Ex parte Colby

Ex parte Colby
1911 OK CR 284
124 P. 635
6 Okl.Cr. 187
Case Number: No. 1490
Decided: 10/02/1911
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

BAIL Right to Murder Mutual Combat.

Application for bail by J.H. Colby and Wade Stovall. Bail denied.

Dorset Carter and J.W. Hocker, for petitioners.

Ben Franklin, County Attorney, J.B. Thompson, and A.W. Wadlington, for the State.

The following is a statement of the material parts of the testimony introduced upon the hearing:

Mrs. J.L. Little testified that she was acquainted with both of the defendants; that about 10 o'clock on Friday morning, before the homicide, she met the defendants crossing the South Canadian river; that they were riding in a one-horse buggy, and were driving from Lexington toward Purcell.

Mr. Will Partridge testified that on the day before the homicide he saw the two defendants in the city of Purcell about three o'clock in the afternoon; that he heard the defendant Colby ask a clerk in a hardware store for cartridges for a shotgun loaded with BB shot; that BB shot are between buck shot and duck shot; that such shot are ordinarily used for large game.

James Crawford testified that the day before the shooting, witness saw the defendant Colby and a man whom witness took

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to be the defendant Stovall, near the depot of the O.C. railroad in Purcell, and Dr. Colby was armed with a gun; that it looked like a shotgun.

J.M. Felty testified that on the day before the homicide he saw both of the defendants at the O.C. depot in the town of Purcell; that the defendant Stovall had what looked like a shotgun; that defendants got off the train at Washington, about 8 miles from Purcell; that the defendants got off the train between 4 and 5 o'clock in the afternoon; that witness heard defendant Colby say, "There is going to be school, and professor is going to teach school." That the two defendants then got into a wagon owned by Mr. Ed Glasco, and drove in the direction of the old Washington schoolhouse.

J.C. Claunch testified that he saw the defendants Friday afternoon before the homicide; that they got off the train at Washington, and got into a wagon owned by Mr. Glasco; that the witness saw the parties have what he took to be a box of cartridges; that Dr. Colby introduced Stovall as Prof. Clark and said he was going to start school up there the next morning and for everybody to come, and said further "for us to tell everybody we saw to come"; that Dr. Colby had the wagon to stop in the town of Washington, and Dr. Colby got some staples.

J.H. Vincent testified that he saw both of the defendants on Saturday, the day of the homicide; that he saw the defendant Stovall at his house, which is right close to the old Washington schoolhouse, and is on the same lot, the houses being about 15 steps apart; that the witness left home that morning about 15 minutes after the sun rose; that when he left home Stovall was digging post holes; that the witness had seen the defendant Colby the afternoon before at the home of the witness; that the defendant Colby then introduced the defendant Stovall to the witness as Prof. Wade, and said that he was going to teach school; that defendant asked the witness to help him with the fence around the house of the witness and around the schoolhouse; that witness declined to help, telling the defendant that it would be likely to cause trouble, and witness did not want to

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get into any trouble; that defendants then had a shotgun with them; that defendants built a fence of hog wire on the east and south side of a lot upon which the house of the witness and the old Washington schoolhouse was situated; that prior to this, on the night of the 16th day of August, a fence had been built on the south and east side of the lot occupied by the home of the witness, and also occupied by the old Washington schoolhouse; that the fence was built there by Dr. Colby, the witness, and some other parties; that Dr. Colby had the fence built, claiming that he had a right to do so; that afterwards the fence was taken down by Mr. Foster, Mr. Jones, Mr. Irons, and Mr. Autry; that they put the wire in a coal house; that witness had lived in the four-room house on the same lot with the schoolhouse since the 15th day of February, 1911; that witness rented the house from Mr. Glasco; that afterwards the witness rented the house from defendant Colby; that the defendant Stovall stayed at the house of the witness the night before the homicide.

A.H. McKinney testified that he remembered the day upon which Mr. Autry and Mr. McClendon lost their lives; that witness saw the defendants that day at the old Washington schoolhouse; that defendant Stovall was building a fence, and that defendant Colby was present, telling Stovall what to do. "As I started off, the defendant Colby said something, and I stepped and asked him what he said. He replied that they were going to have Sunday school, and that the professor would teach." Witness had previously seen these parties on Friday evening working on this fence. George Foster, one of the school trustees, forbade them to build the fence.

Hiram Turner testified that on the morning of the homicide defendant Colby came to the home of the witness, and defendant said he wanted a pint of whisky. Witness replied that he didn't have any. Defendant told the witness that he, the defendant, was going to the schoolhouse to fence it.

