. Mr. Beaury @ook had been sheriff, and had resigned. My father, who had been
Mr. Cook's deputy, was 2npointed Sheriff, and served from 1907-1911.

Someone came to the house in Butler to get my father wfter they learned of the murder
of Mr. Hodges, Father left, along with my brother, Curtis Wilcox, who was then a
law student at the Univ. of “a., and the deptty sheriff, Jessie Turner. They found
a large crowd of men, friends of the victim, in charge ofthe black man, Othello

v Dubose, amd the crowd intended to lynch him,

My father, who told many times of the incident, said to the mob: "If you wanted to
hand that nigger, you should have done it before I got here, £ have swomn to protect
the prisoner, and I would hate to shoot one of my friends for a sorry niggere™

(Mama would not Jet us call them niggers, but Papa probably said it that way.)

a
«

The crowd could tell that Wilcox was not bluffing, that he meant to take the prisoner
back to the jail in Butler for a trial, They were a large and hostile crowd- tore
the shirt from my father's back, With only two people to help him (my brother and
the deputy) it took him 911 day to get the prisoner, He had the authority to
deputize anyone to help him, tut seeing the ugly modd of the crowd, and knowing he
cou'd not depend on the friends of the victim ttpo carry out his orders, he did not
even try this,

They brought the accused back to Butler to the jail. Hearing rumors that there was a
plot to break into the jail and lynch DuBose, they decided to take him on to Meridian,
Miss. to the jail there until thing s cooled down, Papa and my brother had to go
down in the dark and change the tongue from the surry (which wouldn't make the trip,
due to deep ruts in the road, etc.) to the light-weight buggy. They could not use any
lights, because they did not want people to see them and guess what was going on. ©

The prisoner was put in the foot of the buggy with Curtis guerding him, and Papa drbdve.e
Deputy Turner stayed at the jail. A

Mama said she was terrified the mob would come to the house and ask for the keys to

the jail. She told me she would tell them she could not give them the keys, but would
tell them where they were, and they could get them for themselves. She intended to
throw the keys into the well on the back porch when she saw the mob coming, She =axxm
mor walked the floor all that night. fortunately dhey never did come to the house. _

Sheriff Wilcox's team of horses would not make the trip to Meridian, so he stopped

at ex=Sheriff Beaury Cook's home at Pushmataha, on the way to Meridian, and banged on-
his door in the middle of the night. Cook gave them fresh horses to finish the trip,
then went into Butler the next day to tell Mrs. Wilcox where her husband was,

After sentiment died down, the accused was brought back to the jail in Butler, and
stayed there until the trial. Sheriff Wilcox had to perfprm the execution, which :
was held sometime in the Spring (possibly May), at the (old) Choctaw County jailecay /7c ©,



The slayer was traced from the
two shele, which were marked In
a peculiar manner by the defec-
tive hammer of sietal shotgun uUs-

of the inmates asleep and with
the negro prisoners worked up to
a high emoticnal pitch by the
doleful songs that came from Do
LE Veugnaie cell.

the prison gongs rang for supper.
He was constantly on his knees
unti] the march to the death be-
gan.—He_prayed_incessantly—_and
begged | the death watch not ta
leave" _ alone. :

with ty Vaughe | 3° ta all 49,
but left the prison shortly before
dark for a little rest. De Vaughn
begged for thelr return and they
came back early in the evening
and in the cel} prayed with him
and for him,

Ate No Dinner. or Supper -

De Vaughn ate no ‘dinner or
supper, leaving his plates untouch-
ed and refusing proffers of cigar-
ettes or soft drinks,

When the prison — clock tolled
midnight, De--'- Warden. DB.
Johnson went into the cell.

“Well, Horace, you'd better be-
sin getting ready, "he said.

Gre negro moaned inarticulately
und nodded... .

De Vaughn and the two minia-
ters fell on thelr knees and De |
Vaughn begen to pray, 5 |

At 12:36, De Vaughn tottered in-
to the corridor and took his place
between two guards, The proces-
sion marched. slowly down. the
corridor and then ““rned ads the
death chamber, , u

When; he entered the chamtse;
De Vaughn saw the ‘chair. for. the
first time, He looked ‘at~1t “and
then looked away, mumDiing «
| Drayer Under his breath. ‘

De Vaughn apd. the ; . ministers
knelt for prayer,’ As De, _ Vaughn |
sank to’ his knees he threw out a’
hand for support and It rested on
fan armiof the electriqg chair, For
@ moment he did:not realize where
his hard was and.when be aid, he
snatched it. away as if the —_
burned him...

After, the pra er, Deputy wi
den Johnesn | aafa: wkend
_ “Horace ts there any | last. ‘aeq.
fina) statement: you wish ta make?
ts a Yau. may. makd: | yh if

S to Die” +?

tan. + want, to, my: *, Pe Vi

ere pecreadt


Choctaur County Public Libary

124 North Areademy Avenue
Butler, Alabama 36904

March 27, 1987

Mr. Watt Espy, Jr.
Box 277

Headland, Al. 36345
Dear Mr. Espey:

I am helping the Choctaw County Historical Society organize and
arrange by date the old courthouse records which have been thrown on
the balcony for about 50 years. The ceiling has leaked on some of
them, they have warped, molded and mildewed, and just sat there
getting extremely dirty.

We have found some books we thought had burned in the 1871 fire!

At any rate, I am still hunting your information about Othello
(Bunt) DuBose. I am enclosing a copy from the Sheriff's Register
for 1907-8. He is listed as ARTHELO DUBOSE. They probably did
not know how to spell his name. He was sentenced to hang May lst.
So justice was short for him- he was only in jail from March 18
until May 1.

The old papers from the trials are in terrible state of disarray.

We are hoping to get them organized this summer using CETA workers
(who -require TONS OF SUPERVISION). Perhaps then I can find

what you really want to know about Bunt DuBose. It seems there were
lost of people arrested here for murder, and I am wondering why he
was the only one executed!

Hope your work is progressing nicely.
Sincerely yours,
Ann H. Gay

PS I have not done a thorough search for DuBose yet, but thought
this little bit might help.


ded Wh de a aN 3 \ the g Be chore abe re hese? hen oe A ain ah he te thd g Ae heed

Ade alee dod shanna be eg

Making good his vow that no prison could hold him, Frank Duncan, right, twice

escaped from the old Jefferson county jail in Birmingham, Ala., below. Arrow

points to the cell window (subsequently sealed) through which the daring
desperado made his first break for freedom.

‘pi rid may 4 “

‘ he A

ham in 1900. ‘The Alabama nights
were warm and fragrant. The gay
laughter of dark-eyed southern belles
strolling along the moonwashed streets
with their smiling beaux echoed the hope-
ful promise of a new century.
In downtown saloons men leaned com-
fortably against gleaming mahogany
By bars, chatting and joking noisily, end-
lessly. Glasses piled in glittering pyra-
mids before the elaborately soaped

J AC K KY ] LE mirrors sparkled in the reflection of flick-
ering gas lights.
40

S ham in returned early to Birming-

~

TARTULA GS

Tans. 143¥

i GR ‘

, “ " J fe
ee agi ae
hi

Poo”

oO

I .
a bd *
oe

Life was pleasant in Birmingham. And
yet, like the heavy clouds of black smoke

‘that plumed from its giant steel furnaces

day and night, a pall of apprehension
hung low over the city.

Somewhere on the dimly-lit streets,
mingling unknown with law-abiding citi-
zens, stalked a grim menace, laden with
dynamite and bullets and death.

It stalked with cruel, relentless tread
between the shutteted red-light district
appropriately called ‘“Buzzard’s Roost”
and the most exclusive residential sec-
tions, Murder, robbery and safe blowings
followed in its wake. An unknown man,
his skull smashed and his pockets emptied,
was found sprawled in an alley at “Buz-
zard’s Roost.” <A restaurant owner, a
bullet in his heart, was lifted from the
~— sidewalk in fashionable West
end,

The night of. March 28, 1900, was

STARTLING DETECTIVE

~ Devectwvé

Amid th
phanton
and loot:
clever da
an

moonlit and :
hours J. A.
at the Stand:
avenue and |
a premonitio
tried vainly t
Clayton g!
saw that it w
am open wil
but he hear:
the wind. T)
puzzled by th
After com
he went into
plant manag
chair, Fool:
he afraid of
was no mor
others he ha
pany’s prope:
His thoug!
suddenness o
from the cha
open with a
Through +
line of men.
grimly cruel.
with pistols.
Instinctive
darkened cor:

ADVENTU!


CEIVE

Mm ee

others followed in rapid succession. The
recruit policeman clutched at his abdomen
and fell heavily to the pavement. .

No sooner had the gunfire started than
Kirkley whirled, pistol in hand. But he was
cut down by two rapid-fire shots from the
younger suspect’s gun. The veteran crum-
pled on the sidewalk. ,

Adams was gravely wounded. Blood
streamed from his wounds and darkened the
pavement, but he was not conquered. With
a desperate effort he struggled to his feet
and emptied his gun at the two assailants,
But he was staggering drunkenly and the
shots went wild. His immediate supply of
ammunition exhausted, the patrolman fell
again.

Crowds had rushed into the streets at the

first rattle of shots. Bullets spattered among.

them, driving them back to cover. The
heavy gunman, still shooting wildly, fled
down 20th street and disappeared. His
smaller companion dashed down Third ave-
nue, cut into an alley and also escaped.

Adams and Kirkley were lifted from the
blood-flecked sidewalk and rushed to a hos-
pital, but the latter died after fleeting spans
of consciousness in which he was able to
give little information. Doctors agreed that
Adams could not live.

An enraged police department launched
a search, combing the city’s underworld
haunts during the remainder of the night,
but no trace was found of the killers.

Police Chief W. A. Austin was firmly
convinced that the Phantoms had shot
Adams and Kirkley. Assembling the entire
police department he called for early arrests
of the killers and a sweeping cleanup of the
mystery gang. Detectives Bodcker and
Disheroon were assigned to head the man-
hunt. .

On the following morning the search
gained momentum. Detectives swept into
every known criminal haunt, rounding up a
score of suspects. But among them were
none who fitted the slayers’ descriptions.
Employes at the Simon saloon were ques-
tioned closely. They declared that they had
never seen the two gunmen before they
entered the saloon the night of the shooting.

[Continued on page 65]

ADVENTURES

Frank Miller, the crime-hardened gangster shown
above, turned viciously on his patrolman-captor
when he was being taken to a police station for
questioning, and wounded him fatally. Opening a
mysterious package addressed to Frank Duncan in
prison, chief deputy Albert Stradford found the
shoes below, in the soles of which were several
carefully concealed saws.


man Clayton in the Standard Oil rob-
bery. It was identified by a peculiar
marking on the barrel, which Clayton
had described to police.

Among the captives was a slender,
blond nian with a short mustache who
fitted the description of one of the killers,
He sullenly refused to talk, but one of
the women told police all they wanted
to know. ' i

“What do you want with him?” she
cried. “He hasn’t done anything. He’s
been with me all the time, I tell you. He
oom’ do anything without my know-
ing!”

fWwho are you?” she was asked.
-“T'am Myrtle Duncan,” came the
proms reply. “This man is my husband,

rank.” ;

Thus a woman entered the case who
was to be praised and condemned. Re-
spected by some as a wife of unparalleled
devotion, she was despised by others as
a woman who would resort to any ex-
treme to gain the freedom of her man.
Even today, more than 30 years after-
ward, Myrtle Duncan's role in the dark
drama is an occasional subject of con-
troversy.

Officers described her as a hell cat.
She fought them as they handcuffed her
silent husband and threatened them with
death if they took him away, But at
other times she was quiet in her grief,
willing to abide by any regulation that
would allow her a few minutes in Dun-
can’s cell, f

On Sunday, Duncan and two men
giving their names as Tom Fay:and John
D, West, were returned to Birmingham
by Bodeker and Disheroon.. The detec-
tives were certain that others captured
in the raid had some connection with the
gang but evidence was insufficient to
remove them to Alabama. :

When the prisoners were placed in jail
at Birmingham another woman in Frank
Duncan’s life entered the scene. She
was Blanche Williams, who admitted
living with the suspect at various times.
She said that Duncan had lavished money
and other gifts upon her and that he
had been madly jealous of her, But when
the accused gang chief sat helpless in
jail, Blanche Williams turned against
him coldly.

“So you got him, did you?” she asked
police., “Well, they always get caught
in the long run.”

She was asked if she would identify
the prisoner.

“Sure,” she laughed, “I can identify
him before I see him. Look on the back
of his neck; you'll find a scar there.”

Officers checked and found the identi-
fication accurate.

But the woman Duncan had married
did not turn against him. Myrtle Duncan
tearfully followed him to Birmingham,
determined on a desperate fight for his
freedom. :

With five suspects held in the investi-

ation, detectives brought them before

atrolman Adams when the wounded
officer rallied sufficiently to study their
faces. Without hesitation Adams pointed
out the men called Frank Miller and
Frank Duncan as the gunmen who shot
him and Kirkley. He said that Miller
shot him, while Duncan killed his fellow
officer,

The investigators left no loophole
through which the accused men could
escape conviction at.the trial. They had
Adams identify and call by name several
friends who came into the room. They

66

were anxious to establish the fact that
the patrolman was in his right mind
when he named the killers.

Soon after identifying the. slayers
Adams lapsed into a’coma and died the
following night, ;

Employes of the Simon saloon identi-
fied Deron as Miller’s companion on
the night of the slayings.

City -and Jefferson county officers,
working day and night, now slowly began
untangling some of the mystery threads
that linked the Phantom Gang. Aniong
other things they discovered an amazing
list of aliases for each prisoner that made
their true identities a confusing issue.

The man called Frank Miller also was
known as “Dutch” Miller, Karl Henry,
John Manning, John Hendricks and some
dozen other names. Duncan was known
as “Slim” Edwards, Frank Winters, J.
W. Wilson and many other aliases.

The Jefferson county grand jury, how-
ever, refused to concern itself with
names. The jurors returned first degree
murder indictments against the two
leaders under. the names of Frank Dun-
can and Frank Miller. John D. West,
Tom Fay and Frank Randolph were
indicted ine robbery. At the same time,
an indictment was returned against one
“Shenandoah Red” Brammer, but he was
never apprehended.

N MAY 7, 1900, in a courtroom
packed to the doors, Duncan and
Miller went on triaf before Judge
Samuel Greene for the slaying of Patrol-
man Adams, Circuit Solicitor Charles
W. Ferguson, Solicitor H. P. Heflin,
Assistant Solicitor John McQueen and
Attorneys B. M. Allen and Fred S.
Ferguson were in charge of the State’s
case. Attorneys W. P. Crossin and D. J.
Ponceler defended Duncan, while At-
torney Joseph H. Montgomery was
Miller’s counsel.

Montgomery fought for postponement
on the ground that one Frank Wilson,
who Miller claimed was a witness to the
oe battle, had not been located. Judge

reene denied the motion, remarking,
“There are entirely too many Franks
connected with this case.”

Duncan pleaded not guilty, denying
that he was present when the policemen
were shot. iller admitted being there
but claimed that he was walking ahead
with Kirkley and had not drawn his gun.
He attempted to bring a mysterious
figure called “New York Harry” O’Dowd
into the case, naming him as the actual
killer of both patrolmen.

But the prosecutors grimly went about
the task of knotting the gallows rope
around the prisoners throats, The dying
words of Patrolman Adams weighted
heavily upon the jury. Witnesses to the
gun fight named Miller and Duncan as
the killers,

Blanche Williams had rallied to Diin-
can’s standards. After testifying that
the defendant had been in love with her
for a long while, the blonde witness de-
clared that Duncan was not: present at
the shooting. He was with her in a room
over a downtown restaurant at the time,
she claimed.

Myrtle Duncan sat at her husband's
side and sobbed quietly as the other
woman told her story of illicit love and
lavish gifts.

The jury was out less than an- hour.
It returned a verdict of death for Frank
Miller and life imprisonment for Duncan
in the killing of Patrolman Adams,

In subsequent trials Frank Randolph

and John D. West were sentenced to 25
years in the penitentiary. Tom Fay was
given a term of 19 years. :

The two gang leaders received their

.sentences calmly and returned to their

cells in the Jefferson county jail, Miller
to await the gallows, Duncan, another
trial on the indictment charging him
with the slaying of Patrolman Kirkley.
tein apparently were resigned to their
ate.

But the two desperadoes still had a
card to play. On the dark and moonless
night of July 19 they sawed the bars of
their cells and dashed for freedom. Both
succeeded in reaching the outside wall
but there they were captured and placed
in solitary confinement. An exhaustive
investigation was made but the saws
were never traced.

In the sultry, early hours of July 28.
1901, Frank Miller walked steadily to
the scaffold. Before starting the last
walk he revealed to a minister that he
had once studied for the ministry. Suave
and educated, Miller stood on the trap
and made a short talk in a calm, even
tone, then Japametes to death.

Public indignation over the long span
of mob terror was now only partly
diminished. Duncan’s death at the earli-
est polis date was demanded. Thus,
in the October term of court, 1901, the
slender gunman heard himself sentenced
to die for the slaying of Patrolman Kirk-
ley. Again Myrtle Duncan fought des-
perately for his acquittal.

When her tearful pleas failed, she
rented a room near the jail, determined
to stay near him to the end

Duncan's jailers ‘watched him day and
night. They knew that in his clever
mind the threads of escape were weaving
constantly. Twice he was foiled. Deputy
George Courson frustrated one attempt
when he found three saws concealed in
a belt belonging to Duncan. A few days
later Chief Deputy Albert Stradford
discovered six saws in a pair of shoes
that had been mailed to Duncan's cell-
mate from Cincinnati.

Again officers sought to trace the saws.
But they could establish no concrete
evidence against anyone.

Aber 4 o'clock on the morning of
poten g A 21, 1902, factory whistles
screamed in Birmingham, bells rang
madly and crowds congregated hurriedly
in the streets. Many believed a fire had
broken out in the downtown district, but
they soon learned the stunning news.

Frank Duncan had escaped!

From the gray dungeons of concrete
that were the county jail, the gang chief
had led three other dangerous criminals,
all charged with armed robbery, to
freedom.

Duncan had fashioned an oak key
to fit the cell block lever. Saws
again had been provided from some
mysterious source. The convicted killer
and his three companions sawed their
cell bars, unlocked the cell block lever
lock with the oak key and dashed into
the outside yard. There they decided
against attempting to scale the glass-

- studded wall, sawing the back gate lock

instead.

Sheriff Andrew W. Burgin, vowing
that he would hang Duncan the minute
he was recaptured, launched a nation-
wide manhunt. Assisted by Chief Deputy
Stradford he issued more than 500,000
circulars with the gunman’s picture and
description. These were distributed in
every state.

Birmingha:
deputies
closely.
Myrtle
where her ev
her actions
declared tha:
her husband

Then cam
After days |
nessee detec
farm near N
to be Dunc:
the arrest b
the trap.

Less than
were mappi
hunt in Te:
robberies an:
ida. Banks.
looted in ra
ities posted
for apprehe:

Meanwhik
circulars and
for Duncan’
slipped into
killer.

On the cr
tember 23.
received a ti
hiding out |
Tavares. A
tectives ru
surrounded
Sleeping on
found two :
name as ):
other as Fr:

The men
at Tavares «

But amon
the arrests
recognized |
Ahn was ce
face somew

Late int«
arrests Ahn
Before 'i+
of whi
one sid
again (oe
from his cl

“Towant t
little blond

Facing h:
bars, the dk

“What's 1

“Why, 3:
returned pr
me?”

“The thi
Ahn replied
lying. I kn.
fame is Fr
victed Alab.

The slen
silently for
spreading o

“Well, if |
at last, “v
about it?”

Alabama
Duncan wa
He was pl.
with a gua:
He laughed
and talked
adventures
But he we
secured the

Loyal stil
to Birming’
less fight fe
had desert:
fell upon ¢
tenced to «
1904.

enced to 25
m Fay was

ceived their
ed to their
jail, Miller
an, another
arging him
an Kirkley.
ied to their

still had a
id moonless
the bars of
edom. Both
sutside wall
{ and placed
1 exhaustive
it the saws

. of July 28,
steadily to
ng the last
ster that he
istry. Suave
on the trap
i. calm, even
cath.
1¢ long span
only partly
at the earli-
inded. Thus,
irt, 1901, the
elf sentenced
rolman Kirk-
fought des-

» failed, she

my day and
n his clever
vere weaving
riled. Deputy
one attempt
concealed in
. A few days
rt Stradford

vair of shoes
Yuncan’s cell-

race the saws.
no concrete

e morning of
tory whistles
. bells rang
ited hurriedly
ved a fire had
n district, but
ning news.
red!
s of concrete
-he gang chief
ous criminals,
robbery, to

an oak key
ever. Saws
1 from some
onvicted killer
s sawed their
ell block lever
d dashed into
they decided
ale the glass-
vack gate lock

urgin, vowing
an the minute
hed a nation-
vy Chief Deputy
e than 500,000
1's picture and

in

a ssessnanionoanieens re
{

efter

oe mae

Birmingham detectives and sheriff's
deputies watched Duncan’s old haunts
closely, Their efforts were unrewarded.
Myrtle Dunean returned to Chattanoogin

where her every move was watched, But.

her actions were above suspicion, She
declared that she had no knowledge of
her husband's whereabouts.

Then came bitter disappointment.
After days of relentless tracking ‘Ten-
nessee detectives located a man on a
farm near Nashville whom they believed
to be Duncan. They swept in to make
the arrest but their quarry had escaped
the trap.

Less than a week later, while officers
were mapping plans for a sifting man-
hunt in Tennessee, a wave of vicious
robberies and dynamitings flared in Mlor-
ida. Banks, postoffices and stores were
looted in rapid-fire succession. Author-
ities posted rewards amounting to $2,000
for apprehension of the robbers.

