The Blue County Democrat
November 10, 1905
Arthur and McKinley Hensley, aged 13 and 11 respectively, had a preliminary hearing before Judge Parker yesterday. They are charged with the murder of Clay Schwartz, aged 11, while out hunting near Caddo Monday. The young defendants claim the gun went off accidentally and killed their young companion. However, they said nothing of the matter ‘til the body was discovered on Tuesday.
Arthur Hinsley v. United States.
This is a somewhat condensed version of a very lengthy report. I tried to only omit some “legal jargon” and some of the more repetitive details of the case. It’s still long, but worth reading.
Arthur Hinsley, was indicted in the United States court for the Central district, Indian Territory, sitting at Durant, which indictment was duly returned by the grand jury and filed in said court on the 15th day of November, 1905, wherein said Arthur was charged with having on the 6th day of November, 1905, within said district, committed the crime of murder, in the killing of Clarence Schwartz.
On the I7th day of November, 1905, the Arthur was duly arraigned and entered a plea of not guilty, and upon his motion this case was continued to the next term of said court.
On February 28th, 1906, he was found guilty of the crime of manslaughter, and on the same day filed in open court his motion for a new trial, which motion was by the court on the 3d day of March, 1906, overruled; and the court sentenced Arthur to imprisonment in the training school for boys at Boonville, in the state of Missouri, for the term of two years.
A writ of error was duly allowed to the United States Court of Appeals for the Indian Territory, sitting at South McAlester, and this case was pending in said Court of Appeals at the time of the organization of the state of Oklahoma, and was duly removed to the Supreme Court of the state of Oklahoma by virtue of the terms and provisions of the enabling act and the Constitution of the state of Oklahoma, and was, by the Supreme Court of this state, in pursuance of an act of the legislative assembly of the state of Oklahoma, entitled "An Act creating a Criminal Court of Appeals and defining the jurisdiction of said court," approved May 18, 1908 (Laws 1907-08, p. 291, c. 28), transferred to this court.
Arthur Hinsley, a boy of about 13 years, Clarence Schwartz, a boy of 12 years, and Arthur's brother, McKinley Hinsley, a boy of 10 years, were schoolmates, playmates, and friends, living near each other in the town of Caddo, I.T., for a considerable length of time before the killing occurred. These boys were in the habit of accompanying each other to and from school, and on hunting expeditions.
On the morning of the day that the killing occurred Arthur and Clarence were on their way to the public school in Caddo, and on their way planned a hunting trip, to take place after school of that day. They went from the school together at noon as usual, and during the noon hour Clarence called at the home of Arthur, and invited him to go to the hardware store, where they purchased a box of loaded shells (cartridges), and also stopped at a drug store nearby and bought a tablet, taking the shells to the home of Arthur and returning to school together in the afternoon. After school they went to the home of Clarence, where Clarence remained to do some chores for the evening, while the Arthur went to his home nearby. After waiting some time for Clarence, Arthur, with his little brother, McKinley, started to the hunting ground, stopping for a short time at the National Bank corner in Caddo.
In the meantime Clarence had called at the home of Arthur, but not finding him there he proceeded downtown to join Arthur for the hunt agreed upon. The three boys met at said bank corner, and started for the hunting ground in Ainsworth's pasture. Soon after starting they met another playmate, Edmond Franklin, whom Arthur invited to join them on the hunt, but he did not go. When they reached the tank in said pasture, they amused themselves for a time shooting birds.
Leaving the pasture for home, about sundown, they reached a point near the top of a hill, where the dog they had with them acted in a manner to indicate that he was about to locate a rabbit. Arthur, observing the dog's conduct, called to Clarence and Arthur's little brother to scatter out; that the dog would likely "jump a rabbit."
At this time Arthur, who had the only gun in the party, raised his gun to prepare to shoot the rabbit, and his thumb slipped off the hammer and the gun discharged, killing Clarence Schwartz, who stood a short distance from where Arthur's brother, McKinley, stood. The gun was loaded with shot, the load taking effect in the left side of Clarence, injuring his left arm to some extent, and killing him instantly. Arthur and his brother, after the discharge of the gun, went to the side of Clarence and found him fatally wounded, and soon thereafter left him and started for home, going as far as the pasture gate, stayed there a short time, and went back to the Clarence, and, leaving him a second time, went to their home. Arthur was sick all night after the killing, and was too ill to go to school next morning.
The boys did not report the killing to their parents, but, on the contrary, both denied knowing anything about it, and continued to deny all knowledge of the same until the second day after the killing, when both Arthur and his brother, McKinley, confessed their knowledge of the killing, and claimed that it was accidental, explaining the accident in detail. The boys made their confession to Town Marshall A. Pitt Braudrick, separate from one another, and at different places, but their explanations of the killing were identical, and were in strict accordance with their testimony at the trial.
About 1 o'clock of the day following the killing, Clarence's father, John Schwartz, in search of his son, called at the home of Arthur. Since he was at school, Mr. Schwartz, accompanied by Arthur’s father, went to the schoolhouse, where they found him, and he again denied all knowledge of the killing. He stated that he left Clarence in the pasture with some other boys, who had a target gun.