G.S. Addison testified that he saw the defendants working on the fence at the Washington schoolhouse late Friday evening; that the fence was finished by one o'clock that night; that

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George Foster came there and forbade the parties building the fence; that the defendant Colby said he would build it and ordered Foster off the place; that defendant and Foster had a quarrel; that Foster left, saying that he would tear the fence down next day; that defendant Colby replied, "Just tear it down; that is what I want you to do." That Foster went away.

Bob Stone testified that he assisted in building the fence around the old Washington schoolhouse at the request of the defendant Colby; that defendant Colby was there when the fence was built; that defendant Colby was armed with a Winchester shotgun, and told the defendant Stovall to shoot the first man who put his hands on the fence to tear it down; that the defendant Colby showed Stovall the gun and how to work it and how to load it, and then gave the gun to Stovall; that George Foster came to where the fence was being built that night and had some trouble with defendant Colby.

Dr. J.W. Childs testified that Mr. Autry and Mr. McClendon were dead; that Autry died from the effects of a gunshot wound in the breast on the left side of the heart; that Mr. McClendon was pretty badly wounded; that one shot entered his eye and several entered the back of his head; that when the witness last saw Mr. McClendon, McClendon was in a dying condition.

Frank Ferris testified that he was at the Washington schoolhouse about two o'clock in the afternoon on the day of the homicide; that he found the defendant Colby there wounded; that defendant Stovall was also there; that witness is the sheriff of McClain county; that witness found two shotguns and a six-shooter at the place where he found the defendants.

G.W. Whittle testified that Autry and McClendon were killed on Saturday; that at the time of the killing witness was near the schoolhouse, out in a lane; that he walked over to the schoolhouse and met Mr. Autry, Mr. McClendon, and Mr. Powell, the trustees of the school; that they were all on foot; that Autry had a double-barrel shotgun; that Mr. Yoder and Mr. Powell were also armed; that these parties were going east, toward

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the schoolhouse; that these parties were all in their shirt sleeves; that they went in the school yard on the southwest corner of the school yard; that a hog wire fence was around the school yard and one of the top wires was bent back and the parties stepped over the fence there; that the witness passed by this place going east, and that his attention was attracted by a gunshot, which in his opinion came from the house; that immediately witness looked around and saw the defendant Colby at a window in the house, with a gun in his hands, looking out of the window. Witness heard some shooting, but he could not say how many shots were fired; that it was just like a battle; that witness saw Mr. McClendon he was standing at a wagon on the southwest side of the house; witness also saw the defendant Stovall; that Stovall was in the northeast room; that someone fired from the window; that the shot came from the house; that witness was unarmed and had not taken any part in the trouble; that witness returned to the place of the shooting some 2 or 3 hours after the shooting was over and went into the north room of the house and saw there a single-barrel shotgun, a double-barrel shotgun, and a revolver; that witness went out and found there Autry and McClendon; that McClendon was unconscious; that witness assisted in taking him home and dressed his wounds after he died.

John Jones testified that he was acquainted with Mr. Autry; that he is now dead; that he died from the effects of a gunshot wound on the left side of the breast near the heart; that there were 54 wounds on him.

L.C. Graves testified that on the evening before the homicide he passed Washington schoolhouse; that there is a residence on the same lot with the schoolhouse; that as he passed the schoolhouse he heard a voice which he took to be Colby's, giving instructions as to how to hold a gun; that something was said about a cartridge hanging; that witness heard what he took to be the rattling of a gun.

Dr. F.L. Parker testified that about 5 o'clock on the afternoon of the shooting, witness saw Mr. McClendon dressed his

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wounds; that he was then dead; that he probably died from the effects of these wounds.

Luther Powell testified that he was present between 7 and 10 o'clock on Saturday morning at the old Washington schoolhouse when Autry and McClendon lost their lives; that witness and a number of other persons went up to the schoolhouse when Autry and McClendon lost their lives; that witness and those with him were about 40 yards from the schoolhouse. Witness saw defendants break and run toward Vincent's house. Mr. McClendon hollered to Dr. Colby and said, "We want to talk to you," but defendants did not stop. Witness next saw Dr. Colby after he entered Vincent's house; defendant was at the window, with a shotgun in his hands, and that he fired the shotgun in the direction of witness and the parties who were with him; that this was the first shot fired; that it was fired by Dr. Colby; that witness went behind a crib and did not see the other shots, but he heard them.