Meanwhile Sheriff Burgin issued more
circulars and announced rewards of $1,000
for Duncan's capture. But the months
slipped into years without a trace of the
killer.

On the crisp autumn morning of Sep-
tember 23, 1904, Florida authorities
received a tip that two strange men were
hiding out in a cabin near the town of
Tavares. A party of heavily-armed de-
tectives rushed to the isolated place,
surrounded the cabin and _ closed in.
Sleeping on a pile of straw inside they
found two men, One of them gave his
name as John Fuller, identifying the
other as Fred Stafford.

The men were promptly placed in jail
at Tavares on charges of bank robbery.

But among the detectives who made
the arrests was one who thought he
recognized John Fuller. Detective John
Ahn was certain he had scen the man’s
face somewhere before.

Late into the night following the
arrests Ahn sat at police headquarters,
Before him lay dozens of circulars, one
of which had been placed carefully to
one side. He picked up this circular and
again studied it intently, then he rose
from his chair and headed for the jail.

“T want to take another look at the
little blond bandit,” he told the turnkey.

Facing his prisoner through the cell
bars, the detective questioned him.

“What's your real name?”

“Why, I'm John Fuller,” the bandit
ree promptly. “Why do you ask
me

“The thing that makes me ask you,”
Ahn replied slowly, “is that I know you're
lying. I know and you know that your
name is Frank Duncan, You're a con-
victed Alabama murderer.”

The slender prisoner looked at him
silently for a moment, a slow smile
spreading over his face.

“Well, if both of us know that,” he said
at last, “what's the use of arguing
about it?”

Alabama officers’ were notified and
Duncan was returned to Birmingham.
He was placed in solitary confinement
with a guards watching him constantly.
He laughed and joked with the jailers
and talked freely of his escape and his
adventures during his span of freedom.
But he would not tell where he had
secured the saws for his escape.

Loyal still, Myrtle Duncan came again
to Birmingham and renewed her hope-
less fight for the freedom of a man who
had deserted her. But again her pleas
fell upon deaf ears. Duncan was sen-
tenced to die on Friday, November 1],
1904.

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67


promptly denied
case until he was
f the information
‘orte and the other
nitted driving the
declared that she
condition as due
vith him when he
t her,
that he had gone
t admitted that he
wife on Sunday,
w things were,”
iead,
my tavern later
“and I told her
‘ed that it would
about it.”
‘lazed when these
her.
ned. “He's just
when he says I
ta fight. That's
e to tell when I
ling, and he said
¢ body!”
just a week after
found, Mrs. J_a-
were arraigned
J. Walters in
* murder,
juested separate
st to face a jury,
and five women,
ton October 31.
umed several
tless crowd
man to take
witness,
: made additions
s that rocked the

said shamelessly,
fused to go into
‘ond time before
Mr. Alberts was
I went with him
here and when I
v into a fury.

ot plenty of time
ent any for me!
30 lay there and

Alberts once in
id it, so I ywent
sed him to come
alone with him
When he finall

cked that man!’
| what he meant.
he said, ‘If any-
vt ever mention
iad a fight with

his own defense
denial of the
erating his pre-
had admitted to
rts when he at-

jury returned a
f manslaughter.
nother week of
ry was visibly
ne appeared be-
‘unnels for sen-
d a mandatory
in Michigan's
at Marquette
ral’ code, made
of two or more
record showed
ons.

which had
e LaPorte
ed with a

en ee ee 8 ee

Sriméon

Ne Bs

re
]

But Bodeker and Disheroon were
staunch believers in thoroughness. Who
were the three men with whom the killers
had talked in the saloon? Were they
members of the gang? The detectives
believed they might be the keys that
would unlock the riddle. They determined
to find the three men.

The investigation was facing a blank
wall the following morning when Special
officer H. F. Phillips, of the Tennessee
Coal, Iron and Railroad Company, pre-
pared to board a train at Irondale, about
five miles east of Birmingham. He paused
suddenly, his attention riveted on two
strange men who were boarding the same
train,

One of the men was blond and heavily-
built, the other blond and slender. Both
appeared extremely nervods.

PHILCIES was suspicious but wary.
He entered the coach and took a seat
directly behind the pair, watching them
closely until the train reached the out-
skirts-of Anniston, about 60 miles east of
Birmingham. When the train stopped at
the water tank there the two men rose
hurriedly and left the coach.

Phillips pondered a moment, trying to
recall descriptions of the Birmingham
killers. Then he also left the train and
hurried to the nearest telephone. He
called Anniston police and described the
nervous passengers, voicing his convic-
tion that they were the wanted men.

Anniston police immediately spread a
net, watching all roads and circling the
railroad station with officers, J.ate that
night they seized the two suspects as they
tried to board a northbound train, They
searched them for weapons but found
none, .

“What's the meaning of this?” the
larger man demanded.

“What's your name?” one of the of-
ficers evaded.

“I'm Frank Miller,” came the easy
reply. “This man is Frank Randolph.
We're going to Chicago.”

The officers promptly snapped hand-
cuffs on the two men. The large man
had talked with a heavy foreign accent!

While two fellow detectives sped to
Anniston for the captives, Bodeker and
Disheroon continued a sweeping investi-
gation in Birmingham. They made their
way into squalid “Buzzard’s Roost,” in-
terviewing scarlet-lipped women, gam-
blers, drunken derelicts and loudly-
dressed dandies but sig» found no clues.
Weary and heavy-eyed from loss of sleep
they returned again to the saloon to see
the trail of the three strangers.

The break came suddenly, They were
questioning a gambler about the three
men when he suddenly exclaimed: .

“Say, I remember something now.
There was a fourth man who said a few
words to those fellows. He didn't drink
with them —just walked up and _ said
something — but he must have known
them. Do you know the little guy every-
body calls Sheeney Bugs?” |

Bodeker nodded grimly. He was not

greatly surprised. For days he had

MeN T:

Or,
(ye a

‘Rai

AS Ag hs ay

by vat

watched the movements of the silent,
dapper man-about-town. Bodeker had
wondered about the man with the queer
name and many aliases but had never
been able to pin anything on him,

On the Thursday night following the
shooting, soon after the two suspects
were captured in Anniston, Bodeker and
Disheroon descended upon a downtown
rooming house and placed Sheeney Bugs
under arrest.

“What is this?” the startled prisoner
demanded.

“You're going to do some talking,”
Bodeker answered.

In an anteroom at police headquarters
the officers began pounding their sus-
pect with questions. He was stubbornly
defiant at first, hotly denying that he
knew anything about the Phantom Gang.
But as the night wore away and the
detectives continued to hammer at him
relentlessly, he gradually weakened.

At last, perspiration streaming down
his face, he leaped from his chair and
exclaimed :

“For God's sake, stop asking questions!
I'll tell you all I know!”

He slumped again into the chair and
proceeded to unfold an amazing story
of a gang that had operated brazenly all
over the country, robbing postoffices and
business firms. It was a gang of mystery
men who moved from place to place
with their sordid women. Even to each
other their true names were not known.
All had a dozen or more aliases; all were
tight-lipped and seldom banded in a
single group except when they were to
pull off a job.

” HO is the leader?” Bodeker de-
manded.

“There are two of them,” came the
reply. “One is called Frank Duncan most
of the time; the other “Dutch” Miller.”

The officers exchanged glances. They
had learned that the suspect captured
in Anniston had given his name as Frank
Miller, and that he talked with a de-
cidedly German accent.

“Where are they hiding now?” Dish-
eroon asked.

The prisoner hesitated a moment.

“They’re scattered now,” he replied at
last, “but you may find some of them in
Chattanooga.”

He named a house sometimes used by
the gang as headquarters.

Meantime, when officers reached Birm-
ingham with the Anniston captives, the
suspects were immediately confronted
by employes of the Simon saloon. They
positively identified Frank Miller as one
of the killers, but were equally certain
that Randolph was not the other gun-
man.

On Saturday morning, surprised in
a sudden raid lead by Bodeker and
Disheroon, eight men and several women
were captured in a Chattanooga rooming
house. In one of the rooms officers found
pistols and a heavy supply of ammuni-
tion.

Among the pistols was one Bodeker
recognized as the gun taken from watch-

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Wien ANswerine ApvertiseMeNTs, PLeasy MENTION JANUARY STARTLING Detectives ADVENTURES 65


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“olpbeshes! : ers P 3 i , ie ee Srnas eee,
: “ ee Be 7 HE te} CPs Ge it Waa ht Hel ryete psceted it fer

wee ee eae Rent lg pas 3 b's re gress arse a Bt ee hid the Meet 3 LibeNs Sarit goawdics.; BS dt Ce ep a

nomgpantia: aPperaty: was a Arete. ltt: ot @ wey fh tee fae: te ae tae Ree ah yee san
FT nag cite fant a thea, tas Wa ¢ Hin’ Mii gatiety THe NS bet 3
tba or Citatany abe 7h pokes peer of at rin it

se! cael “ et pae ae cs eat Prt ares tas
ks iar oe | i =a eotd ao dn

Vai h ors 4b ect en 8 ;
ia the : ehoreetiand i Were) gpeem
“beowt ve wea

i. St Ahy

thee? Yutear ey ‘Sas tee piesa! bey
piece Pus fhe ty et. ated READS: ;
tes paaie WERE ALE: areal st *
ies alt ARE Reson
eh ates aie

Ta the day ot
oka’ Fee = tats
d . a €3 MaAES 4S

PASS teh i inte oe a Rusa a8
oa Bena: ies cag: Piatra Aye a

‘te At TTS abied Gx the Cat ee
ae eee ec 3

rei Fo Prien sw Ma Boe i
m7 fens rerser bt Oks Biwe se:
“wa UR) Bap tat eae

ar spor tinak sella fe to
erie $8: rae : i

ape

itoe, thes
pineh HEBhE 3 slretciog :
ele ety a

ae Oh ieetth oe

Lig ott entaaters uineaas WRG AS
By ender) rete lanes, Corea 25 | oe tS
eigue aut as be DMakengh Anes oS


Pe mM tw
“} dieem le oa MO

WAS Bp tik gee

Semen entvarerywaemensteiesneh dare . é rei ree
siren : enprag ers thn 4 Rabe I ey ct me engin Ya Aeon tg <1 Se de tha ohana oven rte Peo -
Td he ee

DBRS: Oy SORE, Sern le Hy Puan Ae kan pe RLAEP EERIE ey ic ee Mee Yt ee cae ie pe eae A eed

< ~y s \ OL. xv fosNO* “omy" atc : Nay Leas BASES: 99 ie REPRISE DRA Ascttied ao SBIRAUNGHAM ALA, J _ NOVE:
ds hte cs Sey RAS a wah 6. pateliiasieeeteed sa ethichdew cops Sapendneb ates wp peop mceral vers ralvoni ees a ponent aeons Sven Soniyetaenstovaterteng srs top ners ius eran atone SSathensolonebe baie
Fg Gat aera resi et ey selon lene

ae DUNCAN PAID THE PENALTY it LeCTAC i) iT wan
MURDER OF OF FICER KIRKLLY ey TAN

i. aces “a can a et a ge ne —e Anam ie ere
x *
{

*

a SEVERAL ‘REPORTER KILLED]

a ne ek Wie fr Innocence and Deciared

hal Took Brave Men to, Leek, ‘Veen « y

a9 Me, Execution, Grent Matt: ap ay
2c wats ay Rese:
2Cc * ‘ a ; ae ne a G My = ety a Ln by
Ic Wn, | PUNCAN aes RELIGION |
fy 30, Ye : Seg ede Et Pati, 0.) A ye. vf < $ ‘~ z rs
¥ she a Peek 4 if ee ROL ee ee ee Wat f “LAEVEL. ANE: Qo Noe sy fast} Eee PO:
! geese, Yrack Trumcad. cant tied At the wales “ss tourette parrerasy bras Collide. (ie gambier |
% SS" ger of Poticn Citicer Kirkier, “waa FRED ESS ‘wth «@ soutictutnid chaste’ mat: “dete Appt fike- Iesbaidaa
8] Ba euted fu the yard of ibe ‘eomnty, jathy => i Northern Cte Tear fio, Riiiore F tories, Saite ‘shee ‘ess
eS on ote The drop folie Ike Bed at} neat Bettina spurt. The: eects
Bae: Poesy es Orlork be was ethetally. prot Caz PR anid. te Reon teen “cat 7m ter. ipetpone ae"
5G (FERN. © pounced dma Pag! mech Baal apeels ¢ epi of poriapkers: are Srpectes 5 Spence tls at
ts a broken, ee 3 By iy ? Nai yore d
Oc 3 The, bods wee phen fetanved 9 hen ric ead gratin VOOR AS»
Cc : > the pederakns iatdicaercat ayes bhewn te twenty pater e Te, ery «
aS:  Lige Loy, it with be taken to Basle po ok whom Mad utd’ me he ihr: ‘then! me lur >
“4 . ton, Oma, the heme of Duncans pe be Several were taker wet tn B dying ts.) Wm arent
a: * gente. for. Intermeyt. Es dishes,” Doctors bard toon acne 6 Phe Deeply bd
ark s = gee i: Tren thie dl ant, ether: nee pe ifhar rst.
“y i puncen mat pit death, bea cet. He thy painter : Sh the guebeeeat

said he wae fmnocent.cf mirdey.) Gade rsa

“4 * ne ther the tt
Raew M, the oMiiem whe bad worked} | The tray en eiuinng xiveat Ofiy hy the pote

pesties A Rorr hak eed abe enchte ak sae Tyctic. pan, os

oo tp the case. knew At, aad he, betievet - oe s i a eee
A. A aeat toe ahyeed, rusia oe te <3 tas Ke pase: fs
y te peae of. Birmingham Ny pt FS FRANK BUC AN EMM ad a are T =} Among vag the, inpred t= Vinten: Ww. i iavenue an
to, died ‘with a “prayer joc 2 Presins: et Con Yeunay ts ana tactine Lier Be

a aay
tae er oti ene: Prenton facture enh oie ee t

i ‘A BMay Got totxite. wie for whaGt Bae
“done,” he tried, wht ay the Bia
: re loa det Eres an
a aineng  thoxe oe ‘eit Qennes
4 eiecntion were Janws Kink ley, ot Mon:
“0 poe, Gale brother af phe poticemen: t ee
whase killiog Vinncia was - ctl
to eath, and Mesrra: ie
oe end Wiliam Ho clones, ac
Sia. aesd poiiemonas

: Retype.

THE “¢Lbaine HOURS oF : 5: salen tee de. ie pemet bbe coy he:
ne Yo FRANK OUNCAN'S LIFE mervedn OC Thales) Re. Salty bn
“oP yenk Puacan paront tris Vase wight £98 Berection wt the eatigry $1. argh) keto ah put
Gn earth quistiy. In! Uke sarly: ie Je strakeolt a nie Shab Liston ine the anthrax He. Wirs Ts: Soret? aun
othe bight. hataihed With tstting Wins IS bat eter, rahe AR EDANEES Hee bite aot of ‘lodbhing mau Ather eis the
paper thea end exchayent & Te ' Prnigitred “Abab whic. ean gryee bieg ae OO
4»

tN By ar i ba RAS ieee | ding Aeentotael iia es fae pene 4 : bio pereped Regan, Lie ene ee
ay seca! ew ok “Here witet gheemaqr aot te feng wi Seater & beghta aro (apd e3
rpasytvania eis Was Sait: Hers: bot

famt ttre eae ee Best ens at
Pregarations fer March, < WOULD LY Nil MAN

ob ORO SCCH SETH DEES EFOOTY

"hake Pea mn
eps foal IE UG oe

me, Be

Spa Ree teen kid tra math
a a 3 “Rhee: SENET at adoro Bled ARS he
sa ESE i NS Bleaphe Of FRA Gaur botige prey 7
ied: Amt een A Surntt $ratecs for she qa. te the gahewe®.
oma tRg PEERS? epaty Sheil Cuusensy FandedlS
‘ SYlintiwt s redler ahd A, Oy reecaik Sgt é
ites thon: Setar ait phe nde Pe Bara Be

2 pr

Ps

ARLEN: Mott,
ip aire. ‘Brh R34 Seer r= he B-
3 $. fins lhe BOTS
atts ‘biros Lyecesiy
of Soren be eraciog © ;
Cavey Joa shoveands “en ne

thes PAL Oe Bein eteignne

: with the death watch. which. Pee eee oy Ree toh dt Nits toleracpeation. |
Ee mated fot bi itynt wpsen Pre o> Es de" eat ban, ip istent heise a.
Fa Ae com
+ Bes
es
7

ey i. tbe
SS pert Seely tir fie
yet | feapectbbel sy hk
et oct

HANAE MENTS AeuSTEye
BMERICAN. conaqnes

Ate Win Ratton ooh 10d Deak un Rel a pete vaiuin aes

; pasties the tobe eration Smyth tes
“ ade . ae ¢ MY Lt Rare he fene. wt ahock thee trade ;
EA mf et Mapes Wie alte tel PS onus & dirayer: he deta lay Ot Tae,
3 Of oral A, RS “the: SEMIS al

iis, hie: i hud, > Take ete

» veteat {iy ‘ae 4 “Beene WHY: doe:

Bere te “het,
: he thier’ prepa


Tre Birmingheom News leada be
i se pike gt nae mee
Nt te print aft the time whtie the
4 i bioem jo on B, pas
ies oa

tte to

- boy say Omens Astin? ee ‘
.- ‘ sak aduBenk

VOL AVI SH0, oy plana Seed oye oe e Se BRAINS HAD Adah UID. AY. AE (EEN OUS ~ SOV EM

? me .
Page!
bei Siete: ”

ie eg eos gear oni oa ree a paar
ry 7 ge sates Aedoare 5

oe Semaprore wet,

ne |
ae 9 a ming tet = igen Reieden

spatinw en hh Soe tty He

a ~TRANK DUNCAN PAID THE PENAL ELECTRIC uA ri
FOR MURDER OF OFFICER hit) w) me

bi Saker Sachem ptm

=
—
=

ie ticeha eligi caPueaie ct Hla ae SSO OEY

es White oe eb
& ; me or : ie
FS “gs Dro Felt at ‘At: 30 a. am vand)
ates Hin Neck | Wa ; ie
; ¥ :
* AY ;
Ks ¢ - Reilarste Hie tambetecs ie Beciared

PAG ec Nae os

a Took Brave Men te ates Wipes :
oe Ke Eaacution, © Great "ee Mics |
3c : a one add Gatrecrd Arcund we
sc.) BE oes crime a

“ bd ; “
OF aod . “
ihe - :
“ Ste eereien .
>] se t i 5
"a (
+

a Stee reene a ae Fe Rn SIS pam eat Fy

Ic - SRUNCAN Accurte RELISION |

7 f : i , Se co 4 - “ " ee ee ae. |
13) 2 RV ELA NTE ORR Nae Ye a ikea SES “Matha
i Flam hy Peach in. Feet AER “ei Stet time Pe hab “
atthe ® ede. Be tat eh Sac thet tak ie Pe eet xo |

Soeediher 2% hug ot sot stay nap hie EN i.

te tte Atti a earn : Sith 4 |

Stay hh nace’ ty hanes het atcis as peeree: ool ;
MS og aeeting at > “Sper ements FEAL RRIF ;
withers,” A Bape “Beri ae on |

ae Prank henewa, mes ee ag Osa:

Ger Ag Trades to haer Kiva ey: Sas Maer
cet eke iy The wanloet she resety is
> AE niay oS taecat rag fs At EC Met at
ot. | = str ie bh legac ha wen etialls “erie
at | eee fwoane eae, ite nek, had. feat

Stat dee >,

~ Oe ed ele

pa eR wee eh : No Fert AO
5° Beets Datel Saree Aes
i PREYS Dateiaw hk +

4 Vb fa pee

Ca | + aa Drovkes: f ey $0 t,
Sc ; : | : i Ti: #t. evi ¥ ae ckaraoenyty vemnared >

Wl St Bas ME sie!

* tay * ate rinktnd” swine scett eet
x he TH Eee OM Ah ifn

bbe tic SE RE bet aeee fui Ree 2
tr. OW. We Bowe. of Thbiad sae >
. feu. fe Ripe BOF ‘ ise: f

Uianeag Kast Ritw chews me beazen

Rede Srey
Y ° fee |. eatd he war enter ot. avert! Lagat 3
y "2B ; . *
meet ; :
13
-

dit iseh sex TK Wey te aoe
+

Dele tithe Ther tie 4

Se ‘

: RP COTS SL pee trae

Vie Leathe ees Sr eiatinr ae

nies At ee beg tes Page ae WHS ONS
Mes F

cheated. 2 if 3 :
Pavesi: fen, te siueet } WP ise

‘ Sow oee HS the utete whee Sot Reeth

a Pat the Cave Kote 76, “edd Ate. believed:
& » Mis paride Pac Bir hy sagan “Ky 2 * a5 4
aidiet wits a Pay Se as ¢
4) 8 cee Ui what. fire
Bhatt Wak 'f Se ‘ - .
ase wt Pe ORE: ET, wales tu AK 8? Ast pera wrvernge 4
Yee; Detar ih Pex te US jeae a NT ho Peesnt bane RS hay Cutny
Ver ay Wis Fate eet bane bes va ak PARR | eerkieaew Ped Tea
= i eat ahiowe Sie weaken. A

MG net *y

cP OCMAS 1% the Fecetene
Peck {persist Seber? oer geet
aie wt 3 ataat hehe iis

bcd

dpe eebarederes caret ee eeeteyt

oe

garni ere
ot. yrivhtee?. 28 ne
kihibe. “Pern

5 etree A Tinea: i i
px 32 anes? ae pte: fate ta aoe:
; et Get ‘ESS: at

bcp nig 4 Roh Oh

% eh tex! 5 andl ata? - Anse
ie PII nah at * oie
hea 2 Sots

3
sin Ft RANK. ou CANS GIF R mene
tatik Thipe gn greed ri Neer 136° ‘tires’ ek
$ bari Preirsy obe bn te ret : ek Pw etree, Papee gta be
Ris BEE he Aled BR situa ot Meaelabelneae hace,
peprd wey od wachstraed eat Rateete,
Some: tts’) beng Levitin Sica ao ne

Ls ane

: Pet ee aricted
ed fee bon


Te ay God forgive axe toe wha t hd LESAGE SAUTE EY Rito Pai yateata ce Ra tae pe tl | “

done.” be ‘eridd oot: ae. the) MK TER Nitng fo hit wife THe she has woe ket ier Guntersville, Ale nud peal _pckedbting ae ced i rations 3 the emrapieys J od ry |

2 owas Qraw nh over his heats ar fe Ce Me: Oply teaver in thts } “Hare wiped givernce net 19 pik Na: ie te ghd ee odie aeyaited tueation,. f oe.

4g. Awan | thot. wha. wiinemied thes thing ix haying to leave her: God tiene t Ben's thigk you gufitr. Baty bade big wi tet ay Wink Mee noe
i) execution werd James Kithiew, at Mons t Rew, Reeth alhs gake may Deeley ote! fod dost Know bts,” aid thaunfan, é 1 ag, at tha

roe, Ga, a Prothar vt The polk einar tisr 54s Chiles aah wil foe Bik ey pares, Fo Preparations for March. °2) = WOULD LY ACH M AN: be ob." WGP tiesaes

enced | E Fou appeat to be eens Palen lend Sah pO the pirpkne’ of Hoven Aint, a *s Campi

whose kiteg Dupesn eae sent
t death, and Meners. Joho Res ince sheried.~ eat (be tiNertee © eS Ag the shee pte: bt the coun Spenarg tistad
aod William H. Jones, pons Pee wt ti Calas tevited Dencah whe taler! Laratinas for she mart te the gallows *)
the “deat _aeicrenne: Ras pamnile. Tha. paper tase iat. deat wieig t tegen Tepe She Condon haindiel 7
heehee YS iyehat Fear w BUin erste EE dstei"t figaeas & paiat, and, tie, - Dinocan: ee

es eT Lt ELOBING HOURS OF SN pmo Ue be pemaible 7 piay the a tie fan the chiar wad thie Ce * &
ght RU RUNCAN'S LIFE (Retvnuy Ot Poets. he dal ciedigethn ty the, Seago tS 4 Pe
’ fienh “dane + frig fast pheht The tinction wt the gultowa, [Ts wala Spreteann. pict ae ‘ame og nut wean teat
eo earth gatetiy: th the warty: part of be Rrracer At aman, SB Bet Retr as few Abe palena. Ma. wore. gd Fart, sat
the Bicht he tai a retth visiting tee s-. heme what” gate 4 Fae setae ihe soit af Mot hing. wae thee etn Thi: ib

ee. wen and exchanged & Sex words Be poked esti Fy wane ai Prat WhTR was given Diem a
is a the Tearh watch, ‘which coos rie > -Jrhankful te Or... Stage . :

Sot Depaty  Rherifts S.J. Brow! WHT, Ahm teady to ie.” sath. percha, “$ HeCgray. wit Cae Me. wore, . et Fae
Jenne Kate, Sly de FER Oe ip? Hi om Overy thankigh te Ps Breage. Gc.) back halo ; Ei et
a5 He setived wSS0tt 41:33. ‘and “pier tose.'@ amettaie Maa

"Bart Si arb pik OMe: Ean do :

© wonal adebner, pies 4.5 e'dork o nf 0% pnares |

Prared and falheg it

wan evn’ Ben x
ee Core hans

bien Ahoy dos ea Cae oe op ae i what,
yer ad f we Done bebe pelea cee 3 sp oeprery Scupteres)
mpyenrs. ‘ Seat eta FOR PAE ME MCA CONGRES

RS oe Fit Eg
ed eee

at the. porgeh ator
sean a brs 36
: Soya

panes “gla tee oY
och tives

that gan. ea Bee
{wie peek iet, he ew
ed

x Sher acskornre: himimy }: JEue cingrete tn. Pavace will aces
tert, a0A_alies wiryesing Che pea of | questions of brxtens. larpels: gpd mai > ee
pee ft 8 OMOU A, hetoe iam dow bert J tere Declainten. tor QuaraAuine, 20°24

A

ABENSATIONAL Bron Poop Sains
OF. 8 RUT AL iasine ae ane :

Th ate one es e
fe senevns indi Ret Riek, Gott he
Ledeen, BAM ALT.

Saga wdilietrepyed ton8
pial -aeat: ab esate
aM ee ah ca

har Par *
“eet Soi 3
¢atk eeu: Meher pars ids * Spe
ee Amat he
About His Recent dacsek
Teste ati abet the repeat
the Fase :

cia ‘upeer Sana ;
deat ae tea Le BF

rs ca ,

puisslesigp i= Rain ton) ne and ‘Sat. ‘eS nut
oer arday; warmer ta night et to freah


r|MILLER’ DROPS:

"
i} SP Ris
eS |

a oie t

INTO. ETERNITY

te eee yey eet 7

(CONTINVED FROM Pick ONE):

When the men came out of Simon’
enloun they started toward Twenticth
atreet, and had gone aboot half the dis.
tance when they were approached by
the: offieera:-- Upen- being haited-—and
questioned {the men stated that they
were railroad men, and they told such

4 | tempted: to tet them go, but-they de-

}
j

MSGR
RATAN
sabre a

iter first tasertios

: cows; gy Wagon.
enges, lmplementa; oathouss:
frulte: frente: public road:
tmprovements and personals

bey: asked. Kborn @&Jonen

(Nicely: fornished rooma 2114
k Kea juve 24 tf

rosea. eulfable for light
Ply SIS 2ist mt. North,

“vepillated reoma “to

; ree Mudel

LY Apply tu: Mode
Inte 100x140, block of
Cwaik of  Dusley; near
mn & Joves — ,

lurge, aicety furnished room.
nd); Addrees B.. care Nowa

Fair

POR RENT.

oa,
Broom <ortage, 0S Jeficreon
_Batings: Ha ox.

3 : an, SOB St,
corner 50 feet of car tine: |

stade trees; beaytifn} jotey good

peas bergain. Kbdorn & Jonea,4:
3 t.

Citecdy os

Meo parlors; ename

biting le. Apply Mire. Woo
be tu

baie track if
intiv-on rar tine: Martin

of BMasley _ Rborn & Jon

WR KENT Nice. Btoom eortage. h4dth at.
brid Ave’ # tprly J. OF.

Sy and harhem;
OD. ‘i

for $i
_ 2iet at
a4 Ok BONDING Pinos,
(4mplete bonse ville specialty. Cali at
ft O8yc@ _ eetinns tee, Lathrop Leaober
eae C, Feiluwe, Mausger, Wis let ave.
“ .

* per foot: Summ, near Ware's Grove,
burns de donne ses are's Grove,

© Hpen Jong borers ‘and hand:

| ietorte "hune 3155 or -addrese
tare Newa oe fei Sot

pe asd presser waated, ipcy

rif 4 one et. mae
4t>-LO acten in 7 bierks of postuffi.

ud bauk at Ensley fay f Soncdh *

mh ALB -Howse and ict: ath ave, be

tweem Zist and sid sis) 2 ier Bi)

Kate, M, betwcen thik 9nd Bis ble
es aS 4 Going, Kodea bulldivg. ;

cadirtininiace bak are

tb thin,

i}

Sate cepa tae nen

LOANS

Night Captaia’ question

rer

Nie¥ Fo LBNL os improved cliy eau
+4 acta ‘ .

a plausible story that:the o ) were

cided to take them down’ to he station
house, only a block Aistant, and let the
them, With
this end-te- -riew they -otarted toward
Twentieth street, Officer Kirkley in
front owithone prigoner and Officer
Adams in the rear hb the other. At
Twentieth street they started to crose
the avenne and Officer Kirkiey and bis
prisoner hed almost reached the oppo-
site sidewalk when suddenly the man
mith Officer Adams wv out @ re-.
valver and fired point biank at’ that
officers: Adame fell ta the ground mor:
tally wounded; ‘but plinckily arneé to
his feet-and’ opened fire upon hiv as

sallant. K
PRISONERS ESCAPE,

With the sound of the shot {n'thetr | #22

rear, the officer and prisoner In front
each whirled and drew their revolvers,
and from that time nntil every weapon
had heen emptied the street rang with
the reports of the rapidly exploding
weapons and during the battle Officer
Kirkley’ received: a mortal wound
while; both prisoners made. thetr
eecape- : ;
“The man. who was with Officer
Adams -and who started the ahooting

rem ether

YW. ATAMBS TO ;
ftuvmier Frank Miller pala the
penalty tolay.

For whose

ee roan ine.

ran up Third Avenue. while’ the one
who was with Otcer Kirkley rin
down the ayenne,” firing over his
shatider as he sped from the scene.

The man who ran up Third avenue
wore a light orercoat and be
in bia flight as he neared ¢
street and removed this coat, laying it
carefully down npon the sidewnlk: He
then continued his Might At the cor
ner he was asked by « man “what's
going on down there?’ but be did not
stop, simply crying ovt, “Oh’ hel) is
to pay,” and and fusbed on up the
avenue, A bottle of. uitrogiycerine
Was found tn the pocket of the over-
coat, Which accounted for the care in
laying it down... oe

» GREAT EXCITHMENT.

The shooting of the two officers and
the cecape of the safe blowern created
the wreatest excitement tn. the city
ahd soon every offer in Birmingham
Was €N the lookout for meinbéers of the
gong. Before morning Detectives Hode-
kee and Disheroon, w bo “ee waa en
lipeti the case yery prom ;. ay
fe tape a Es AA Bad hata heeney
six®,” and he gave the whole gang

jgated and while one member of the

i.
iP

;

is
re

SEE Sly - APE

Acid Phosphate
atrengthens and lepers new life and vigor when you .

feel all played out, can’t sicep and have no
VHE CEMUINE BEARG THE NAME “HORSFORD'S” Of LABRL..

R:

FOR TIRED BRAIN®@AND BODY

*
“i « ‘ ¥ y a “Ge ¥
‘a * ‘ m = he

eae ve He pMCRMM OF
KS) £ a Fs ‘ j

nk:

et
ay
*

appetite.

swat

Place about five weeks after their ap-

The result was that. both were con:
Victed- and. Miller was sentenced to
bang, while Duncan was given Ufe Im-
Prisunment Miller stated on the stand
that Duncan was not apd that
be bad no part in the shooting and
the Jury gave him the benetit of the
Gount. Both defendants took an appeal
to’ the Supreme
wan suspended pending the result of
thie appeal, The cane was held up for
about a year and in the meantime a
desperate and aimost: successful plot
to" escape “jail was planned by) the

«.

SAWED THEIR WAY OUT,

By some means the ten got hold of
a small three-cornered file and a cor-,

prehension and lneted sxbout a werk.)

Court and ‘sentence | TRUN onic” ite sat that bee

eet rib and by means af’ the file the
rid’ was converted tuto a hack-saW. At)
this time-they-bad the liberty of the |
janer corridors during the day and
thus they had an opportunity to reach
the barred windows whith opened out
upon the Jail yard. One of these win-
dows was lerei with a little galiery
which stands out from the double tier
of cells in the rear of the jail and they
selected this window through which
to escape. ‘This was in apart of the
jall where the prisoners never congre-

weng would saw away: at the huge
Stee) bare the . others® would wateb.
When any one not Ja the plot would
come ground warning would be given
and work would cease.
INTO THE JAIL YARD.
Finally one of :the bara was cut
awry, leaving a narrow opening about
ten Inches square, and about 3vw
o'clock “one afternoon isst win-
tet) the daring’ prisoners. climbed
out of this. narrow opening and iet
themweelves. down to the ground by
means of & rope and grappling hook
which had been prepared for the oc-
casion. The rope was made of pieces
of blanket, and the the book) was
made of a piece of an tron cot.” Upon
reaching the jail yard, the escapes bur:
Tied to” the northenstert) corner of
the Jail yard, where a narrow partition
rane from the corner of the jail to the
high brick wall which surrounds the:
jail” -Thia partition ie about seven?
feet lower than the niain wall aud
the prisoners sought drst to get on top
of this and then throw the grappling
hook over to the higher wa)l and thus
climb upon it. then they were going to
slide down to freedom. es
PLOT DISCOVERED, 4
When. the fact that the prisoners
were attempting their escape became
known Miller and Duneio and: Weat
had already reached the top of the
lower wall and in a few moments they
would bave been at liberty. The Gla-
covery was made by a negro: trasty
about the jall, who accidentally bap
pened to cone around to that part of
the yard at thie opportune time, He
hastily gavo the alarm and the jail
wae quickly surrunnded by deputies,
while the warden came around Iuaide,
fun In band, and ordered the men bark
to jail. They reinctantly came down’
and were returned to thefr cella. very
much cresifalien. One of them had a
revolver when they were dlacovered.

‘

Was not known for a iéug the, But
finally Miller Afacioned ft to a. News
reporter — He atated that the revolver

away. *Bheeney Kage stated that the

Ge. ,

" ‘The

liow -this came joie thelepuseasaton i. DISEISiT

me |

nal Jawyer, also represented him when
the case was aulmitted to the Su
Court, When the trial occ

had no woney aud was represented by -—
Put one lawyer, Attorney Joseph BL.

Montgomery, of this city. 5
THE DOWNWARD START.

- Miller, who. has albwags refused ta

give lia roai name, ¢laimed that he-.
Was a eon of a highly respected: Gers :

to America when he war fifteen -yeare- =

of age. At that me he had @ brother —--

in New York who was* a -Catholic

7

T

priest In charge of one of the leading

ehurches, Soon after Frank came ta.
this country this brother died and the
youth was left alone. with Bo efile. to
exert a restraining influence upoe Bim, -
Instead of returning home, he remain-
ed tn America and séon drifted: into
bad company. (Gradually he began
the career of a crind and at the
time of his death was known

out the tinited States as a crook,
ing woo distmetion in criminal
as a safe-blower.

ed {n-1892 tn

kuown to detectives and-officers tn all
the principal cities of the country,
sNOT ALL BAD.

Career of Miller
bad, however. He exhibited brave
and manly traits of character at times,
two instances of this Kind having ¢ome
to light since his apprehension. At the
time of the great. Boweo-Meerill Are in
Indianapolis several years ago, when
scores of firemen were buried beneath

the debris of a huge building and «:

USL were killed and wounded, Millee.
wae laid up in one of the India
hompitals. Many of the . woanded”
were taken to thin hospital and so
urgent were the needs ofthe

that Miller got up and assisted tr
Hiraing. the. injured
own sickness and for
About auiwnug the injured wap
their wants with the gentlevem. 2
thoughtfulness of a woman. A Cap-
tain of one of the Indianapolie five de

partments gives Miller credit for save.) #

tag hia life daring this period.

and many kindly expreastoas of aym-

bans _

was not ai © ;

"He forgot hie |:
weeks went *

be
ah

al
ett

K,
e PS.

Miller's career in (indienspolis ap ¥ y
peara to have been without blemish * |

pathy, 28 well se substantial aid, came ~

to him from the people of that city.
im another oreasion tn a western |
town Miller simtutoed an Injury. im

stopping a runaway horse which be.

carries to bis grave. A woman and a
child occupied the buggy bebind> the

maddened snimal and but for the act =. >
of Miller they would have prodably,*”’

been killed. He caught the horse, hig
leg being broken tm the datng ef 1%

Pap Ae went with a Hmp, the resukt
of @i perience,

- 11S: PROPLE.” ti
Miller leaves an old father,‘ vow im.

be

ls elghty-third yearngwo brothere and ©

a algter in Germany, Hite love and

reverence for hie father and his Gere-

ton fo: hig elster was ine and

tester. He seemed te foal she

ly for them than heqfelt fer

nnd, in withholding ble real name from

the patlic he aatd that he would rather

ie a dosen times ovep thas to bring:
ibMe disgrace down upon the grey >
ead of his aged father. 1

Duncan js the

He id under sentence o

and wheo he walked to the gallows...

a
ne

4

x

Mare Leer ay

GANG
member of the f° >.
RARg arrested who has hot heen finally ~
Uap wed of.


row of pelicemes. practical tie)
whole city police force teal x\ tires mt.
\

Ae be sted Up Tue ga os Mier)

You “ark ‘ 4 sy
shel at Ht Gurjoosi¥. ekn haeniog. Chet
hope andthe bes ti nihow ek too which it) Heacork who found him iafek at the) for [7h Pape aud he has

at P45 O'Clock be was see wBhortty as fn thie inwtanee For

\ : Kustnhe amd sap to atormnach and tn a Highly n@rvour “tate some of bis best friends dow: Yh Bae : #0
packed wlth’ bance faces ceind (hen shial Wis mM pee NORTE coats rs haar con dted ecu ag tiie namber of paxre aN enk patently for afi ee fp but 56 ‘a
4 APT Births fal [rtoop a PU cet S heat} Wor winten e 1 “\30 bi : “ty b "ay!

eyes mayor baer eal ahs ba ave eee con} Shortly roe i) clogh Father ¢ PALAIS canaliiod aad ne tonic meartet pot.tointerfers Miller sald this 4

petty ta gk PIES T WORDS, Reilly and Patber Meufer came into to be refured as there was po way nee seat: : rae Lae hee wood ae av
Father Muerer read (row # prayer! ebiadl piel pr rey A Ray ihe Gh Lia Bi whieh they. could be accoinmodated, (lone f i pace seh Pi ecediees jth

Sisk whisk NRREAPE DOD CRE Latitate pee time ad ls lent ly” ’ However, the fact that they could not | 37 mt for iA
A iwheu the reading. was coucludot: 1... 1e Veath warrant wage cad to Mil see the exeention did not prevent a] a REIL ith

and when th rs ler Just as the priests @ime tn He tremendous crowd from. gathering | THE CRIME hey

ther was a pause. Miller then raise! jaiy gown upon bis’ cof dering. the abeut the court house and Jail. Soon} On thenight of March 27, lim, the: or,

k atuer Mamass, (wo were trata, to ie fall leoeth, : for thla purpose, bot Miller refused to | e P
be gas we ae j- The php sivians: -prononoce) Mert be troubled Uy the barber. He said! ‘° reas : b
WaibnnD WETH ELEM STEED {dead im. juat > foortes au omtiutes His that bis beard and batr bad been al. | had been informed thus, while they

As he weikel (othe gacowe Molen | tek was broke lowed 10 grow thus far and be did not}
went with a: Dw dread amt be luacd Affer Miller bad teen prontunesté mind going to his death looking as be
‘eouay ipod tbe cuneus tages woot! Seal be Was cut down aid was taken) did. Hie wishes tn the matrer were}

hin, He mudated the siepa easily ain) 1h charge by Ganidin & Loy and car peepected, it making no difference to) ietrranied ots ah .
turnetwed (be gaiiows aod’ laced | Ted to their underiaking eetaldied: | the olicials Bow be looked, ‘ ‘ptt oh sega *L A hoe ahee of thia
os re TOW DA before whine) Hia-march tof ERE. OF. Twenty Orit street. Bet it patibiy TREWENDOUS CROWD. it aabratlyii, MA whe stale Wrus pr
ine gedows- wae ib frynt of-& duutne; OO AIS BAST MOTH Bee sot singe the. execution of Dick Kuex . Rowie & -Bincksnon Sof i,Annte

Miller attired himeeif in °th@ black Tlawes in IS@)° has pobiie interest to
fault whieh was to te fila funeral ote the death of @ ¢riminal boen so keen We
. fife

before this tine by Coonty Physician days Sherif? Burgin bas been tesel ze
had to (Ort | pestherwood, “they presented fifteen | 3"

oc Eee ees ~ —r

icould not actually ace those on the
loutaide were kept fully posted anid
/ were made to fel that they were a
| part of the antience.

om, mane the last effort 19 save the
of Miller -yeeterday aftetooun when
days aud tinny presented bia cas to the Gover
ipo at Mootcomery. Aceonting to Mr. !

nh;
th
hi

y ‘ \

ihe Pilenap ye paces would dike: ti Jv deena! at etd ae Prete after daylight this morning the crowa! uffice of the Standard Oi) Company,

ask me any questions? lhe asked not 10 hear warrant. aay-;
Home one cfhled wut from the crowd: ing thar he di not ca nything about/

' Who saved Clayton's tif i Lit. but he was told that it wonid have
> “Ee did,) wag thesirm reply to be read to 'D Cons} dels telnet ltematete tne nan bie a ‘
Noliciter Hy} Pe Hetlig si ketoup the “sented Mgrs F viata et f ‘ 5 la RAs ans set atari k
; steps of the gallows LruC he stood iu ATTORNEY B 1E CALLED

called on Miller,

a. few: feet of) Miller and asked bina! Among those w
forth to the xal-|

once again about the killitig of Officers: before he was ta

wed \
Li \ Adains and; Rirkicy. plows was Hon. Sid. Bowle. of Knox,
|. # My statement about It wae true”) Bowle & Blackm@p, of Anniston, who |
\ pata Miller, jebvok hands wit} him and told bim:
3 “Was Dancan there?’ asked Mr. jcoulgyo Mr. fe told hint that he
: Heftin, | ; belied him to De innocent?”