W.W. Yoder testified that he was treasurer and a member of the board of directors of the Washington school district; that between 8 and 9 o'clock on the morning of the homicide, witness went to the Washington schoolhouse; that the defendants were there; that the defendant Colby was sitting on top of a desk in the schoolhouse, and defendant Stovall was at the door of the schoolhouse; that the witness did not say anything to the defendants, and they said nothing to him; that witness went about one and one-half miles beyond the schoolhouse and there met Mr. Autry, Alvey Autry, Mr. Irons, Bud Powell, George Foster, and some other parties; that they all returned to the schoolhouse; that there was a dwelling house occupied by Mr. Vincent on the same lot with the schoolhouse; that when the parties with witness were within 25 or 30 yards from the west corner of the acre of land upon which the schoolhouse and the house occupied by Mr. Vincent are situated, they saw the defendants; Dr. Colby was on the outside of the fence; that when the witness and those with him stepped over a gap on the land occupied by the schoolhouse and Vincent's residence, the defendant Colby leaped over the

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fence, and that he and Stovall then ran into Vincent's house; that someone hollered to Dr. Colby to stop, and told him that he wanted to talk to him; that this was either Mr. McClendon or Mr. Autry; that defendants kept on running toward the dwelling house; that the witness and the parties with him were going toward the schoolhouse; that witness next saw the defendant Colby at the west window of the Vincent residence; that Dr. Colby immediately fired a shot with a shotgun; that the witness both heard the shot and saw Dr. Colby fire it; that this was the first shot fired in the difficulty; that Dr. Colby shot Mr. Autry in the leg; that the witness entered the schoolhouse, and that after this a number of other shots were fired; that witness saw Alvey Autry shoot at the window from which Colby had fired the first shot; that witness does not know who fired the other shots; that he couldn't tell how many shots were fired; that after the shooting was over witness found Mr. Autry lying dead, and also saw Mr. McClendon, who was shot in the breast. That this all occurred in McClain county, state of Oklahoma.

Byron Glasco testified that on the afternoon prior to the homicide he saw the defendants get off of a caboose at Washington; that the defendants were armed with a Winchester shotgun; that they got into a wagon driven by witness; that when they got into the wagon Dr. Colby said that the professor was going to teach school at the schoolhouse in the morning; that the witness then drove the defendants into the town of Washington and from there to the schoolhouse; that the defendants got out of the wagon, and tied the mules to the schoolhouse, and built a fence around the schoolhouse and Vincent's house.

J.C. Irons testified that he was present at the Washington schoolhouse when Mr. McClendon and Mr. Autry were killed; that he went to the schoolhouse about 10 o'clock with a number of others; that there was a residence on this ground occupied by Mr. Vincent; that the parties with witness entered a gap, and entered the school yard; that they saw the defendant Colby standing on the outside of the fence; that when witness and the parties entered the school lot, defendants started to run into the house

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occupied by Mr. Vincent, and that either Mr. Autry or Mr. McClendon called to Colby to stop, and said they wanted to talk to him, but that Colby ran into the house; that Dr. Colby ran into the house and got a gun and shot Mr. Autry; that the witness saw the defendant fire the shot at Autry, and saw Colby fire the gun from a window, and that he saw Autry drop down; that afterwards a number of shots were fired; that the witness was also fired at from the room with a pistol; that witness saw defendant Stovall shoot Mr. McClendon; that the defendant Stovall was in the south room of the house; that McClendon and Autry both died from the effect of the shots they received from the defendants; that the Washington schoolhouse was also used for a church; that a meeting was to begin there the fourth Sunday in August; that the fence had been erected there Wednesday night before the third Sunday in August; that this fence was taken down; that after the fence was taken down on Thursday the community were preparing to erect an arbor to hold a meeting in, and had placed poles on the ground with which to construct the arbor.

E.L. Powell testified that he was present when Autry and McClendon were killed by the defendants at the Washington schoolhouse; that the witness and the parties who went to the schoolhouse on the morning of the homicide got there between 9 and 10 o'clock. The witness further said:

"We met and decided to go up there; we heard that Dr. Colby was going to be there, and we decided that we would go there and demand our rights to the schoolhouse, and without any trouble; and we decided to let the school board go in the lead and demand the rights, to get Dr. Colby to take the fence down without any trouble, and so we put the school board in the lead and went on up there. Q. State to the court the way the school board was dressed. A. In their shirt sleeves. Q. Unarmed? A. Yes, sir; unarmed. Q. In going to take the schoolhouse, did you see anybody on the schoolground? A. Yes, sir. Q. Who did you see there? A. We saw Dr. Colby and that man (pointing to Mr. Stovall), but they were standing out at the fence. Q. What part of the fence? A. In the corner behind one of the corner posts southeast of the schoolhouse. Q. Where was you with reference to the schoolground when you saw these parties? A.