“fie was not.” waid. Miller “New} Attorney Laatberwood, who has!
) York Harry was the man who was! looked after the Birmingham etd: of’

{th me. Donean was net” the case for Mille, also ¢alled on hin. |

( Attorney Jobn T. Shuenrt asked the {> M. Bowle ed Miller two questions |
C° SS -eondemned man, this queetion also, and ~ behalf of Q, one of these was:
5 ~ Miller replied with frmnesk) "Duncan } “Was Dun present when the shoot-
\was not there.” | lug occu vy - j

As Solicitor Heflin etarted to leave “No,” wag the reply of Miller.

the steps, Miller spoke to hifu, saying: | “Did D assayit or shoot Nicht.

“You are banging an innocent man.” {Watchman Clayton,” was next asked. |
Miller was asked If he kuew whoj “To theybest of my kuowledze, be
shot Night Watchman Clayton land be; did .not.”’ Grae the reply. }

Pk enid that he did not know. HIB PWO PRAYER BOOKS.
: Solicitor Heflin then walked hack to Miller two prayer books In his
“the ground and, Miller. exciaimed:/| cell, and theese he asked to have sent

“Thies Is awful!” ee to a lady nm New York: who bas shown
PRAYDR OFFERED. him. mapy favora.’ This lady, Miss
Prayer was offered by Father! Butler, fe the one who Interested: the
Muerer and Niller ato with bowed | (jerman’ Ambassador in his case and
heed. uotil this was concluded, then’ who sent him considerable money with |
he called Solicitor Hetia a. second | which fisht his cake. | He felt great //
time, seying too bim: | gratitude.toward this jady, and always]
“Yon. see my condition, that’ Tt am: spoke her in tesals of warmest ap-/
cool and know what 1 am ‘talking | preciation. . , {
AIS i about. I want you to eee this eo that) Millep bad'a silver rabbit's foot. and
vy + you will know that I know what lam | this Qe presented to bis guard. Mr.
: paying whep I say that Tmncan Was | Tho B. for) whow..be seemed to

not there Duncan’ le innocent and creek very kind feeling. i
you ebould have mercy on him and! The prisoner, also felt very kindly

? bot bang hinn.3) disposed toward the jallor, Mr. Bert

a ott * ' y,

eo The condenmed man then asked for | and expressed bie gratitude to him for
‘) > a drink of wafer and this was brooght | -onsigerate treatment:

LE bea ar A si raps ‘ehh a coat What disporition will be made of the
f si cup 26: bie' di wnite tot pind body of the dead man has not yet Deen
wuiher O'Retiin res iitrom the hoo} (termined, Father Meurer ia dn
which he held red his band’ and Miner | °>2rse of the remains. Miller has no
‘Hietened with coolness until i's > con- people Many ep ees ae
te gusion, when be asked for. Sheriff eGR ape Ny Met
Ps Mi Borgia. : “Sate! vbaades pid plain “B80 adebS
i \g ‘ ouse durin e “ec ” 3 re
Whea. Sheriff: Rurgin’ mourted: the thing remarkable. as was the number

gallows Miller shook bandas swith him who thronged the windows of the court

a e nie “he house.’ Every window In the big
ADAMS’ BROTHER. H ¢
At this point a brother of Officer bniiging from which a view of the
Aalt yard could be obtained was flied ¥

Adams walked up the steps and shook
~ Lwith expectant faces, and eren the
bande with Miller. Miller sald to him: tower of the court bouse whe foll of

“1 hope now that you do not think T) nt. who peered ont through the

killed your brother.” 4
condemned man axked narrow openings. Among the sperts- t.
ane RESTS ION tora In the windows of the court were

water at this t and apother cup) | imberof women, some of thets be~

oa we LGonaty ' Payacien Heacock next} '"f relatives of the dead officers.

gounted the gallows and told. Miller

‘ Then followed’ turther recitations} Miller’s last night on earth was any-

~

er in me

r.

Ba
an)

VE gfe

77 A ht bdgikd

ey
oo Mh sod

|

ss Be ad ‘ , : gies ie
BNR OF THE HANGING OF WRad +
Sr rcas ation t |
+ Si . uae J

hah cts -
atk i ty ;


AW 6, ). 4 2 @ 3
we §

ee

AM, ALA, EREDA YO APTERNOON UNE’ 28, 190L

Sage,

theese
4 syd’ Vite
vad ats
we: weet ¢

eg dee. SN
etomach @ 2
Near We th poe des:

t
'

he ce, Mn Me } A. 4 vy Ae ‘
AE TIGUS a ten "7:6 | WN Oo ‘
tA ALN Bee Mid AC yy Wh
“2 PARI ail Ai! yp.

eae FRANW MILLER, +
Ethe uoetorione Mfe rebbpr etd Murderer, who was Langed In the Jefferson Coun-

ie ao i ty jah yard (tar.
ae : 4

Bono F-00000 4 004 SFOCSSOOHSE FOOL OFEOEESLDE LPL OLD OD OL LOS
; ——————

begun gathering amt with each pasa | jocated in the southwestern limite of
ing hour the throug increased greatly tite city) Was entered by a “ang of
{howz Il becae knowb thar the | crooks and te sate was blown open
gallows could. be seen from a few of | with pitro glycerine, apd soructhing
Withee windows oy the court: house aud | over Sa in Boney Was taken out by}
eA mon every avalla bee inch of: room was | the robbers. “ff ‘i

thig taken Up at tbeagamindows. Hefore blowing’ the safe Uggens
AY Welly; ALLEY KEP CLEAR. assaulted Night :Watebman J. Ap Clay:

irene: the
kfast and

The alley betweelt the-jall and court] ton beating him over the bead with |
heute wan kept clear of the crowd, a) (heir revolvers and fring several shots |
titel le number of deputies being stationed at} at bim. ‘ne of these shots took effect
hid mentee end for this purpose, Durtog the} in bie left foot and some montba later
tans com erecutivu bupdreds stoud abeut on the | iis member had to be amputated,
the tine un. wide walks and out in the eatrectsa, Un- LEFT FOR DEAD.
(HEARERS ne thing of the geim cere | arrer assaulting Mr. Clayton the
Ve ol teony inside” However, those —WbO rr ners threw him: into a smiull ejoset
2 a Aaa could see Kept. those who: ceall put conheeted with the ofice and jeft hin

es RA SOT wee well posted. Every utove made iD}, guad. be having) become © uncon-
. sy a the jail vert ees te Kome Pts kCloua by reasop-of the lows apou

myrer and was d from mouth | pig head. However, he recovered suf.
ret Ate ; bs

fe said to mouth until the whole multitude fictentty tna short time to tell what
b boon ai. nad bern informed thus, while they 14° occurred, and by midnight: the
ihe did 7 {could nit atually eee, those on the Police ‘Department had been’ notified
tte. ae bel oolmide “were kept fully posted aud] oa every officer in Birmingham was
tet were | sant of the Pippa they were A) oy the Wokout for suspicious charac

Terence to LAST EFFORT MADY. tera :
’ Attorney It. 1a. Leatherwood of thia Atnong the officers who were warned
wo to lovk out for suspicious characters

city and Hon. 8i4 Kowle of the firm of ,
of Dick} Maat gi were Officers J, W. Adame and G. W.
hrereet. in) eRe: Howie & Blackmon, of Annis- Kirkley. They went on duty at mid:

peed: wate shar lause eur) Wawa ye the night and received information about

ti ms Keen?
t \ " + ft b Tt 4 a
Gaye end i life of Miller yesterday afternoon when the robbery when they began their

they presented Lis case to the Gover-
Jae taht wuF SP itodtaemibty ck heneding to Mert ORNL A work: HODn A TlOr Waving the
1 fo-lore { Leather word they -prewetited fifteen gtation house the officers noticed two
rwrsy Thet maatite and two few withe 1 Puapictots looking characters walking
two hone: a0 wo new witnesses, al] : : hots
j ‘ r ; along Nineteenth street tu the neigh
on panetg | new eVidence The Goverbor heard horhou! of Serond avenne, ‘The men
i thy for titer Lours. th . eae tg 2
When! patiently for. tite mute Vue. de probatly noticing that they were fol-

TetB Met ied not toltntert Mili ttl
; « Mi
omera had ok no © tplerteré ier mye 18 lowed waitked to tt corner of Third
Avenue aod Ninet ih xireet, where

jn | Moruing that Mr -bheatherwood bad
i they enterd Simon's ration and took

ted (dotie hin beat to save bins and he wan
Fry? very ere
ae 2 Ut {Ur SPE a herbi tate fa deink then made their exit through

. THE CRIME. ‘urenue perhats hoping thereby to
Jali Boon oh Le onlet foot Mate 2701 thee ode the offoersa
the ctowd/ affine of the Standaod OU Cotpany wie

. : ‘ : (CONTINUED: ON PAGR @)

Lge poe mB 2

FMB ie RE as “thy z Rn y Z é Shion de

s ;
YM gs alge hie a Aare Fat Wer aa ae |

COUNT!

eS Se

YHEN TRAP WAS. SPR

Was Not Afraid to Die

died in eleven minutes, ... ;

ithe rear door which onens on rhira!

Alonzo Williams in Re-{

ligious Frenzy —

and Asked All ta.
Mcet Him in _
Heaven.

Alonzo Williams, twice murderer,

caliad upon the Sheriff and exp
ed against such treatment, He :
very touch surpelsed when Ns
that the sounds were all mde By
Willleame as he seid bis prayer: sy

¥

HOT KELIGIOUS DI eet. f
Led to (reat Disorder tn the C

Madrid, June 28.--The diset a
religious confiicts led to a thou!
the Chamber of Depaties aad
ting had to be adjouned.- "=
Senor Bilvela led the debate o&
Kovernment* for not preventing taem
conflicts, but his  remart&:. 9
drowned In @ storm of Rept
bisseea and protests, mn Ft
The Minister of the Interiog,*
Moret, promised to proteet Cag ;
Lgious demonstrations so-loag:-@n
were not of a political charachi®,jfon
a en ;

EMPEROR ~ WILLIAMM«—;

With Honor Cooferred by i
Dr. Von Hollebes.* ‘

was banged at 11:5 o'clock today ip
the” Jefferson: county Jatt: yerd: ~ He

Willams died in « religious frenzy,
He went to the gallows clapping his
hands, laughing and praising God and

5
ON MES CF, tHE ED FOR IMO MURDERS
oe N Ai | |

him jin glory. :
The prisoner was taken from bis cell

lows by: Deputy Thompson, followed
by: Sheriff Burgin und a oumber of
colored niinisters. ’

death, be cried: out;

By SONG WAS _BUNO.

man juiuing in.

That is Fairer Than Day.” :

cried oup repeatedly, . “?"
praise God,”
BLACK CAP ADJUBas.,

be beard repeating the words:
“Praise God.”

hands as though lo prayer,

previvua,

Rerlin, Jyme 28.—Today’s |
print long special

Washington, - and ies!
paid him. The remerks: of “Pim

calliig upon thoee about him to meet! The V

at 11:45 o'clock and carried to the £al-| | ints appreciative com

the . solemn - kt ;
stances. © Official . circies,'s:d

Wiliam,. are alag*-
As Willams reached the gatlows andy; c :

on

of Deputies.

>

= coal
eed

nants

sivood upon the trap door, through

which he was soon to plunge to nis}- A CORPORATION 18 FOR

o*L am well satisfied. Meet me In
pny ‘ 5 ttad’ :

N. ¥., June
One of the two colored ministers who ss bag
accompanied bins upon the gailows muji Company of New York
then repeated the 123d Psalm, after been Locorpormind, .
which a song was bung, tbe condemned

At. the conclusion of the song, &
prayer was. offered, and then. all
joined in- singing “There 1a @ Land

Willams was then given an oppor
tunity to speak and he addressed the
crowd {n/a rambling fashion, many of
his words telig Mandabdic: ~ He samt;
Among other things.-tzat be was, ready
to xo and agaif: and ayain be urged
those present to meet bins io buarea.

The rope was , Ap@ang : his
peck ané-arhile: thitr-rast ‘tring-—deas
he laughed and clapped bie Beagle and

«rou,

“The black cap was then adjusted
and eveu after his face hail been en-
sbrouded in its somber folia he could

At 1150. o'clock: Sherif Burgin
apruny the trap and Wiliams fell to
his death. Aa be fell he clapped bis

Ip eleven minute@ the. eiclans
| prupounced bim dead® and he was
taken downs ahd bin body waa carried
to the Gaadin & Loy undertaking ee
iabliatinent, Where the body of AMiitler
had been cared only a wbort Ume

Will) Constitute Fatut
“‘Hitical Parties Says! .
Wayne McVeagh.ia
Boston. June &&—The :

“Ideals tn Pobtica,” which Wa
Veagh delivered before the

The execution of Willams followed
an bour after that of Frank Miller,
but did not attract balf oo Much at-
tention. as the desire of Uhowe boibk out

and tele the jail yard fur excitement Kappa at its anuaal meeting af

#

with a capital

mandfacture sugar aad other pe
in the ieland of Cuba and
and to é@e al) matters Incidentas;
business of that character. Tia
tal'in. divided into $1,000,000 ,
and $1.000,0000 common :
directors; are Alien Wardall,..W
T. Dennison and Wiltiem SB Balets
R, Green, of 'E ,
‘ WANT TO DIVIDE *
attanooga, ‘Jue 3
patch’ to. the: Nowe. frase . bees
Chicerg Gort, bere be the Battal
*hancery : s ‘petra
olneon, ¢ i, seat ing
wind up: and. partition: {dq Game
which Is the largest iq Beane’: Comee
The lands belonging, to the estaae =
slat of 6.000 acres,’ Including tia
mous Half Moon Island ead saeeR;
river bottom land, ° % om

ae, , en

e

i +

xa

Bactis

rage 11 '

ae « Oi)

ree Stold by) sone ob-
"HT quent ted frum mouth
s bee spvuth
Str ead pad teen
‘ town al i could nowt 4
» ae A Ot outside were kept foley posted and
om nag a0 Ci were made to fe) that they were a
ster Bere) nart of the audience.
4 ference to! = LABT EFFORT MADF,
$ iy

attorney V5. Leatherwood \of this
owD.

li and Hon. 8! Howle of the firm of
Diek nore Bowie & Llackmon. of Annis
1D fon, nade the Inst effort to save the
KeeD i tite of Miller yesterday aftertinn when
they. presented bis case to the (Gorer-
‘at Montgomery. . A\ceorcing to Mr.
Leatherwood they presented ffreen
affdartts and two new witnesses. all
on swe hin: new. jevidence The Governor. heard
oe Ot aren | them patiently for three hours. but de
4 hag che: not to interfere Miller said this
Py <eoryickr wae in pOOFuINE that Mr, Leatherwood had
D lated dane his best to sate bim and he was
oy conld Dot thanktnt: for the service rendered:
THE CRIME.

ft prevent ance
i. ey Oneihe
‘office of the

Stundard Oll Company,

ight of Marchi 27, View the’

scious by reasen of the biows \upoa
tis head.” Howexer, he recovered suf.

Police Department had been notified
and every officer in Birmingham was
on the jookout for suspicions charac
tela. .

Among the officers who were waried
to took out for snepicions characters
were Officers J. W. Adama and (). W.
Kirkley. They went on duty at mid:
night and received information about
the robbery when thes began. their
night's work
Ktation house the officers noticed two
sispicious looking characters walking
niong Nineteenth street ju the neigh:
borhned of Second avenue . The men,
probably noticing that they were fol-
lowed) walked to the corer of Third
avenue and Nineteenth surect, where
jtbey enterd Simon's saloon and took

t

La drink, then made thelr exit ' Be Sa :
i “iu A thromen taken down and bis body was carriéd

j the rear door, WDich apens on’ Third
avenue, perhaps hoping thereby to
elude the officers

NK MIL
Saat ioe

oo
*

Ae

of Fraot Tnncen, and
te bemeath the
rhe

hich not ta
loft, ready % :

ies

ay

Soon after leaving the!

(5.mam

Wiliains was then given ag
tunlty to speak and he
crowd if a rambling fashion,
his wonls béelng Inaudanie >
among other thingy, that be was
to go and agaih and agala’ he.

The rope was passed,
| peck and—owhile tht wet

praise God.” ;
BLACK CAP ADJV#iw—.

The black cap waa then adjusted
and even after his face had been en
snronded lois somber folds he could
be heard repeating. the words:

“Praise God."

At 1159 o'clock Sheriff Burgin
aprung the trap and Willams fell to
his death. As be fell. he clapped bis
hands as thougd in prayer, :

In eleven miautes the physicians
pronounced him deed and he was

4

to ihe Gaudin & Loy uodertaking «a
taldishiment, where the body of Miller
had been carried only & short time
previous. :

The execution of Willams followed
an bour after that of Frank Miller,
bat did not attract half so much at-
tention; as the desire of those both out
and inside the jail yard for excitement
of this kind had teen satisfied to large
extent in the hanging of Miller.

The absolute indifference with which
the negro met bis fate was a matrer
of ‘comment ou every side. Few were
able to comprehen! ‘how be had so
baiided “himself up 1a) his’ religion
that he had no feare of. the future,
He was calm though flighty and talk-
ed with little or no connectedness both
in’ bis address to th spectators abd
the officers around him.

“Williams was neatly dressed and
presented a tidy appesrance when led
out by the officers, He showed con-
siderable Mmterest’ tn bis appearance
and seemed pleased with the attention
given to his attire By the Sheriff,—

KILLED. TWO?" :

Alonzo Williams ‘was: dropped’ into
eternity “with tne blood of two of his
fellow men upon his head. He. killed
two negroes, e€tt under the same cir-;
camstances [le was hapged for. kill-!
ing Hob + Callaban, whom he killed:
while serving a life sentence for kill;
jog another nexro
/) Williams was origtoaliy confined fn!
Pratt Mines for a non-cupital felony.
While serving his tern> there he be-
eame epragéd at a fellow convict and
plunged a plok through his heed, kill-
ing bim almost instantly: He claimed
tbat the deed was doneiin self-defense |
but upon bie trial he was comvicted |
and sentenced to the penitentiary for)
life. f

After bis return to Pratt Mines it
was not long before he bad a row with
another fellow. convict and this row
eulniinated as did the other. Williams!
drove a pick throngh the other negro's}
bead, producing instant death.

AN UNUSUAL CASE. |

‘

When he was tried the second time)

‘for munier the case attracted consld- |
erntile attention by reason of the fact!
that the prisoner was sat that time.
serving a life sentence for murder and
could not be punished except by death.
A sentence of life tuprisoniment would
net hayé been avy puniahnient as he
‘was already suffering this, so the case
resulted fo the death penalty befng. tm-
posed. An appeal was teken to the
Kupreme Court, but thie wae in

al atid as soon as he knew that he wae
going to bang Willams xot religion,
fe prayed coustantly and often hts
prayers arose ty ened s pitch that they
eould be beard all over the neighbor
hood. Many persons buve thought up-
on hearing him. thet some ’ prieondr
was being horribly besten. We had a
way of walling and groaning and
slapping, Rts hands” together . That
wuided very grewsomé at Right and
on ove occeagiag a kindly.

4
those pregent to meet him in’ heaven. |: .

hake
he laughed and clapped bist}. ret
cried ont repeatedly, a oe Chancery’

gem 7

wind sep partition the am
whith Is the largest in Ragne Can
The lands belonging to the eiaar’
niet of 6.000 acres,’ Inelad: we!
méus Half Méen Island end :
river bottem land. *s

CAPITAL AND ®-L
Will Constitnte’ Fe
“jitical Parties Says Mr.

‘Wayne: McVeag

a

ae ncn
¥

Boston, June 243—The
“Ideals in Politics,” which’
Veagh delivered before the
Kappa at'its annnal meeting
bridge has attracted uneesal
Among otber things MeVeagh:

“It seems to me quite too >
dispute that no single metmt
weaker race can. ba,ddilled;
such race, however: humb:
burned, no one can be selecn
pecial honor, for his part in’
ful warfare without ite Bd
light the torch: which starts '@
by which sowe helpless negra: 7, :
be burned at the. stake Ip. OOF) im
country, bot only in” defiance. ;
contempt-of-the taw, and all
must be surely followed by af
security for the surpiys_wealth
the sontentsJ class possesses, © 57 5

“Xow, It is at Mast: quite 9?
that in the not distant future.
can politics may dennaformn Mri -
ster's warning inte; history, forxeem
electorate is already beginning te #4
divided and must, m ce w th
law of social evolution, conUsve Femgy
aud more to be divided by that
cleavage which separates those.
are contented with thelr lot from #
who ‘are discoutentod with their

“Under whatever disguises, c®
by whatever names, inheriting oF
ing whatever partisaa  orgene
the alignmment, of two great
divisions of Americad voters wod Wee
soower. or later aguinat
other for the om of the
ment will Inevitably be upon the

have Dawe.

“The party of the contented
range. under ont banner aint:
party of the discontented wil be
ed under the other and that alae

SELL
a yf

Fe

¥

44.

‘

we
een

miu

{ will’ steadily develop ia

sbarpuess of divistab uoti the
the discontented, being tp the
bas obtalned scoutrad of the
meat, to which code? our nyat ‘
are. entitled, aud .cog they uae
sure to- remodel the ma
for the distrifation ©
we have previousls o> Sie
desig, wiser. an? nery equ.tabia §

that oow existieg. £

‘11 te, ree

yas
wraith

~

tlemaan, who. thought (hat same
# belngy, crv?!

Ed

pas


ms n
> Gi *

PR tage ee iN a om,

CAN, Henry, white, hanged Ozark, Alabaim 2-21-1890,

104

asking it, and if, when so construed, it as-
serts an incorrect legal proposition, being
calculated to mislead the jury,it should be
refused. Ross v. Ross, 20 Ala. 105; Carter
v. Chambers, 79 Ala. 223. The decisions in
Meredith v. State, 60 Ala. 441, Allen v.
State, 52 Ala. 391, and Moore v. State, 18
Ala. 532, are express to the point, where
similar charges were held to have been
properly refused.

here is no error in refusing to charge
the jury, as asked by defendant, that they
“are not required, under the law, to draw
unjust or unreasonable inferences from the
testimony; and if any of the evidence [by
which we understand any of the testimony]
in the case admits of two or more con-
structions, one of which is favorable to the
defendant and oneunfavorable to him, the
jury must put the construction upon it, if
reasonable, that is favorable to defend-
ant.” The first clause of the charge as-
serts a correct proposition, but the latter
clause is not based upon the relative rea-
sonableness of the two constructions.
The testimony in support of the construc-
tion favorableto the accused may be weak,
and yet not so weak as to render the con-
struction unreasonable. It may bestrong-
er in support of the construction unfavor-
able to the accused. Besides, the jurors
are the sole judges of what construction
shall be placed upon the testimony, and of
what inferences shall be drawn therefrom.
In consideration of the whole evidence,
they may conclude that the unfavorable
construction is proper. The charge in-
structing the jury that they must put up-
on any part of the testimony a construc-
tion favorable to defendant, if reasonable,
invades their province, and is calculated to
mislead them.

Affirmed.

RILEY v. STATE.
(Supreme Court of Alabama. Jan. 13, 1890.)

BurGLary —INstRuctions — ReasoNaBLE Dovst.

1. A charge that, “unless the evidence against
the prisoner should be such as to exclude to a mor-
al certainty every hypothesis but that of his guilt
of the offense imputed to him, they must find the
defendant not guilty, ”is correct.

2, On atrial for burglary, a requested charge,
that “the jury may look to the fact that the de-
fendant worked with Mr. Black [the owner of the
house entered] after this alleged offense, to sec
whether or not this shows guilty conscience on his
part; and, if they think it tends to show innocence
on bis part, then they ought to consider such evi-
dence, and give the defendant the benefit of all
proper inferences, "—is properly refused, as being
merely argumentative.

Appealirom circuit court, Butler county ;
Joun P. Huppanrn, Judge.

Indictment for burglary. The defendant
in this case, Paul Riley, was indicted for
burglary, in breaking and entering the
dwelling-house of Hugh Black with the
intent to commit a felony, was convicted,
and sentenced to the penitentiary for the
term of five years. On the trial, as is
shown by the bill of exceptions, it was
proved on the part of the prosecution that
the house of said Black was broken and
entered into one Saturday night, in the fall
of 1888, by two persons, who were seen by
some members of the family; and the evi-

Sudha ets oo het hi

SOUTHERN REPORTER, Vot. 7.

Sloe a 4

(Ala.

dence for the prosecution tended, further,
to show that these persons were the de-
fendant and his brother, Shepherd Riley.
The testimony for the defendant, on the
other hand, tended to show that he was
not one of the persotis who so broke and
entered said house; that he did not leave
the community, but came back to Black’s
house on the Monday after the alleged
burglary, and was arrested at his own
home on the Tuesday or Wednesday after-
wards. The defendant requested thecourt
to give two charges in writing, and duly
excepted to the refusal by the court to give
either one of them. The first charge is
eopied in the opinion of the court, and the
second was in the following language:
“Phe jury may look to the fact that the
defendant worked with Mr. Black after
this alleg2d offense, to see whether or not
this shows guilty conscience on his part;
and, if they think it tends to show inno-
cence on his part, then they ought to con-
sider such evidence, and give the defendant
the benefit of all proper inferences.”

Richardson & Steiner, for appellant.
Atty. Gen. Martin, for the State.

SoMERVILLE, J. The court erred in re-
fusing to givethe first charge requested by
the defendant, which was that, “unless the
evidence against the prisoner should be
such as to exclude to a moral certainty
every hypothesis but that of his guilt of
the offense imputed to him, they must find
the defendant not guilty.” A failure to
give this precise charge was held reversible
error in Mose v. State, 36 Ala. 212, decided
as far back as 1860; and this ruling was
approved in Coleman v. State, 59 Ala. 52.
In theformer case it was said: “Unless the
jury are morally certain of the defendant’s
guilt, it cannot be said that they have no
reasonable doubt of his guilt. The propo-
sition, therefore, that the jury must be con-
vinced to a moral certainty of the defend-
ant’s guilt, is substantially the same with
the proposition that they must be con-
vinced bevond a reasonable doubt.” The
case of Blackburn v. State, 86 Ala. 595, 6
South. Rep. 96, is distinguishable from the
cases above cited. On the authority of
these cases, we reverse the judgment in the
present case.

The second charge was properly refused
as being merely argumentative. Hussey
v. State, 86 Ala. 34, 5 South. Rep. 484; Sni-
der v. Burks, 84 Ala. 53, 4 South. Rep. 225.

The remaining question, arising on the
action of the court in sustaining the chal-
lenge of the state to the juror Dreaden, will
not arise on another trial, in all probabil-
ity, and need not be considered.

The judgment is reversed, and the cause
remanded for a new trial. The defendant,
in the mean while, will be retained in cus-
tody until discharged by duecourse of law.

DUNCAN V. STATE.
(Supreme Court of Alabama. Jan. 18, 1890.)

Homicipe—EvipENcE TO SHow Motive—ERRoRS
xot APPARENT ON RECORD.

j. On a trial for wife murder, evidence as to
the conduct and conversation of the defendant in
reference to a girl with whom he was infatuated,

$oN ,
Pe ee ee

Ala.)

done and he:
his wife, an
show dissaii
as tending \
of the crime
2. The s:
not shown b-
reversal.

Appeal fi
J. M. Cans

Indictni«
in this cs
for the mit
morphine,
eount of |
precise kit
grand jur)
the first (
The body ¢
day atter
the stom:
of Aubur
tained “o
phine.” "
defendar *
friend, bor
a week or
wife; but
that he h
and she fh
he denied
phine to |
of declare
far adv!
she was
her condi
she woul:
knew ho.
ness for
tion had |
standin?
of the ‘l:
day,) in \
was goii
a leapin t
it,” and
Georgia |
her to ni
big gate |
to go to
and ask |
understi!
note.” ‘I
“about |
death of
versatior
ter told |
self and §
vised her
she loved
“What \
underst:
any ot).
“that he
defenda ii
tion fre
ground t
ine,” ari
his moti
witness |

a conver
day, the
the dele
and the
next nis.
that th
Thursd:


é
25 —— AAA A aA ah A ta dre shade tie nad te Lidl eel di bieab bah ahalatobintat ited clalsLaist sis Ad At sias shall Lehabbledas le

20 FORGOTTEN TRAILS

wife’s mouth and I call upon God to witness it that I am telling
the truth. I was sick of the awful crime and if I could have
called it back all the fair damsels in Alabama could not have
influenced me to have allowed such a thing done. Standing
over this death trap as I am, I have hope of meeting my God
in peace. I have given up mother, brother, sister, and friends
without great trouble, but my only dread is to leave my three
little boys to lead the orphans’ road as I have done all through
life, all on the account of a fair damsel. I know my children are
in good hands. They are with Jay Ammons, a cousin of mine,
who lives near Echo and you know, people, they are dear to me.
They came to the jail to see me last week, and the oldest remem-
bered the times when he knelt around the family altar in prayer
and he asked me if I ever prayed now. I always had family
prayer at my house when at home.

“IT am giving away in my voice, but I am not in the least
excited. I could stand here and tell of the horrible crime that I
have got to suffer for today. I was raised near Echo in Dale
County and lived happily with my wife prior to the time I met
this young lady and had it not have been for Mr. Baldree and
his daughter, I would now be at home-with my family. Young
people take warning at me. Don’t let a flattering girl lead you
astray and damn your soul, but live a Christian life.

“IT have forgiven everybody. I die with no malice in my
heart, and if John Q. Baldree is here today I would like to shake
his hand and tell him I have nothing against him. I feel like
God has forgiven all my sins, and I expect to know Dolly again
in Heaven where enemies can never separate us. I never thought
that I would die this way, but it seems that fate has been against
me.”

Just here W. H. Simmons proposed a contribution for the
condemned’s children. During the interval Duncan stood upon the
gallows smoking a cigar and recognizing some of his boyhood
friends in the crowd and spoke to them very pleasantly. Someone
in the crowd made the proposition for all who were in favor of
saving his neck to hold up their hands. Simultaneously thousands
of hands went up and Sheriff Byrd and the prisoner saw the
imminent danger. The doomed man assisted the sheriff in quiet-
ing the sympathetic throng. “

avettababatttasstabalain lata Lethaia thie i Ural relat icls heieneolate lee ie labolebatebasdelerbae aut

STORIES FROM DALE’S PAST 21

Duncan was informed that he had but about 10 minutes to
live and that he must hurry through. He said, “‘I do thank this
kind people today for the kind contribution to my poor little
children, and it is a consolation for me to know that in my last
hour I have friends and sympathizers. I desire to return thanks
to the sheriff and jailor for their kindness to me since my con-
finement in jail. My attorneys, Carmichael, Simmons and Borders,
have worked for me manfully, without money too, and I desire
to thank them in my last moments. I must leave you now, my
time has come, so one and all, Goodbye.”’

The curtain was drawn back and the people inside the enclo-
sure began telling him goodbye. Sheriff Byrd began tying the
knot. Duncan wanted to examine the tie and asked that Byrd
not get excited since he himself was not. The cap was put over
his face. He asked how long it would take for him to die after
the trap was sprung. He was answered by someone in th:
closure.

The trap was sprung at 2:30 o’clock and his neck was broken.
He died within six minutes and was cut down. He never moved
a muscle after the drop.

His body was loaded on a wagon and taken by relatives to
Damascus Church, located one mile south of Graceville, Florida,
where he was buried.

THE McSWEEN MURDERS

The McSween murders were among the most gruesome ever re-
corded in the history of Dale County.

Angus McSween and wife, Mary, lived in a little one room
house three miles south of Newton on the present Newton—Hart-
ford highway. McSween was a good farmer. He had a black-
smith and woodwork shop at his home. The couple were thrifty
and kept their savings in an iron safe in one corner of their
house.

One night in August 1893 they went to bed as usual, not
dreaming of the awful tragedy which was just ahead. Sometime
after midnight someone rapped on the door. Getting out of bed,
McSween opened the door and two Negro men stepped inside.
One had an axe and the other a hammer, which they had found
in the blacksmith shop outside. Without further warning, one of


$ e
a Clan ERORE
~\. Ging

‘ : ‘ ! : . i} |, 4
ielow We Reproduce An

pV.

\

\

\
\
}
|

|

~ was conveyed from the county jail to}
_the gallows in a carriage drawn |

; white, hanged Ozark,, ay

a: AY

Account of the Hanging of Rev. Henr

wa

oH

6

1

at

At the request of a number of read-
ers we reproduce below an‘acount fo
the hanging and statement of Rev:
Henry Duncan, which appeared in a-
copy of the Star of February 26 1890.
A great many of our people remember

‘the awful crime for which he paid the

death penalty in this city _on Friday,
21st, 1890. The article in full is as.
follows: | Fak at ie yee

ee hat
‘a hoki

/ ~ “The crime for which Henry Dun-

can was hanged on Friday last, was
perhaps one of the most heinous ever
recorded in the annals of Alabama’s
history. The: history of which has
been published several times before,
in this paper, and at this- time~ we
deem it necessary to republish it.
The large crowd that was present

' to witness the execution and to hear

the dying statements of Henry Duncan|
was variously estimated at from 5,-!
000 to 10,000 people. Sheriff Byrd
and Jailor Barnes went to the jail
bout 12 o'clock, had the doomed man.
shaved and dressed and _ everything
made ready for the execution. He,

a pair of fine horses, in company wit

the Sheriff. Clerk, Jailor and guards,
while on this very solemn journey
he smoked a cigar, and recognizing
several of his friends, spoke to them
very pleasantly. Upon arriving at
the gallows, he entered, the hand cuffs
were removed, he was seated and talk-
ed for a few minutes with those on
the inside. At seven minutes past
ene o’e}sck, he ascended the gallows,

“4-com. ony With Sheriff Byrd and
Tailor | «nes and adedcessed the crowd
: folluws: “Henorztie Ladies’ and
rentlemcen, one aid all: T desire to

rake mv last speech to a conyvera- |
icon in this world, and in doin so, I
io not want to be misurderstood, for

-hat Is. y today wil be the truth, and
1 call uj on God to witness this fact.
Standing ov _r this trap of deati: vo-

day, does not excite Henry bunvan,
The Saviour gave up his life, and all.
must go the same road, old and young
black and white, I am not laboring |
under any excitement, but stand here,
today and speak the truth as a con-
demned man. ] am resigned to my fate |
I acknowledge my part of the horri--
ble crime, other parties though ought
to stand by my side.
tu my youth, and follow my, life up
to now. My father died in the con-
federate service, fighting: for his
country, and his youngest son stands
upon the gallows today. I was raised
an orphan boy, by a prayerful moth-
er, and always found her words to. be
true. I have know nwhat it was to be
hungry and bare of clothes, but it was
tke best my poor mother could do. I
have known what it was to have the

‘kicks and scorns of the world all my

life, but have struggled through by
the help of God. 1 attached myself
to, the Freewill Baptist church, six
years ago, was baptised by Rev. J. C.
Hendley, and was licensed to preach

. Ir eS Pr Ss. pee d Ie 4-
| . BER a AP at ws a E Ca | Y ts Neco nes
On Friday, February 21st, 1890. From The

‘a’ short ‘time afterwards, “and ‘look’

Let me go back .

‘the neuralgia.”.

K + a
Cure

where I stand today, all no account of
a flattering girl. I was working for
50 cents a day, for John Q. Baldree,
the father of the young lady, when
she first began to make love to me.
I was honestly earning bread for my
wife and helpless children. I came
from the field one day, hot.and tired,
and in her fathers own kitchen, I said
to her, “what does poor people want
to live for anyhow.” She replied
that she wanted to live just to look
at some folks and I asked her who she
wanted to look at, and she said, “you
for one.” From that very time, the
evil commenced. I at first resisted
it, but her influence overbalanced me
and I began to meet Ker on half way’
grounds. I am now ready to tell the
whole thing. It began to grow strong-
er. I would meet her in different
places, in her father’s kitchen, and at
all times and on all occasions, she met
me with the same sweet flattering
smile, and one morning in her father’s
kitchen, she sat on this very knee,
threw her arms around my neck and
says, “Henry, I love you more than I
can tell.” Notice the inducements.
from the flattering girl. She says,
“Henry, if your wife was out of the
way, and I was your wife, I would
meet you at the gate with a sweet
smile of welcome on my face,” and
people, Iam sot afraid ty stand here

over this d...th trap, and tell the truth
inorder lo sieet m, God in peace. .]
feel ‘ocday that I will mect Dolly, my
murécred wife in Heaven, and pet her
forgiveness. IT have tal:cen my case
fou Goi, und may the other guiity par-
ties dy ihe sare thing, and. get for-

eiveress for this awful sin. People, _
the existence of love did not stop
there. I would lay in her father’s
house, in a little shea room in the pi-
azza, and this flattering girl would
come to my bed side, kiss me, hug me,
and tell me to get up, and come into |
the kitchen where she was cooking
breakfast. I appeal to you people to
look at the inducements she offered
me, and the circumstances under which
I was placed. I am one of the guilty
parties, and John Q. Baldree and Geor-
gia Baldree are the others implicated
in the crime.

the death trap, for a crime of which

‘I am the only one convicted, the other

parties stand innocent in th eyes of
the law, and I pray God chat they
may stand justified as I do. Now to
the understanding between ‘1s, John
Q. Baldree was the zirst m: : to men-

ition quitting my wife to n.c, he told
ime to quit her. ‘I told him I would

not leave my little children and he.
then told me to give her 4 dose ofmedi-
cine and get her out of the way, and
says, “If you will do it I will go to
Newton tomorow and get you a bottle
of morphine, and it wil be understood
thet it is to give to your mother for
He furnished the
money, for I never had a nickle, and
bought me the morphine, gave it to
me, and I garied it in my pocket for
several days, and could not have the
heart to give it to Dolly, my wife. It

890. 2

Ne a ACATAT T

bbeoille; Ala .
y Duncan, and the Pathetic Address I ad.

. Georgia marry

‘Ozark ‘Sta;

‘give them up.

I stand here today over ,

ii GO:

was an understanding I was to get
my wife out of the way, and me and
i . He told me. in
'Georgia’s presence how much to give
her, but I could not do it. I gave it to
Georgia one morning and told her it
was her business, and she could do it
if she wished. She went to my house,
prepared the medicine for my wife,.
and told her it would make her mis-
carry. She came on back through the
field where I was plowing and told
me what she had done, and told me
Dolly said for me to go home, butif
she was me she wouldn’t do it. After
I eat supper, I was sitting in Baldree’s
piazza talking to him, and all’ of a
sudden I got restless and could stay
there no longer. I left and went home
and found my wife lying on the bed
very sick and told me that she could
breathe hardly, and felt like ropes
“ere tied uround her. I waited on
her patientiy, for dear people, I was
sorry it had been done and if it could
have been called back IT weuld heve
been the huppiest person in the wor!l,
for 1 had w dear good wifes and she
loved me too. IT sat up with her all”

night by myself, and done everything
T contd for her TE put no poison to
ny Wife’s’ mouth «sd FE eall upon God

to witness it. ‘Phat 1] am telling the
solemn truth, I was sick of the aw-.
ful crime and if I could have called
it back all the fair damsels in Ala-
bama could not have influenced me to
have allowed such a thing done. Stand-
ing over this death trap-as I am, I
have a hope of meeting my God in
peace. I have given up my mother,
brother, sister and friends, without
great trouble, but my only dread is
to leave my three little boys to lead
the orphan’s road as I have done all
through life, all on account. of a fair
damsel, I know my children are in
good hands, they are with Mr. Jay
Ammons, a cousin of mine, who lives
near Echo, but you know people, they
are dear to.me. They came to the
jail to see me last’ week, and the old-

_est remembered the times when . he

knelt around.the family altar in pray-
er, and asked me if I ever prayed
now. Oh, my God! how hard it is to
I always had fumily
prayer at my house when at home.

I am.giving away in my voice but
am not the in least ‘excited.. I tould
stand here and talk three hours afid
never tire, and tell of the horrible
crime that I have got to‘sufer for to-
day. I was raised near Echo in this
county, and lived hapily with my wife

rior to the time I met this young
ady, and had it not ben for Mr. Bai-
dree and his daughter would now be
at home with my family. Young peo-
ple take warning at me, don’t ‘let a
flattering girl lead you astray and
damn your soul, but live a christian
life, sing a christian song, talk a
christian talk, and die a cnristian
death. Prepare to meet God, and
don’t sink down into a yawning hell. I
have forgiven everybody, I die with
no malice in my heart, and if John Q.
Baldre is her today, I would love to
shake his hand, an dtell him I have
nothing against him. I feel that God
has forgiven all of my sins, I expect
to meet Doll ysoon, I expect to know
her agai nin heaven, where enemies
can never separate us. I never thought
I would die this way, but it seems that
fate has been against me. (Request

from some ‘person in the audience to ede pian
alt how came some tools to be found ‘08 tt Would o..
“,in.the jail.) Mr. Bud Pelham, who ‘'4p was spray.
was in thé cage with me, wrote a note Us Seme ers .

to his brother Claude to bring him = '7@P WAS spri 4,
three files, a cold chisel, a dirk, and ‘Y* brakwen, Thi.

SQ fect of rope, and to bring them on eand was by
Tuesday morning before day. He: Scorn musele me
hrought them and 1 assisted him in Pt a OE own tiie
dri wing them in through the window, -f@stiv tvcurah th.
an at the time. the “search for the ken hy si ]atives,

tocls was made I had some of them in) 46 Carsied to“)
ny shoes. Bud had some of them in Jackson county, Fle:
is shoes and Eutaw Parnell some in ried on Sunday las¢.
his shoes, We intended to make an |
escape if possible,: but™ there —beitrg- :
guurds around the jail the other pris-
oners decided to wait until after my
execution, the guards . would | be re-
\ moved, and they would have a better
| chance, and remember, dear ‘people,
| that I: have, told solemn truths about
| this matter. I do not want to be mis-
| represened.: I do love this girl today,
and if I had taken the advice! of my
| wife and mother I would not have been-
here today, so people take a warning >
/ et me and don’t let a fisttentng | girl
/ influence ‘you. - :--- (4
Just here Mr We HY Simmons pret
posed a contribution for his) litte |
ehildren and in a very, -lort .time 2/)
purse of _one’ hundr; : dollars wae ||
raised. During the itit.1 a! Ne Duos: |. oe,
can stood upon the fe! ws | Smoking & ;
a cigar, and recogniziz, some of his):
boyhod ‘friends in thec rewd, spoke to):
them very picasa ya wot displaying *
the least excitement. Sine one in the": t
erowd made a propos: ‘jon for all who «
were in favor of savin; his! neck tp. 2
old up their hands. Shon vultaneoushy 4
thousands of hands Went ‘up, and/}.
Sheriff Byrd and the ‘prisoner seeing
the imminent ari er wfa stampede, 2
quelled it at once, the doomed mana:
sisting him in doing so. He was in! |
formed that he had but ten minutes tos
live, and that he must-hurry throug; ,
He said, I do thank this people today;
for the kind contribution to my poor:
lit tle children, and it is 2 consolation ’
to me to know that.in my last hour] ”
have friends and sympathizers. 1°
want this money put in the hands of |
the probate judge. I want my attor-
ney, C, D.. Carmichael, and the judge |
to se that it is properly handled»:
that my children may get the benefit
Ne it. I also desire to return thanks.
to the sheriff and jailor for thei -
kindness to me since my confinement .
in jail, for they have done al they could”
for me. My attorneys, Carmichae.
Simons and Borders have worked fe:
me manfully, without money too, af:
I desire to thank them in my last 7’
ments. They are honorable men 2".
have done all they could . for, me.-
must leave you-all-now; my time
come; so, one and all, code. hve, go
bye!
The curtain was dre
people on che inside «.

apes

began telling him coon o.
‘them all adieu with tethin
words and messave: ated
blessities of) the) Gov ees
vidual Sheriff By,
abot ry paraters t

hie Revk = when he:

Muncan te let home
rated Mr. Byi PrTeRe

. that he was not


Ts, GT MITE

Execution

From Page 1A

current, to cause death” when the
‘first charge was administered at

12:07 a.m.