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We were some little piece from the gap, southwest of where the gap was well, we was, I guess, 40 or 50 yards from the place where they were standing when they were talking. Q. What were they doing? A. They were standing there talking. Q. Were they working? A. No, sir. Q. How long did they stand there? A. Until the trustees stepped into the inside of the fence. Q. What did they do? A. He climbed over the fence. Q. What did he do? A. He ran to the dwelling house. Q. What did Mr. Stovall do? A. He ran after him. Q. Did you hear anything said? A. I heard Mr. Autry holler at him to `hold on there, Dr. Colby, we want to talk to you;' and some one else it was Mr. McClendon hollered the same I think he just hollered, `Dr. Colby, stop; I want to talk to you.' Q. Did they stop? A. No, sir; they kept going. Q. Did you see these parties or either of them make that run? A. Yes, sir. Q. Did they get out of your sight? A. Yes, sir. Q. What side did they run in? A. On the southeast corner; it is made in an X shape. Q. Did they get out of your sight? A. Yes, sir; in the west window in the west room in the house. Q. Now, where was you at the time? A. I was, I guess, about 12 or 15 feet from the corner where we came in. Q. Outside or inside? A. Inside by that time. Q. Do you know who else had come on the inside? A. Several of them; Mr. Autry, myself, Jake, one-half I guess, or more; I know Mr. Autry and Jake Yoder was, for they were close to me, but I couldn't say about the others. Q. What were you doing when you saw Dr. Colby in that west room? A. Going to the schoolhouse. Q. What way were you facing? A. Northeast. Q. How far were you from this room that Dr. Colby ran into? A. About 40 yards, I guess. Q. Was there any opening in the room to the west. A. No, sir; but the window. Q. In the west end of the room? A. The window was open. Q. The sash? A. Was raised up about half-way. Q. Now, when Dr. Colby came in there, what did he do? A. Why, he grabbed the gun and came to the window and shot. Q. What direction did he shoot? A. He shot out close to me, shot Mr. Autry. Mr. Autry was standing near me. Q. Had any shots been fired previous to that time? A. No, sir; there hadn't. Q. After that, did you see any other shots fired? A. Yes, sir; they were continued after that for some time. Q. Who was shooting? A. There was shooting from both sides. Q. Who did you see shoot? A. Mr. Autry. Q. When did he shoot? A. He shot after he was shot. Q. What direction did he shoot? A. Toward the house. Q. Did you see Dr. Colby shoot any more? A. Yes, sir; he shot again

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about the time Mr. Autry shot. Q. What direction that time? A. The same as before. Q. Did you see anybody else shoot there? A. I couldn't say that I saw the shots that were fired; they were fired every way. Two or three was fired, and I ran to the schoolhouse as soon as I could get there. Q. You remember seeing anybody shoot besides Dr. Colby and Mr. Autry? A. No, sir; there was so many I couldn't tell. Q. Did you have a weapon of any kind? A. Yes, sir. Q. What kind? A. A single-barrel shotgun. Q. Was it loaded? A. Yes, sir. Q. What kind of shot? A. Eight. Q. What kind is a number 8? A. A fine shot for birds. Q. Did you shoot your gun? A. No, sir; I didn't. Q. Did you try to? A. I tried one time. Q. At whom? A. Dr. Colby, after he shot by me. Q. Why didn't you shoot? A. Mr. Vincent's little girl ran between the house and me, and jumped up and down, and I didn't shoot because I couldn't have without shooting her."

George Foster testified that he was a member of the board of trustees of Washington school; that he was present at the time of the killing of Autry and McClendon by the defendants. He testified that the defendant Colby fired the first shot with a Winchester shotgun. His testimony was in all respects similar to that of previous witnesses.

Alvey Autry testified that he was present on the morning of the homicide, and his testimony was in all respects similar to that of preceding witnesses.

Hiram Turner testified that the defendant Colby was at home at his house the morning before the homicide and he said to the witness that they were going to have school in the house about 8:30, and that the defendant Stovall was to be the teacher and said come up.

Defendants placed Mrs. J.H. Vincent on the witness stand. She testified that the first shots were fired by the parties who came to the schoolhouse; that she saw the defendants Colby and Stovall; that they were coming toward the house when the first shots were fired and they had no weapons.

Ella McCulla testified that she lived just across the street from the Washington schoolhouse; that she heard a shot fired and when she went to the door she saw the defendants going

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toward the Vincent house; that the defendants at that time were unarmed; that she heard a number of shots fired.

FURMAN, P.J. As this case must be tried by a jury, and as we are satisfied that all of the material testimony has not been presented to us, we deem it best to refrain from discussing the evidence, further than to say that, as presented by the record before us, we do not believe the defendants are entitled to bail.

The testimony introduced, taking the most favorable view for the defendants, presents a case in which the defendants upon one side, and the trustees of Washington school district with some of the patrons of the school on the other side, armed with deadly weapons, voluntarily and willingly engaged in a mutual combat, having reason to believe that such conflict would result in death or serious bodily injury to some of the parties engaged therein. When death ensues from such a conflict, the killing is murder. See Boutcher v. State, 4 Okla. Cr. 576. There is no testimony in this record which either mitigates or justifies the homicide.

The writ of habeas corpus is therefore discharged, and defendants are remanded to the custody of the sheriff of McClain county to answer the charge of murder pending against them.