‘Between the first attempt and the
lethal charge, Dunkins’ father and
uncle waited in silence in the wit-

“ness room.
_ & When the switch was first pulled,
- Dunkins, wearing a sweat-soaked

white dress shirt, camel jacket and
blue slacks, sat motionless in the
chair, his fists clenched. He did not
move.

When it was obvious that Dunkins
had not received a lethal charge, a

captain of the prison guard opened

the witness room door and said, “I
believe we’ve got the jacks on
wrong.” Fe

During the wait while doctors

- checked Dunkins’ condition, his
attorney Steve Ellis turned to a fam- °

ily member and whispered “they're
torturing him.” The guard turned to
Thigpen and said, “I apologize.”

“Death by electrocution in and of
itself is inhumane punishment,” said
Ellis, a Philadelphia lawyer. “The
prospect of preparing for death and
then having to wait ... while family
and loved ones watch” is torture.

“It was a grisly scene,” he said.

Thigpen said four plugs are con-
nected to the back wall of the execu-
tion chamber, two of which are sup-
posed to be plugged into the chair
before execution. The wrong plugs
were hooked to the chair, he said.

“I regret very, very much what

_ happened,” Thigpin said. “I just hope

that he was not conscious and did
not suffer.”

Doctors who examined Dunkins
between charges said he was uncon-
scious, but had a strong heart beat,
Thigpen said.

Dunkins’ execution was not the
first in which Alabama’s electric

chair, nicknamed “Yellow Mama,”

failed to function properly. In 1983,
John Louis Evans III was given
three charges before being pro-
nounced dead. »

Thigpen wouldn’t say who was
responsible for the error, but said
“steps will be taken to be sure it
doesn’t happen again.”

A Jefferson County Circuit Court
jury of 12 women in May 1981 found
Dunkins guilty of capital murder in
the rape and killing of Lynn
McCurry, 26, a mother of four from
Warrior.,

Mrs. McCurry’s nude and muti-
lated body was found May 26, 1980,
tied to an oak tree 300 yards behind
her home. She had been raped
repeatedly and stabbed 66 times
with a kitchen knife.

Co-defendant Frank Marie Harris
was convicted for his part in the
crime and is serving a sentence of

‘life without parole at West Jefferson

Correctional Facility. _ '
‘Experts testified that Dunkins

was bordeline mentally retarded and
had the mental capacity of a person
aged 10-12. _

His attorneys argued that the exe-
cution should have been blocked
because the jury that convicted him
didn’t get to consider his mental
abilities in recommending the judge
impose the death penalty. He was 19
when the crime occurred and had no
prior record.

US. District Judge James Han-

cock, who denied a stay of execution

Wednesday, said regardless of

“whether the jury knew Dunkins’

mental condition, the trial judge did,
“and that’s what’s important, since

the judge is the one who actually -

sentenced him to die.” ae

A recent U.S. Supreme Court: rul-
ing held that the death penalty may
be applied to mentally retarded kill-
ers if the sentencing juries or judges
have considered the retardation as a
mitigating factor.

In a joint news conference on the
Capitol steps in Montgomery Thurs-
day, officials from Amnesty Interna-
tional, the Alabama Prison Project
and the Civil Liberties Union of Ala-
bama appealed to Gov. Guy Hunt to
stay the execution.

Olivia Turner, executive director
of the-CLUA, called Dunkins “a man
with the mind of a child,” and said
“his death will not make any of us
safer.” :

The groups also called on the Ala-
bama Legislature to pass a bill ban-
ning the death penalty for retarded
people.

Last ditch efforts by Ellis to delay
the execution failed Thursday when
the 11th Circuit Court of Appeals in
Atlanta and the U.S. Supreme Court
refused to grant a stay.

Dunkins refused a last meal,

_prison officials said. He spent his

last day visiting with his father, two
uncles, a Birmingham minister and

-a friend from Maryland. His mother

did not make the trip to Atmore.

Ellis said Dunkins made one final
request, which was not granted.

Dunkins asked Hunt to speak to
him on the telephone or come visit
him before he died, Ellis said. When
Hunt refused, Dunkins sent the gov-
ernor a message asking him to read
John 8:7, Dunkins’ favorite Bible
verse, Ellis said.

‘Dunkins’ execution was the first of
a Jefferson County prisoner since
1959, when Ernest Cornell Walker
died in the electric chair after a
rape conviction. ” :

Dunkins was the 158th inmate
executed in Alabama’s electric
chair. With his death, 103 inmates
remain on Alabama’s Death Row.


oe

| On second try, Dunkins
| executed for murder

} By John Archibald
News Staff writer .

ATMORE — After a bungled first attempt and
19-minute delay, a mildly mentally retarded man
{convicted in the gruesome slaying of a Warrior
woman died this morning in Alabama’s electric
chair.

Horace Franklin Dunkins Jr., a 28-year-old War-
rior man, was pronounced dead at 12:27 a.m.

He was the first Jefferson County inmate to be
executed in 30 years.

The execution came hours after the U.S.
Supreme Court turned down two last-minute
appeals.

Prison Commissioner Morris Thigpen, who wit-
nessesd the execution at Holman Prison, said the
electric chair was improperly wired “by human
error,” and “as a result there was not sufficient

See Execution, Page 8A Horace Franklin Dunkins Jr.

The Birmingham News

path

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: = for a total of 3g. Seconds. Mr. formed with no one in the chair, smoothly as possible It’s a team 9722 03 srpaye
: Exec ut ion Thigpen "Said" prison: Officials so’ the amount of voltage that. - effort: Cert;

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ertainly those who Were "/ « SUIDpry 9q |

were uncertain how much. volt. reaches the Chair: is. Unknown, . ~ Involved with this last night are “AW “Aazeur
Continued from1q age 2 acted Dunkins inthe first. Mr. Thigpen Sand) pe <./. NOt. satisfied with what took erodes 3yy u
rubbing “neem knuckles down ‘Urge when he probes were im- _. “You can Set: some. reading . Place. But T have reason to be. —~?qeTy: UL Aq
 Dunking’ breast bone and inch- Properly connected. although from the. tests, but ther e-is. no. lieve it was not done deliberate- 0} pompyee
‘ing his chest. When Dunkins re- Attempts have: been made to. de>. way {0 know if they aré.: Ageus Wythe ces eee of? Pestuer 5;
| ‘Sponded to neither action, the termine that amount, Se NS ae Fate,” Mr, Thigpen said. sy ES Mr. Thigpen added that any © 4} aoe ps
-docto ;S declared } im The chair was tested Tuesday. We feel ig Ure that with this Sapange, say se ise 1 ffodaz Liv
| ‘Unconscious, Mr Thigpen said. un. by ai, atk Thursday -at_9 method. Ae I appen 0 ais ose In sta San
« “You can Sometimes get a faint a.m. by a private éle asthe ES waren He’ ai iy
‘irregular heartbeat, but they are Side the =D at led wn, Were: cl ae sc Oe ales od
Mot Soing to Pronounce a Person ° rections, Mr. Thi Lavine, ;

-dead until there ene Nitalic: Pipe testi; :s.includesi<yig
signs,” Mr. Thigpen Said. inspections “te


|
|
|

>,

poe
\ e

|S :
Ne he SO te

—. _s

xecution
system |

reworked —

W@ Electrodes used to send a 38-
second surge of 1,800 volts of
electricity to the state's electric
chair have been reworked to
make it more difficult to connec
themimproperly - }

By MICHELLE GARLAND
Advertiser Staff Writer : .

State prison officials believe they
have reduced the chance of another
“human error” that required two surges
of electricity to execute convicted rapist
rte murderer Horace Franklin Dunkins

r. '

Electrodes used to
send a 38-second
surge of 1,800 volts
of electricity to the
state’s electric chair
were. connected
improperly during
the first attempt to
execute. Dunkins
early Friday, state
Pee? dig ohn
Commissioner
Morris Thigpen said pane
Friday afternoon. _s.. Thigpen |

To guard against ‘that. happening
again, a hole has been drilled through’
two of the four probes that transmit

electricity to the chair and a cotter pin.
has been inserted through them on. the:

other side of the wall so the probe
cannot be removed inadvertently,. Mr.’
Thigpen said.

Four probes are connected to a wall
outlet and: apparently the two probes

that connect to the chair were switched,’ .°
“Mr. Thigpen said. The. improper —
connections would not allow the normal. -
«surge of electrical current’ to -reach
* Dunkins, he said. ;

” The probes are connected to the wall’
“and to two parts of the chair. One is
“ attached to the inmate’s left leg and the
_ other is connected to his skull,’ Mr.
’ Thigpen said. Se rae aaa ge Ba
‘* Salt-soaked sponges are placed

beneath the electrodes attached to the

1 inmate’s head and leg, he said. The’

strong salt solution is an excellent:
conductor, he said. ity ater

Officials have not removed all chances
for a repeat of the error. that forced.

(' officials to send a.second surge of

electricity to kill Dunkins because the
electrodes must still be attached to the
proper probes in the chair for an

‘execution and could be _ improperly.
» - attached.

“We certainly regret very much the
fact that we had to'go through a second
cycle of the chair in order to carry out
the sentence of the court,” Mr. Thigpen

. Said. ‘We know human error. was made

in the attempt.” dons
The first surge of electricity occurred

“at 12:08 a.m., and the second surge went

through the chair at 12:17..am. Mr. -
Dunkins was pronounced dead by
doctors at 12:27 a.m. Friday.

The two doctors who examined Mr.

‘ Dunkins following the first surge said he

had a strong heartbeat, strong pulse and
respiratory signs, but he was not

--conscious, Mr. Thigpen said. Doctors

checked for a response from Dunkins by
Please see EXECUTION. 2A

E z


H1eD ‘puelyxeo:

erulo

 epcaa

~

* Cable connections blamed |
-in botched execution

=in-1976. 7 7)”
x Inruling June 26: ‘that the Con- —

- TLANT sag sly: fie
= A a irisly ’ stitution allows statestoexecute _

-_nale to a troubled legal journey,

: ae Alabama. prison.officials had to ~-mentally-retarded. -murderers, -||-

a the TJ. <& Susreme. Cae ort said ¢ that
use a second. joit- oL- eiectricity. SS Ae See

- yesterday to put to death a mild. . Juries were required to consider
iF vetandaa ct Mase after the ¢Vidence of retardation before
" first charge failed to kill him. imposing a death sentence.

Friday

‘ July 14, 1989 35 cents

‘Sunny, high 95, low 50

Thursday’s smog level: 64 (moderate)
Today’s smog forecast: moderate
Complete weather report; page 20A

Cuban military hero,
3 others executed

=a. Aga rural Corgi plas ee i

==MExcow4T Y—A-war-hero- who--~
‘= fought with Fidel Castro in Cuba’s —

= Fevolution and three other drug.

~“smugglers were executed Thursday,

“the official Cuban néws agency said.

ae ~~=~The drug ring: was: responsible for
E ‘smuggling cocaine and mari juana to
--—-the United States, Cuban-government

prosecutors said during recent trials.
Maj. Gen. Arnaldo Ochoa, Coi.

' Alabama officials said impro-
' per cable connections were to
blame for the fact that the exe-
. cution of Horace Franklin Dun-
kins Jr. took 19 minutes.
Dunkins, who was convicted of
the 1880 rape and murder of a
* woman from Warrior, Ala., be-
‘- came the first retarded murder-
~ er to be executed since the Su-
preme Court said last month the
_, Constitution did not bar such ex: _
- ecutions. eRe
Dunkins, 28, was executed at

Court refusetl Wate THurs¢

Officials said the first throw

Of the electrical switch failed to

kill Dunkins. Officials recon-
nected the cables as Dunkins sat,
apparently ~ unconscious,
strapped to the electric chair.
At 12:17, the switch was
thrown a second time and’10
minutes later, he was declared _
a
Alabama officials said human

error was the cause of the prob-_ ||
4

TN = nt et) reper

P ~~ “T regret. very’ “very much ©
_-.+-Atmore,-Ala., after the Supreme---What happened,” the Alabama: =|}

“kntorio de Ia Guardia Font, Maj.
"Amado Padron and Capt. Jorge
Martinez were lined up against a wail
and shot by a firing squad at dawn
Thursday, according to a Cuban news
‘agency report monitored in Mexico.

-Ochoa was a trusted aide to President

-Castro, commanding Cuban forces in
Ethiopia and Angola and heading a

~—€uban military mission to Nicaragua. es

as ee pcs aoe

=<

a ae ae Sb

Retarded. Killer: executed

Sy,

ette-Journal
is

+

ORE, Ala.-=A-mildly-retarded— =

rison—commissioner ——Morri is

- block his execution. The court Thigpen, said. “It was human er-

‘ J. Brennan and ve Mar-

shall dissenting. - Sin
In Georgia, the state Sapecmne:

‘ Court issued atemporary stay
:-execution Wednesday for Som H.—
* =Fleming. wg t aS" also. Peet di-

+ voted 7-2 with Justices Willi -for-L. just-hope- that-he-was. not. --}
x — “conscious and did not’suffer.”" ==

_-Dunkins and. an accomplice _ sf
were convicted ‘of the 1980 rape= "|
= and. murder of.a se yeaeold = oie
a mother: of-four: She-was-raped=—}
and: then” stabbed'66tlmes: while" ~ =T

nas

—man-wes- executed im Alabar
~ electric chair early today for the 1980

“.a-Fape-murder of’a woman after the ~~~

20:8; Supreme Court twice turned =
*r7-dowm last-minute appeals=y- ix 98 1a
“===3Horacé Franklin Dunkins:Jr., :

“= EDT (9:25 p.m: Thursday PDT).

t\ Founded 1870
day| July 14, 1989

‘#2"Swas declared’ I'dead at 12:25 a. m. saa E

cmangenater Thursday, the-Supreme: Courts}.

Aono

Soe e pats af


. tarded inmates may also

a |
vidy
|
|

Zz cases, test r ulin
on execution of —

retarded

By Peter Applebome {
New York Times

ATLANTA — Less than a month
after the Supreme Court ruled that
states could execute murderers who
were mentally retarded, two execu-
tions scheduled within 36 hours of
each other are focusing attention on
the complex issues raised by the
court decision. |

The Georgia Supreme Coutt, in a
4-3 vote Wednesday, issued a btay of
execution for Son H. Flemihg, 59,
five hours before he was to die for :
the 1976 killing of a police chiéf.

Early Friday morning, Alabama is
scheduled to execute Horacé Frank-
lin Dunkins Jr., 28, convicted $f rape
and murder in Warrior, Ala., in 1980.

Both men are classified as neon
retarded, with intelligence quotient
scores below 70 and mental dévelop-
ment below that of a 12-year-dld.

Both were accused of especially

’ brutal crimes that outraged their

communities, both were convicted
and sentenced by juries that were
unaware of their retardation and
both are blacks convicted of, killing
whites.

And both cases, the pe
tions of retarded people scheduled
since the Supreme Court rullng, re-
flect many of the difficulties dnd am-
biguities of determining who }s men-
tally retarded and what effect: ‘that,
has on criminal behavior. ie

Paradoxically, the Suprem abet
ruling allowing the execution of re-
their

The court ruled on June 26 that
the Constitution allowed statds to ex-
ecute mentally retarded murderers,
but the justices alsd said juriés were
required to consider a person’s men-
tal disability before imp sing a
death sentence. ‘|

Lawyers for Fleming and unkins
are invoking that’ reasoning|in con-
testing the death sentences. {| | |

In both cases, the questio about
mental competence have beén over-
shadowed by revulsion 0 yer t ‘the
crimes.

Criminal justice experts dslimate
that 10 percent of the inmates facing
executions nationally are retarded,
but many have hot been evaldated so
the experts view the figufe as a
rough estimate.

Stephen Bright, direstot of the
Southern Prisoners Defense Com-
mittee here, which represtnts in-
mates in 11 states, said overworked
and underpaid court- appointed law-

best hope for a reprieve. :

1
iz
a
!

killers —

yers in capital cases seldom had the
time, knowledge or resources to ade-
quatsly document mental retarda:
tion in their clients.

And he said the courts seldom Had
the expertise to evaluate such cases,

“The problem is that no one knows
anything about this stuff,” Bright
said “There are very few specialists
who know what being mentally re:
tarded is, and how it affects a per
sdn’s ability to reason and to make
judgments.”

Fleming, whose execution had
been delayed twice before Wednes-
day’s ruling, was convicted of the
197¢ murder of Ed Giddens, the 29-
year-old police chief of asmall town,
Ray City.

Giddens stopped a car driven by
Fléming but was apparently un-
aware that he and two other men
had committed a robbery earlier. ©
_ The officer was overpowered, shot
several times in the head and his
body was dumped in a swamp. One
other man has been executed and
ahother given a life sentence in the
case.

Dunkins was convicted of raping
and killing a 26-year-old mother of
four in 1980. She was stabbed 86
times.

. Fleming was schéduled to itte at 7
ip.mn. today, but after the Georg!
iBdard of Pardons and Paroles r
fused té commite his sentence tb
life in prison on the basis. of the new
arguments, the ‘Georgia Suprem

|

|

‘Court ordered a Stay while it consic -

ere: ithecase. .

The Georgia Legislature banne
‘executions of the mentally retardéd
last year but did not apply the law.
ininates already sentenced.

(Orr ne two cases are both typical a id
itroubling because they deal with am-
big ities about what constitutes men-
tal retardation. -

‘ Foth men have IQ scores just be-

low 10; which puts them near the up-

‘per ‘end of the range of the mild ly
mentally retarded.
‘ {Id Fleming’s case, Georgia is ques-
“tigning whether his IQ is below 70. In
Du skins’ case, Alebama officials sdy
| his IX) ts so close to the upper end ‘
i the scale of retardation as to ma
the distinction unimportant. —
‘Dr. Norman Ellis, a professor of
psychology at the University of Ala-
baina, said the cases reflec ted thie
difficulty of the issue in courts.

“The problem is, you're dealing
wlth a continuum here rather than
an all or nothing distinction,” he
said. as

i]

:

Yourt blacks |

The Sacramento Bee Final - Thursday, July 13,1989 A7


Ho 5 HCS__ With: this decision, the United:

fisn : +. y VOs= who becan > chief jus ice during -the*ZWalletstein; president. of theInter-.

Saad Ing mMmayrs= ==- Reagan years, and lorig Snaecamsictera tieeel- Psychoanalytic Associa-}

Laces 2 i ae ease einen ge ea vative jurist Byron White 'provided: tion="I think-it’s. pérfectlyconsis- | i
= ° fae >= the other two. )- votes: Sseesmeenra- tent with those-who believe in the | fx

Seth penalty. ESR Sanh

ae ey or those Sounser than 18 don’t vio= “Rae ladesh, Pakistan, “Barbada™
: U a =r wrong _ -_late the constitutional-ban-on cruel” and ede Ee SN ME RET

mi
f -Sions ; coatie notion that no “na-
tional consensus”-exists 3 that juve=-
<nilé or frientally= Tétarded offenders

“should “be- 9 “spared, despite public:

Pee message. to > world and unusual punishment, That 5-4 ___ One hundred- nations_or-territo—
decision by the court’s conservative ries, from Afghanistan .to Zimba-

By Deborah Zabarenko majority removed two of the last bwe, retain the right to impose se the
REUTER . legal issues surrounding’ capital death penalty. Eighteen nations réz_
WASHINGTON — Critics say punishment. -- ~~ --—~~2===- sort to execution only for such ex>

a Supreme Court decision that ‘Ve believe it definitely sends” ceptional crimes as tone: -commit—.
sites the way for executions of the ‘he Wrong message to the rest of ted during war.

'- young and the mentally ‘retarded the world,” said Janet Fink, chair: ‘The death penalty*wai*Bann
i undermines U.S. international oo shai ee communities, © in the United States in -1972-when =
standing as a voice for human ss J the Supreme Court-ruled the arbi-

rights. age “If we allow ourselves to execute trary and_capricious_way-execu~——_

ey hee the young and those who have the

How can the United Staten 1 coil ageui tbe young sue cannus._none were carried:
: oes with any moral integrity speak call ourselves. enlightened,” } -Fink- rapes Ps See are
against the killing of students by aid:

opinion polls showing that most |

Americans don’t -favor the death
penalty in such cases

The death- -penalty decisions
may have been overshadowed by
the court’s controversial finding
last week that it is constitutional to

eq=epumn the American’ flag as aform of
political POUR ee

In a news conference Tuesday

“where he announced _his call for a

tions-were carried out. anecle them: SS ea age amendment to ban

=~ Hag-buming, President..Bush.was |

~-But-the-cou rt-reinsta ted-th : = asked only a ‘fleeting question,

the Chinese government when we She ‘sai id ions day's: POS ag

— came=as7he -was leaving the.

ourselves are sentencing to death clearly indicated :the conservative .. murderers have. ‘been! put to deaticiofing SSGuiSand fe dd coe z

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these (death. 1 :penalty) - decisions)
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—— -York: “Times colummist-Tom- ‘Wick-

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Supreme Court decisions make of
this nation’s pretensions to be the
leading eee of human
rights!” ©


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tarded killer died Alabama’ s der

2| tric chair early Vriday alter pr ison ee |
officials botched hooking UP | ithe An
| ehait’s electrical connections. ae = loo!
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cute ‘him for the 1980 tape! -murder 7-4 eit
of ‘a woman. oa : | = =
) Punkins was strapped into the. A a4 |
| ehvair as his father, uncle and attors | | |

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de anbed man. !
| A euord an the witness ron |
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be rand told another guard dir act
ing the execution. al heliewe youve a
gt the jacks on wrong.
two doctors who examined
1D: aylens dete amined he was uncon,
scious, but had a strong hearthe vat.
state Prison Commissioner Mor ris
i" Pingpen told a news ¢ conference lat

ey.

—"

oe
—— a |

Judge refuses
to halt Dunkins
execution Friday ©

By The Associated Press

BIRMING-

HAM — A
federal judge
Wednesday
refused to halt

<x Friday morn-
“5 ing’s scheduled

4‘ execution of

J convicted

US .murderer-

y) rapist Horace 4
' Franklin Duk.
S~ ins Jr., reject: Dunkins ae
ing defense claims that Dunkins is
mentally retarded.

In denying a stay of execution,
U.S. District Judge James
Hancock said he was “completely
Satisfied” that Dunkins’ sppee!
was without merit, inclu ing
contentions that Dunkins is
mentally retarded and should not
be executed in light of a recent U.S.
Supreme Court ruling.

ttorneys for Dunkins argued
the execution should be halted on
grounds that a Jefferson County.
jury didn’t get to consider Dunkins’
alleged mental deficiency during
his 1981 trial. . 3

But Hancock ruled that whether
_ OF not jurors considered Dunkins’

‘~ mental condition, the trial judge
did. And that’s what’s important

wy) Since the judge is the one who |
= actually sentenced him to die in.
~) Alabama’s electric chair, Hancock »

GS, said. | ;


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Faulty wiring that prolongs executio

By GARRY MITCHELL
Associated Press Writer

ATMORE — An Alabama’prison
official said Friday that although it
took two tries to.execute a con-

‘ victed killer in the electric chair,
the first jolt of electricity rendered —

him unconscious.

The botched execution of Horace
Franklin Dunkins Jr. — with the
first failed try apparently caused
by a faulty cable hookup — is pve
to refuel arguments by deat!
penalty opponents that the electric
chair is “‘cruel and unusual punish-

ment.’’ A 1983 execution that took
three yore of electricity led to a
federal court challenge.

Dunkins’ attorney called the
drawn-out electrocution a “grisly
scene.”

The state prison commissioner
called it ‘‘human error.”

Dunkins, 28, a mildly retarded
man, was executed for the 1980
slaying of a woman who was raped
and stabbed 66 times while tied to a

ee.

The first throw of the switch at
12:08 a.m. brought no response
from the 5-foot-11 man, whose face
was covered by a black veil attach-

ee

<

ed to the electrodes on his head.
Two doctors who examined
Dunkins determined he was un-
conscious but had a strong heart-
beat, Prison Commissioner Morris
Thigpen said at a news conference
later. _

A guard in the witness room
opened the door to the death
chamber and told another guard
directing the execution, ‘‘I believe
you’ve got the jacks on wrong.”’

‘“‘They’re torturing him,’’
Dunkins’ attorney, death penalty

opponent Steve Ellis, said softly to -

a fellow witness. :
Officials fixed the problem and

threw the switch again at 12:17
a.m., delivering 2,100 volts to
Dunkins. He was declared dead 10
minutes later. ~ :

“T regret very, very much what
happened,”’ Thigpen said. “‘It was
human error. I — hope he was not
conscious and did not suffer.”

Holman Warden Charles Jones
said later Friday ‘that electrical

. current did reach Dunkins body on
the first surge. ‘‘It rendered him
unconscious,’”’ said Jones.

Of the faulty connection, he said,
‘‘Through our procedures of check-
ing the equipment each ‘day,
somehow, someway, it got revers-

n “human error

constitutional. -:

oo

be

>.
ed, and we are right now correcting
‘the problem.’’ ;
Officials said they didn’t know:
how much voltage was in the first
charge. : ; ingen <8
Alabama law allows application
of electricity to.the condemned un-
til'the prisoner is dead. oat
In 1983, three jolts of 1,900 volts:
were required to kill. murderer.
John Louis Evans III, prompting’
criticism from death penalty foes:
that Evans was, “‘burned alive.”
The incident .led to a federal:
court challenge, but the courts rul-:
the use.of the -chair was’

it > saath 2 adie Sin

aoeetniaiesienientniniaia . “ .
eee A RR, ; -

€4Gte, Lesnar, he, 7

7

7


al Continued From 1A
é | O n Corrections spokeswoman.
| Dunkins’ execution marks the

fifth time a death row inmate has
' been executed in Alabama since

@ Black : . —— the rape and Stabbing death of ti "
t i Ime, plead
By Sop eed Waren old Lynn McCurry of murder and a pa le life conviet nat ast jietierson Ppa
S ; in prison, | M
: . Th ce.
ATMO gg, Stall Writer mother of four, wars eourryy a Me MeCurry’s husband, Allen | cuted in Dee te a sft
Danks & — Horace Franklin 80 with her ON Ye in May McCurry, said he feels Dunkins rape. The state’s last execution
Thursday - i pPeared calm above r negiigee pushed deserves execution. “It’s taken ‘a : May 26 when Michael
family and friends ad door ee see phon mee ME sae “t ought to be Lindsey was executed for a Mo-
. and ( . b 2. bil der. !
chet ae State’s electric stabbed . ar He said their four children — To Manca, James Ellis
said.’ orrections officials times and tied wie pom 10, At oe and 16 — president of the American Asso-
Dunki with surgical] ~ asleep in the house when ciation on Mental Retardation,
die at 12:01 ‘am as Scheduled 1? tapat6 an oak ‘eit mother was slain, He said sought to persuade Gov. Hunt
Olman Prison. qpeens at tree 300 yards they know little except “what | that it “should be up to the Leg-
upreme Court ona Gov Pe > behind “her they see on TV” about the crime. islature to determine Whether
unt turned down leat aid ome. — Dunkins turned down a final People with (mental) deficiencies
appeals from Dunkins’ attor z Durin a meal on Thursday, prison ' should be put to death for their
who said the exe cution sh id be Caring jn officials Said. He first declined to crimes,” according to a prepared
stopped because th J the © 1980, Dunkins — appoint Witnesses to Watch his Y Statement released by the Ala-
County jury that ¢ € Je €rson said he knew Dunkins €xecution in the State’s electric ' bama Prison Project at a news
id not consider "he enn pen McCurry, the woman’s hoe then later requested that conference Thursday afternoon.
wee during his 1981 trial, Bere and. “had ‘seen Mrs. ffend “hen” Est ug ivia: Turner, ite ga lh
; arylan i ins’
described ag mildly Petts" DUNe Dunkine’ ters Birmingham pester, from | (00, 0€ ACLU, said) Dunkins
retarded with an intelligence witness testified that while he ateh nam be allowed to | Safer. “I think any Killing at any |
quotient of 69 was drinking with Dunkins and Watch. State law allows those time is wrong. Alabama js going
Frank M. Harris, Dunkins, who about to be executed to request _ to kill Mr. Dunkins, the man with

unkins, who was 19 at the j; i i .
ti ae : IS black, Said he lanned to up to five witnesses, said Debbi : “19 9
-1mé of the crime, was Convicted white woman’ io Wave sex cot Herbert, Department of er a tien

In May 198] of capital murder in him. Harris, who Was 17 at the Please See WAIT, 144
se,
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SUNDAY, JUNE 17, 1990

Expert: Inmate may have been awake

‘BM Thechair is supposed to deliver
1,800 volts immediately, but Mr.

Leuchter said the inmate received
only 60 to 70 volts in the initial jolt:

By JAY REEVES
Associated Press Writer.

The man building Alabanes: axe electric’™

chair has raised new questions about the’ *
1989 execution of Horace Franklin Dunkins
Jr., claiming the inmate probably. remained

fully awake as. the first of two electrical jolts.

went through his body...

Fred A. Leuchter said Dunkins might have .
passed out from fright after the electric chair’
was turned on the: first time’ ‘during his July:: »

14 execution. But a misconnection prevented
Dunkins from receiving enough power to
knock him out until the chair was turned on
again, said Mr. Leuchter.

3 an sure: for. the first 10 or 165 RECHESS, he

was just sitting there saying, ‘Oh my God, is
this what it is?’ ”’ Mr. Leuchter said last
week during a telephone interview from his
office in Boston, Mass.

“That must be awful to sit there and ex-

pect everything to go black and then to sit

there and feel the power coming through his °

body,” he said. “It’s an execution, but you

ia still have to reme(aper. that he isa human be-
ang. Nes

‘While the chair is supposed. to deliver an

immediate knockout punch of 1,800 volts, Mr. |
‘Leuchter said Dunkins received only 60 to 70
--¥olts, “which probably would have just hurt a
4 little.” 6. 3
“3? “He might have passed out or it might have
‘just scared him,” he said.
“. Mr. Leuchter, who has spent.a decade con-
sulting for: states: on execution methods, has
received a $51, 000 contract to build a new

electric chair. for Alabama. State. officials
hope the new chair will eliminate problems
like the one experienced during the Dunkins

chair malfunctioned.

electrocution ane another in 1983, when the

John Hale, a Department of Corrections
spokesman, last week said Dunkins was

unconscious when doctors examined him af-.

ter the first jolt. But Mr. Hale said he did not
know whether it had been determined why
the man was unconscious — whether from
the electricity or something else.

Mr. Leuchter did not attend the Dunkins’

execution and he has not seen Alabama’s
electric chair. He
judgments on the execution based on electri-

cal diagrams of the system and how the chair.

was plugged i in for the first jolt.

Dunkins was éxecuted for the 1981 rape
and murder of Lynn McCurry of Warrior, a
26-year-old mother of four. Mrs. MecCurry-
was Stabbed 66 times and her body was left -
tied to an oak tree near her home.

-said he made his.

a

reveg, EI IN

ne


WILLIAMS ELEC. CO., INC. v. HONEYWELL, INC.
Cite as 854 F.2d 389 (11th Cir. 1988)

‘fa] meeting in the forum state ... in-
volves ‘significant negotiations of impor-
tant terms’” of a contract. Sea Lift, Inc.
v. Refinadora Costarricense Petroleo,
S.A., 792 F.2d 989 (11th Cir.1986) (quoting
Neiman v. Rudolf Wolff & Co., 619 F.2d
1189, 1194 & n. 5 (7th Cir.1980)). Given the

directive of Sea Lift, we conclude that, for »

the purposes of our due process analysis,
Harmon, Geis and Clark Electric conscious-
ly directed their activities toward Florida,
thus availing itself of the “benefits and
protections” of Florida law. Burger King,
471 U.S. at 475-76, 105 S.Ct. at 2184, 85
L.Ed.2d 542-43. Geis and Harmon, repre-
senting Honeywell and Clark, went to Flor-
ida to negotiate terms of two proposed
subcontracts. As a result of these negotia-
tions, the district court found that material
changes were incorporated into the pro-
posed subcontracts. Williams Electric then
signed the subcontracts under protest.
These events indicate that “significant ne-
gotiations of important terms” occurred
during the meeting in Okaloosa County,
Florida. . Thus, by going to Florida to nego-
tiate with Williams Electric, the defendants
intentionally availed themselves of the
“benefits and protections” of that state’s
laws. Consequently, the exercise of per-
sonal jurisdiction by the district court in
Florida would not offend the due process
clause.$

The appellees argue that. the district
court’s finding that material changes to the
proposed subcontracts occurred in Florida
is clearly erroneous. They insist that the
final agreement, which was executed in
Florida, left the proposed subcontracts,
which were drafted in Texas, essentially
unchanged. We disagree. The record re-
veals that the subcontracts, executed in
Florida, reflected changes in the timing of
the commencement of the project, the work
to be completed, the responsibility for the
payment of the bond and the timing of
Williams Electric’s payments to the subcon-
tractors. From an examination of this evi-
dence, we are not left with the “definite

3. In Sea Lift, this court found that the defend-
ants had not purposefully availed themselves of
the protections and benefits of the forum. Un-
like the negotiations that occurred in this case,

393

and firm conviction that a mistake has been
committed.” Anderson v. City of Bessem-
er City, North Carolina, 470 U.S. 564, 578,
105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528
(1985).

Having found sufficient minimum con-
tacts with Florida, we turn next to whether
the exercise of personal jurisdiction over
the appellees would offend traditional no-
tions of fair play and substantial justice.
As the Supreme Court has noted, “[wJhen
minimum contacts have been established,
often the interests of the plaintiff and the
forum in the exercise of jurisdiction will
justify even the serious burdens placed on
the defendant.” Asahi Metal Industry
Co. v. Superior Court of California, Sola-
no County, 480 U.S. 102, 107 S.Ct. 1026,
1034, 94 L.Ed.2d 92, 105-06 (1987). Such
burdens are justified in this case.

Although the defendants would be com-
pelled to travel to Florida to defend this
lawsuit, modern improvements in transpor-
tation and communication _ significantly
lessen this hardship. See World-Wide
Volkswagen v. Woodson, 444 U.S. 286,
292-98, 100 S.Ct. 559, 564, 62 L.Ed.2d 490,
498-99 (1980). More significant is the pur-
poseful journey to Florida to conduct im-
portant contract negotiations. This deliber-
ate choice placed the defendants on notice
that they were subject to suit in Florida.
Harmon, Geis and Clark Electric could
have acted differently had they wanted to
alleviate that risk. Jd. at 297, 100 S.Ct. at
567, 62 L.Ed.2d at 501. Finally, because
Williams Electric is a Florida corporation,
the appellees cannot maintain that the fo-
rum state does not have significant inter-
ests in this dispute. See Asahi, 480 U.S.
—, 107 S.Ct. at 1084, 94 L.Hd.2d at 106.
In sum, Harmon, Geis and Clark Electric
have failed to ‘present a compelling case
that the presence of some other considera-
tions would render jurisdiction unreason-
able” given the existence of minimum con-
tacts. Burger King v. Rudzewicz, 471

the meeting that took place in the forum state in
Sea Lift involved a “boilerplate” contract that
was not negotiated. 792 F.2d at 993-94.

DUNKINS v. THIGPEN

395

Cite as 854 F.2d 394 (11th Cir. 1988)

with rape and murder and sentenced to
death, filed habeas petition. The United
States District Court for the Northern Dis-
trict of Alabama, No. 86-G-2264-S, J. Foy
Guin, Jr., J., denied petition, and petitioner
appealed. The Court of Appeals, Vance,
Cireuit Judge, on petition for rehearing,
held that: (1) admission of confession made
after break in custody did not violate Fifth
Amendment despite prior invocation of
right to counsel; (2) petitioner’s waiver of
Miranda rights was voluntary, knowing,
and intelligent despite petitioner’s function-
ing at high mild range of mental retarda-
tion; and (8) petitioner was not denied ef-
fective assistance of counsel in state court.

Affirmed.

1. Criminal Law ¢412.2(4)
Police may resume questioning ac-
cused only if accused initiates contact with

police, once accused has requested counsel.
U.S.C.A. Const.Amend. 5.

2. Criminal Law ¢=412.2(5)

Any statements made by accused are
inadmissible unless they are product of
knowing and voluntary waiver of Miranda
rights, even if accused has initiated contact
with police after requesting counsel. U.S.
C.A. Const.Amend. 5.

3. Criminal Law ¢412.2(4)

Break in custody of accused after invo-
cation of Fifth Amendment right to coun-
sel, so that accused has reasonable oppor-
tunity to contact counsel, ends need for
excluding any subsequent statement of ac-
cused. U.S.C.A. Const.Amend. 5.

4. Criminal Law €517.2(1)

Admission of accused’s confession,
made after accused stated he wished to see
attorney, his mother or somebody, did not
violate accused’s Fifth Amendment right to
counsel, where accused was not continually
in custody between time of his assertion of
right to counsel and his confession; ac-
cused’s release from his initial custody pro-
vided him with substantial opportunity to
speak with those he wished to consult.
U.S.C.A. Const.Amend. 5.

5. Criminal Law ¢°412.2(5)

Mental illness was factor to be con-
sidered by trial court when ruling on validi-
ty of waiver of Miranda rights. U.S.C.A.
Const.Amend. 5.

6. Constitutional Law @43(1)

Mental retardation does not by itself
prevent defendant from voluntarily waiv-
ing his constitutional rights.

7, Criminal Law ¢=412.2(5)

Accused’s waiver of his Miranda
rights was not unknowing, unintelligent, or
involuntary as result of accused’s being
determined to function at high mild range
of mental retardation. U.S.C.A. Const.
Amend. 5.

8. Criminal Law ¢°641.13(2, 7)

Habeas petitioner was not denied ef-
fective assistance of counsel at trial level
or on direct appeal in state court; counsel
performed admirably in formulating and
pursuing petitioner’s defense strategy at
trial and on appeal. U.S.C.A. Const.
Amend. 6.

9. Habeas Corpus ¢90.2(3)

Habeas petitioner’s failure to identify
any particular need for another hearing
except to make sure that district court ap-
preciated magnitude of ineffective assist-
ance of counsel issue was not enough to
meet petitioner’s burden of establishing
need for evidentiary hearing on habeas pe-
tition, where state court conducted eviden-
tiary hearing which included ineffective as-
sistance claim. U.S.C.A. Const.Amend. 6.

John ©. Falkenberry, Falkenberry &
Whatley, North Birmingham, Ala., for peti-
tioner-appellant.

Ed Carnes, Asst. Atty. Gen., Montgom-
ery, Ala., for respondents-appellees.

Appeal from the United States District
Court for the Northern District of Ala-
bama.

Petition for Rehearing and Suggestion

for Rehearing In Banc

Before HILL, FAY and VANCE,
Circuit Judges.

396

VANCE, Circuit Judge:

On petition for rehearing, the court with-
draws its previous opinion dated May 27,
1988, and substitutes the following opinion.
The petition for rehearing is otherwise DE-
NIED and no member of this panel nor
other judge in regular active service on the
court having requested that the court be
polled on rehearing in banc, the suggestion
for in banc consideration is DENIED.

I.

On May 27, 1980 two sheriff’s deputies
arrested petitioner and transported him
along with a co-worker to the Jefferson
County Courthouse. Petitioner was a sus-
pect in the rape and murder of Lynn
McCurry.'! After the deputies read peti-
tioner his rights, they began to interrogate
him. After a few questions, petitioner
stated: “Before I talk anymore now, I
would like to talk to my lawyer or either
my mama or somebody....” After this
statement, the deputies asked a few more
questions? and arranged a lineup. The
police then returned petitioner and his co-
worker to their place of employment. At
some point during the day, petitioner
agreed to take a polygraph test.®

The next morning, Sergeant House
picked up petitioner at work and brought
him to the Sheriff’s office for the poly-
graph test. After the test Dunkins was
returned to his job. Later that day House
brought petitioner back for more question-
ing. An hour or so later petitioner signed
a waiver of his rights and confessed his
complicity in the crime.

A Jefferson County Circuit Court jury
convicted Dunkins and sentenced him to
death. After unsuccessfully challenging
his conviction and sentence on direct appeal
and on collateral attack in the Alabama

1. The facts and the procedural history of the
case are set out in Dunkins v. State, 437 So.2d
1349, 1351-52 (Ala.Crim.App.), aff'd Ex Parte
Dunkins, 437 So.2d 1356 (Ala.1983), cert. denied,
465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724
(1984), and Dunkins v. State, 489 So.2d 603,
604-05 (Ala.Crim.App.1985).

2. Respondent characterizes these questions as
“personal data questions.” Petitioner alleges

854 FEDERAL REPORTER, 2d SERIES

courts, petitioner filed a habeas petition in
the district court. The district court denied
the petition, and Dunkins brought this ap-
peal.

II.
A.

Petitioner contends that the admission’ of
the May 28 confession violated his fifth
amendment right to counsel under Mi-
randa v. Arizona, 384 U.S. 486, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and Edwards
v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981). Petitioner argues that
under Miranda his expression of desire to
speak with an attorney precluded any fur-
ther questioning, and that under Edwards
he did not waive his right to have counsel
present by responding to further police ini-
tiated investigation.

[1,2] The Supreme Court has held that
once a defendant expresses a desire to deal
with the police only through counsel, the
authorities may not further interrogate the
defendant until “counsel has been made
available to him, unless the accused himself
initiates further communication, exchanges
or conversation with the police.” Ed-
wards, 451 U.S. at 484-85, 101 S.Ct. at
1885; See Arizona v. Roberson, — U.S.
—, 108 S.Ct. 2098, 2097, 100 L.Ed.2d 704
(1988); Connecticut v. Barrett, 479 U.S.
528, 107 S.Ct. 828, 832, 938 L.Ed.2d 920
(1987). Thus once a defendant has request-
ed counsel, Edwards permits the police to
resume questioning only if the defendant
initiates contact with police. See Oregon v.
Bradshaw, 462 U.S. 1039, 1048, 103 S.Ct.
2830, 2833, 77 L.Ed.2d 405 (1983); Ed-
wards, 451 U.S. at 485, 101 S.Ct. at 1885;
Collins v. Francis, 728 F.2d 1322, 1332
(11th Cir.), cert. denied, 469 U.S. 963, 105

that they were designed to connect petitioner to
the crime.

3. There is some confusion over who initiated
the idea of taking a polygraph test: petitioner,
petitioner’s co-worker or the sheriff's deputies.
The Alabama Court of Criminal Appeals, the
Alabama Supreme Court, and the district court
all describe petitioner's decision to take the test
differently.

398

and regardless of whether or not petitioner
initiated further discussion with the police,®
we hold that petitioner’s release from his
initial custody provided him with substan-
tial opportunity to speak with those he
wished to consult. The admission of his
subsequent confession therefore did not vi-
olate his constitutional rights under Ed-
wards.

B.

Petitioner also argues that his waiver of
his Miranda rights was not voluntary,
knowing and intelligent. Petitioner, citing
Hines v. State, 384 So.2d 1171 (Ala.Crim.
App.1980), contends that his confession
was neither voluntary nor knowing because
a psychological assessment performed af-
ter his arrest revealed that petitioner was
“functioning at the high mild range of men-
tal retardation.” Because of this condition,
petitioner argues that he could not have
waived his rights voluntarily and intelli-
gently.

[5] The Supreme Court has held that
the inquiry into whether a defendant has
waived his rights under Miranda voluntar-

ney present, then Edwards does not apply. See
Burbine, 106 S.Ct. at 1142 n. 1; Tinsley v. Purvis,
731 F.2d at 795 n. 4; see also Fare v. Michael C,,
442 US. 707, 724, 99 S.Ct. 2560, 2571, 61
L.Ed.2d 197 (1979) (request to speak with a
probation officer does not invoke defendant's
fifth amendment rights).

8. The Edwards requirement that the defendant
must initiate contact with the police creates the
issue of what kind of contact the defendant has
initiated. In Bradshaw the defendant, at the
suggestion of a police officer, agreed to take a
polygraph test, and then after the test confessed
his guilt. 462 U.S. at 1042, 103 S.Ct. at 2833. A
plurality of four justices found that by request-
ing a polygraph test and asking “well, what is
going to happen to me now,” the defendant
“evinced a willingness and a desire for a gener-
alized discussion about the investigation... .”
Id. at 1045-46, 103 S.Ct. at 2835; see United
States v. Obregon, 748 F.2d 1371, 1381 (10th
Cir.1984) (defendant’s question to police inquir-
ing what would happen to him if he talked
initiated contact under Edwards ); see also Wy-
rick, 459 U.S. at 47, 103 S.Ct. at 396 (by request-
ing a polygraph examination, defendant initi-
ated interrogation about the crime of which he
was suspected). The three dissenting justices
disagreed that the polygraph test request initi-
ated a general conversation about the crime.

854 FEDERAL REPORTER, 2d SERIES

ily, knowingly and intelligently has two
distinct dimensions:

First the relinquishment of the right
must have been voluntary in the sense
that it was the product of a free and
deliberate’ choice rather than intimi-
dation, coercion or deception. Second,
the waiver must have been made with a
full awareness both of the nature of the
right being abandoned and the conse-
quences of the decision to abandon it.
Only if the “totality of the circumstances
surrounding the interrogation” reveal
both an uncoerced choice and the requi-
site level of comprehension may a court
properly conclude that the Miranda
rights have been waived.

Moran v. Burbine, 475 U.S. 412, 106 S.Ct.
1135, 1141, 89 L.Ed.2d 410 (1986); see Colo-
rado v. Spring, 479 U.S. 564, 107 S.Ct. 851,
857, 93 L.Ed.2d 954 (1987); Evans v.
McCotter, 790 F.2d 1232, 1288 (5th Cir.),
cert. denied, —- U.S. ——, 107 S.Ct. 327,
93 L.Ed.2d 300 (1986); United States v.
McClure, 786 F.2d 1286, 1288-90 (5th Cir.
1986). Thus “a valid waiver of Miranda
rights must not only be voluntary; it must

Bradshaw, 462 U.S. at 1055-56, 103 S.Ct. at 2840
(Marshall, J., dissenting) (“If respondent’s ques-
tion had been posed by Jean-Paul Sartre before
a class of philosophy students, it might well
have evinced a desire for a ‘generalized’ discus-
sion.”)

Federal courts have had some difficulty deter-
mining when defendants “evince a willingness
and a desire for a generalized discussion” under
the initiation prong of the Edwards analysis.
See Lamp v. Farrier, 763 F.2d 994, 997-98 (8th
Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 534,
88 L.Ed.2d 465 (1985). This is particularly true
when the case involves statements connected
with the administration of a polygraph test.
Compare United States v. Nordling, 804 F.2d
1466, 1471 (9th Cir.1986) (no need to readminis-
ter Miranda rights before questioning defendant
about the results of a polygraph test) and Bar-
rera v. Young, 794 F.2d 1264, 1265 (7th Cir.
1986) (waiver and consent to take a polygraph
test allows prosecution to use as evidence any
post-examination statements) with Rothgeb v.
United States, 789 F.2d 647, 651 (8th Cir.1986)
(evidence of defendant’s demeanor during poly-
graph questioning is admissible even though
results and evidence of a refusal to take the test
may not be) and United States v. Gillyard, 726
F.2d 1426, 1429 (9th Cir.1984) (Wyrick does not
establish a per se rule that Miranda warnings
are not required after a polygraph test).

&

~~
‘

2 Electric Jolts in Alaba

ENCE 1 PUBIC GIICE

~-
- oe

|
|
|
|

ema 1s TEE
attr

Special to The New York Times
ATLANTA, July 14 — In a grisly fi-
nale to a troubled legal journey, Ala-,
bama prison officials had to us a ig
ond jolt of electricity today to execute a,
mildly retarded murderer after the
first charge failedtokillhim. | | |
Alabama officials said improper
cable connections were to bldmie for
the fact that the execution of Horace
Franklin Dunkins Jr. took 19 mihutes.
Mr. Dunkins, who was convicted of
the 1980 rape and murder of a woman
from Warrior, Ala., became the first
retarded murderer to be executed
since the Supremé Court said last
month that the Constitution didnot bat
such executions. i |
Mr. Dunkins, 28 years old, Was exe-
cuted at Atmore, Ala., after the Su-
preme Court refused late Thursday to
block his execution. The Court |voted 7
to 2, with Justices William J; Brennan
and Thurgood Marshall dissenting. ||

Stay for Georga Murdere i
Court

In Georgia, the State Supreme Cot
issued a temporary stay of execution
Wednesday for.Son H. Fleming)’ who
has also been found to be mildly retard-;
ed. He was convicted of: mur: ring a)
rural Georgia police chief in 1976, |

In ruling June 26 that the Co;
tion allows States to execute mentally
retarded murderers, the United States
Supreme Court said juries

4 ByPETER met | |

£

! | |
‘Tjust hope that |
he wasnot |
‘conscious.’ _

DAG

'| much worse.”’

quired to consider evidence of

tion before imposing a death sentence,

Officials said the first throw of the
electrical switch at 12:08 this morning
failed to kill Mr, Dunkins. Officials
reconnected the cables as Mr. Dunkins
Sat, apparently unconscious, strapped
to the electric chair, his face covered

by a black veil. At 12:17, the switch was |

thrown second time and 10 minutes
later, he was declared dead. * |

| Alabama officials said human prror
Was the cause Oftheproblem. =

YT regret very very much what hap-
pened,”’ the Alabama Prison Commis-
sioner, Morris Thigpen, said at a news
confctence after the execution. ‘It was

‘| human error. 1 just hope that he was
_|| not.conscious and did not suffer.” |

Critics said it was a ghoulish finale to

a case that raised troubling questions
aldut executing thé retarded. oh ae
4 i ‘Brutal and Unjustifiable’ aint
It was awful)? said Mr.“Dunkins’s
lawyer, Stephen’ D, Ellis. ‘What hap-
pened was brutal’ and unjustifiable ii
and of itself. That’ it followed a pros
t

miscarriage of justice made it th

| Mr. Dunkins and an accomplice were ||

Senate Move on Flag

—
|

Is Scheduled for Fall

WASHINGTON, July 14 (AP) — The
Senate will act this fall on both  consti-
tutional amendment and a lesé sSweep-
ing statute to overcome last month’s
Supreme Court ruling that alléws fla
burning, Senator George J. Mitchell
said today. |

The majority leader’s announcement
represented a compromise between
those seeking quick action onjamend-
ing the Constitution and thosd urging
caution, especially if a statutejwill ac-
complish the goal. | rit

Mr. Mitchell, a Maine D ‘ocrat,
said the compromise schedulé would
let the Senate approach the isshe '‘in a
serious, mature, deliberate way.”’ ||

Senator Bob Dole, Republican. of

Kansas, the minority leader, will jintro-

New

reat Ta. bs

duce the constitutional amendment
Supported by President Bush on Tues-
day. The Senator said Mr. Mitchell’s
agrecment insured that opponents of a

8 | Constitutional amendment would not be

ve to use the statute to scuttle further
action. ee | |

‘Under the bipartisan agreement, the
Senate Judiciary’ Committee would
hold hearings and then report both ap-
proaches to the full Senate by Sept. 22.

‘The House ‘constitutional law sub-
committee has begun hearings. The
full Youse could act on a statute before
thé August Congressional recess. Sup-
porters of a statute hope that passions
fori’ 3 constitutional amendment cool
after the recess. | |

| i '

5
ae |

ork

convicted
of a 26-year ! four. She W
raped and thpn stabbed 66 times
tied to a trpe. The accom lick
givenia liféséntence)”) | |
_ Mr, Dunkihs’s lawyers ‘argued

said such eVitience would have beenies-

‘sential for) @valuating his culpability, t

and they afgued that Mr.’ Dui
waived his right to a lawyer bef or
interrogation by the policn wt out,
understanding 4 egal rights.) | st)

A juror whb
presented | a
would not ha
tence if shejhad |
kins’s retardation. |

Pera F
| Alaban

rad
nown |
ae

ental in sat
termed ménfally;'

his 1.Q; of 69,{at thi

dation, ‘m hir

actionss }2h\} | 2
“Tf you’ rb Boing t

alty; if you

this, what dolyou h

trial and judicial review. © 5 | |) i)
“This was] an indigent, mentally re-
tarded mah,}’ he! said. ‘There was/ab-
solutely no jnterest in protecting’ his
rights or m&king sure his conviction
and death|séntence were fair, and | in
this case they were hot.) )) 8)
Dr: George S. Bayolt, 8 proteseoh of
psychology at the University of’ orth
Carolina, WHo testified at an pepeal
hearing as'ah expett witness called by

Mr. Dunkins|s lawyers, said the courts
and legal pfofessidn had hot yet iad:
dressed the fissues of how retardation
affects a son’s ability to reason, to
understand moral issues, to make deci-

sions and /tqd protect their, own legal
rights. Exparts estimate that 10 per-
cent or morg of the prisoners on eath
row may bé mentally retarded. | *)))):
“We're lop a slippery slope! fh Ww
where theb@ people are going td):
killed all ovpr the country,” hé
“This thing if going to get a lot hatte
| i hid ea | i /
| i] Hele | aly
fad UE A BS

|

jag hever | |
given evidente of his retardation: They | '

3

SATURDAY, JULY 15, 1989

en Le


402

2. Habeas Corpus ¢113(18)

Remand of district court’s denial of
habeas corpus petition filed by escaped Ala-
bama prisoner who had committed another
crime and was imprisoned in Florida was
required to determine whether Alabama
had lodged detainer warrant after escape
to satisfy ‘‘custody” requirement to provide
district court with subject matter jurisdic-
tion over habeas petition. 28 U.S.C.A.
§ 2254(a).

3. Habeas Corpus ¢45.3(1.30)

Prisoner who escaped from Alabama
prison and who was subsequently convicted
of separate crime and incarcerated in Flor-
ida was entitled to bring habeas corpus
petition in Alabama challenging that con-
viction on ground of ineffective assistance
of counsel in event it was determined that
Alabama district court had subject matter
jurisdiction over cause; claim of ineffective
assistance was not reviewable on direct
appeal,and therefore was not waived when
priser escaped. U.S.C.A. Const.Amend.
6.

4, Habeas Corpus ¢45.3(3)

Prisoner was not required to demon-
strate cause and prejudice before district
court could hear his ineffective assistance
of counsel claim in habeas corpus petition;
state court did not rely on procedural de-
fect in denying prisoner’s coram nobis peti-
tion. U.S.C.A. Const.Amend. 6.

Fred B. Stacey, Jr., Crestview, Fla., pro
se.

Peter F. Burns, Mobile, Ala., for Fred B.
Stacey, Jr.

Don Siegelman, Atty. Gen., Jane L. Bran-
nan, Alice Wilhelm, Asst. Attys. Gen.,
Montgomery, Ala., for respondent-appellee.

Appeal from the United States District
Court for the Southern District of Ala-
bama.

* See Rule 34-2(b), Rules of the U.S. Court of
Appeals for the Eleventh Circuit.

854 FEDERAL REPORTER, 2d SERIES

Before KRAVITCH, Circuit Judge,
and HENDERSON * and HENLEY”,
Senior Circuit Judges.

PER CURIAM:

3

In 1975, Fred Stacey was convicted of
robbery in Alabama and sentenced to 30
years imprisonment. He did not appeal his
conviction. After serving approximately
one year of his term, Stacey escaped from
prison and fled to Florida, where he was
again convicted of robbery and sentenced
to 104 years imprisonment. In October of
1985, while imprisoned in Florida, Stacey
filed a petition for a writ of error coram
nobis with the Circuit Court of Escambia
County, Alabama, alleging ineffective as-
sistance of counsel at trial. On the state’s
motion and without a hearing, the court
denied the petition, noting that it had
“carefully considered” the grounds raised
by petitioner. The Alabama Court of Crim-
inal Appeals affirmed the dismissal without
opinion.

In June of 1986, Stacey filed a petition
for federal habeas corpus relief in the
Southern District of Alabama, again rais-
ing a claim of ineffective assistance of
counsel. The state conceded in its answer
to the petition that “Stacey has exhausted
state remedies and is properly before this
court.” Nevertheless, upon the magis-
trate’s recommendation, the district court
held that under Hall v. Alabama, 700 F.2d
1333 (11th Cir.), cert. denied, 464 U.S. 859,
104 S.Ct. 188, 78 L.Ed.2d 163 (1988), Sta-
cey’s escape from Alabama custody pre-
cluded him from exhausting state remedies
and therefore barred federal habeas re-
view. Accordingly, the court dismissed
Stacey’s habeas petition without an eviden-
tiary hearing and this appeal followed.

II.

A.

[1] Although not raised below, there is
an issue as to whether the district court

** Honorable J. Smith Henley, Senior U.S. Circuit
Judge for the Eighth Circuit, sitting by designa-
tion.


BIUIOF TED ‘pueyyeo.

SS4WAs De

Cable connections blamed
‘in botched execution ©

Friday

July 14, 1989

Sunny, high 95, low 50
Thursday’s smog level: 64 (moderate)
Today’s smog forecast: moderate
Complete: weather report; page 20A

Cuban military hero,
3 others executed

35 cents

= Peter App ae
ti The New York Times: eae

ATLANTA: — In a: grisly: fi- ~
nale to a troubled legal journey,

3 _. Alabama prison.officials-had to

uS€ 4 second. joit_of eiectricity
. yesterday to put to death a mild-
ly retarded murderer after the
_ first charge failed to kill him.
_ Alabama officials said impro-

+ per cable connections were to -

blame for the fact that the exe-
.. Cution of Horace Franklin Dun-
'_ kins Jr. took 19 minutes.
Dunkins, who was convicted of
the 1980 rape and murder of a
_ woman from Warrior, Ala., be-
came the first retarded murder-
_ er to be executed since the Su-
_ preme Court said last month the
_. Constitution did not bar such ex:
> ecutions.
Dunkins, 28, was executed at

a _.:-Atmore,. -Ala., after-the-Supreme-->;What happened,’”. the Alabama: --
: n—commissioner—Morris—

_ block his execution. The court
+ voted 7-2 with Justices William
: J. Brennan and Thurgood Mar-
: Shail dissenting. © 2.
In Georgia, the state Seresase:
‘Court issued a-temporary stay of

 “agnosed as being

Sine BAR Be

aim. ag a rural Caargie Fe police hie li
ota 1976. ° =
- Inruling June 26. that the Con-

‘stitution allows states to execute

—~-mentally-retarded_murderers, —

= “the TJ, = Supreme Court sai said that

juries were required to consider
evidence of retardation before
imposing a death sentence.
Officials said the first throw
Of the electrical switch failed to
kill Dunkins. Officials recon-
nected the cables as Dunkins sat,
apparently ~ unconscious,
strapped to the electric chair.
At 12:17, the switch was
thrown a second time and’ 10
minutes later, he was -deciared

1a See RETEST

Alabama officials said human

error was the cause of the ee ht

‘Tem, © =~ = =o
 “T regret very’ “very much

~ === MEXICOCITY —A-war hero who

‘ fought with Fidel Castro in Cuba’s
-= revolution and three other drug
~~Smugglers were executed Thursday,
the official Cuban news agency said.

~—-~=The drug ring-was responsible for

smuggling cocaine and mari juana to
— the United States, Cuban government
prosecutors said during recent trials.
Maj. Gen. Arnaido Ochoa, Coi.
Antonio de la Guardia Font, Maj.
=“Amado Padron and Capt. Jorge
Martinez were lined up against a wall
and shot by a firing squad at dawn
Thursday, according to a Cuban news
-agency report monitored in Mexico.
“Ochoa was a trusted aide to President
-Castro, commanding Cuban forces in
Ethiopia and Angola and heading a
~——€uban- canine sotisies te Nicaragua.

: aeons 4 oe a

Retarded killer « executed
-mildly-retarded-

Thigpen, said. “It was human er-
Fore. T-just-hope- that. he-was. not...

~ conscious and did not’suffer.”” ~ = tf
sie _Dunkins and an accomplice ~ [tk

,,were convicted of the 1980 rape~

soem

and murder of.a 26-year-old ~

-—mother- of four: She- was. taped"
: execution. Wednesday: for Son H: and then stab s while =f

Ss Se

= —down last-minute ae rere

aaemeetaneeen
or <a Ie
t Bess @ + as x - Sees
wa

“electric chair any today for the 1980
%=Tape-murder ofa woman after the
‘Supreme Court twice turned ~

= -=Horace Franklin Dunkins Jr., ae

) p.m. away: PDT).

Sie was declared. [dead at 12:25 a. m. ay i 3

> semen ae

July 114, 1989 +- 19A

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San Francisco Qhronicte

Friday, July 14, 1989

NATIONAL NEWS

=, 2

a

Killer Dies in Botched Execution

Associated Press

RN A Ce — NR

— se A

A retarded man, convicted
of raping and killing a woman
in 1980, died early today in Ala-

-.bama’s electric chair in a botch-

ed execution alter oricrais rai-
ed to connect the chair proper-
ly.

Horace Franklin Dunkins Jr.,
28, was strapped into the chair at
Holman Prison and the switch was
first thrown at 12:08 a.m., but the

not conscious and did not suffer.”

——Dunkins-had-beer-eondemrned eat the_death penalty can be_ad-

for raping and murdering Lynn
McCurry, a 26-year-ola mother of
four who was found stabbed 66
times and bound to a tree behind

her- home:--A~ second tefendant

TRoeaw sts BA PF ein mi an ct=-+ ce a 2
Prawn i. 11airis, preauc guilty and

is serving a life sentence.

According to court documents,
Dunkins had an IQ of a9, The U.S.

Supreme Court ruled two weeks ago

ministered. to retarded killers as
long as the sentencing juries or

judges have considered the retarda- -

tion as a mitigating factor.

~~~& federal judge refused-Wed-
nesday io Dick ihe execution, rui-
ing that the trial judge had consid-
ered Dunkins’ [Q. An appeilate
court and the Supreme Court re-
jected appeals yesterday.

a

c

EXECUTION BOTCHED: In At-
more, Ala., a state prisons official
said Friday that although it took
two tries to execute a convicted
killer in the electric chair, the first
jolt of electricity rendered hirn un-
conscious. The botched execution
of Horace Franklin Dunkins early
Friday — with the first failed try
apparently caused by a faulty ca-
ble hookup — is likely to refuel
arguments by death penalty oppo-
nents that the electric chair is
“cruel and unusual punishment.” A
1983 execution that took three jolts

oto

of electricity led to a federal court
challenge. Dunkins, 28, a mildly
retarded man, was executed for
the. 1980 slaying of a woman who
was raped and stabbed 66 times

wrhila tad tn a tras
+3 saeaw vVaewsse Ow

“~ weer. {

20A Saturday, July 15,1989 # San Jose Mercury News

ie ALABAMA EXECUTION: A
--|~ mildly retarded man was exe-

| National News| |

current only knocked Dunkins un- ? ~ oe ee x
conscious,
Two doctors determined that
! his heartbeat was still strong, state
j Prison Commissioner Morris Thig- paar re = tes ri
: pen said. “They’re torturing him.” Svacition in Alabama
Dunkins’ attorney said during the epeRmanaRR CT tor
medical exam ATMORE, Ala. — A mildly retard- th
i ; ed kilier died in Alabama’s electric im
At 12:17 a.m. the switch was chair early Friday after prison offi-
; _thrown asecond time. At 12:25 a.m. cials Botched hooking up the chair’s
- . -—Dunkins-was declared dead:—~— sii s-waniocnonsnomanosinpnloebigitin iam electrical connections f by-
; Horace Franklin Dunkins Jr., 28, 4
Thigpen said the jacks connect- was ceclared-dead at 12:27 a.m. af- ;
-ing electricity tothe chair had been . -ter the second attempt toelectrocute _|
]

- him for a 1980 rape-murder. The ex-
ecution came after the U.S. Supreme

“Court turned down two appeals.
~~ Bee news services

reversed and did not deliver
enough voltage to kill Dunkins on

OR cio

LGR CEI TEs Fes

ee oases acae

ee = 4 oe |

* *% Thes Sactamento Bee Final + Friday, July 14,1989 _A7

National

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+-

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Fes mintind Socs, apices

turned down—last-minute ap-
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=20A Friday,

July 14,1989 @ San Jose Mercury News