The two men invited Arthur to go to the pasture with them, and, reaching the pasture, Arthur pointed out a spot some distance from where the body was found as the place where he had left Clarence. Others joined in the search for Clarence, including two women, Bulah Black and Bulah McGuire, who soon after the searching party reached the pasture, found the body lying on the hillside, at the place where he was killed. An examination of the body revealed the fatal gunshot wound in the left side, and some abrasions of the skin on the left arm, and also found a circular abrasion of the skin about the size of a dime on his left hand.
Arthur, continuing to deny all knowledge of the killing, was taken to the city jail together with his brother, McKinley, Edmond Franklin, Avon Franklin, and Roy Fuller, where they remained all night. The next morning all the boys, except Arthur, were released from the prison, he remaining alone in prison from 9 o'clock until 11 o'clock in the morning, when he confessed his knowledge of the killing as aforesaid.
Ten witnesses were sworn and testified for the prosecution.
The first, Dr. E. T. Smith, described the wounds found upon the body of the Clarence, testifying that they were gunshot wounds, and fatal.
John Schwartz, father of the Clarence, testified in substance that his son, in company with other boys, left his home the evening of the day of the killing after school, and that he failed to return that night; that the next morning he instituted search for his son, and, going to the home of Arthur about 8 o'clock in the morning, found him in bed sick; that Arthur stated to him at this time that he left Clarence at or near the water tank in the Ainsworth pasture the evening before with some other boys who had a target gun; that Clarence started in the direction of a house nearby; that he saw nothing more of him after Arthur himself left the pasture, returning to his home. Witness stated that he went a second time to Arthur's home, this time about 1 o'clock of the same day, and found him not at home. Being told that he was at school, he, in company with Arthur's father, drove in a buggy to the school house, where they found him. When asked to go with them in search of Clarence, he complied, and all went to the pasture in question. When they reached the pasture, Arthur again stated that he had left the Clarence near the tank, pointing to the place where he had left him; the place pointed out being about a quarter of a mile distant from the place where the body of the Clarence was afterwards found.
At the time they were at the pasture and near the tank. Mrs. Bulah McGuire and Miss Bulah Black, who lived near said pasture, were also searching for the Clarence and found his body on the hillside some distance from where Arthur, in company with his father and Clarence's father, then were. They all proceeded to the body, and, reaching there, Arthur displayed no emotion at seeing the body of his playmate. Upon being accused by Mrs. McGuire with being responsible for the death of the Clarence, he again denied all knowledge of the killing, stating that a man might have shot him; that he did not fire a gun near where the body was found.
Bulah Black testified that she was in the searching party, in company with Bulah McGuire, and found the body of the Clarence upon the hill at a point in plain view of at least two houses nearby, and in view of several other houses; that, when she found the body, she immediately notified the father of Clarence, who was then in company with Arthur and his father and a Mr. Homer in said pasture nearby; that they all went to the place where the body was found; and that the accused, upon seeing the body displayed no emotion. This witness corroborates in all important respects the statements made at the scene of the killing as testified to by the father of Clarence. Bulah McGuire also testified to substantially the same facts.
A.P. Braudrick, the town marshal, testified, in substance, that he visited the place where the body of Clarence was found, which was within a quarter or half a mile from the corporate limits of Caddo, in the Ainsworth pasture, and described the position of the body as lying on his back with his head south, his left arm by his side, right arm stretched out at right angles with the body; that he found an empty shell of a number 12- gauge gun about 30 feet from the body; that Arthur was near him when he picked up the shell, saw him pick it up, but said nothing; that from an examination made by him he found the Clarence was shot in the left side, and also noticed a mark or ring on his left wrist, about the size of a dime or a little larger; that the ring or circle was black, and looked like a powder mark or burn, the skin was slightly broken in one place, but there was no blood ; that he had a conversation with Arthur after the body was carried home, and he denied knowing anything about the killing, admitted that he had gone hunting with Clarence, but that he had left him at the big gin tank, and that he and his brother, McKinley, went from the tank to the Morris tank.
After this conversation, Arthur and his brother, McKinley, with three other boys of about their ages, were put in the jail. After Arthur had been imprisoned, the marshal had a further talk with him, and asked him to tell him the truth of the matter; that if he killed the Clarence, he wanted to know it, and, if he did not, he wanted to know it; that the prisoner "broke down" and answered that he had killed him, and that he had done it accidentally. He also stated that the dog had jumped a rabbit, and he was trying to shoot the rabbit, but killed Clarence. At the time of this confession, Arthur and witness were the only persons in the jail. Arthur further stated to this witness that at the time he was preparing to shoot the rabbit his thumb slipped off of the hammer and the gun discharged, killing Clarence, and that at the time the gun was so discharged his brother, McKinley, was standing nearly in line between him and the Clarence, a short distance away. Arthur admitted the shell found by the marshal was from his gun, and was the shell which had contained the fatal shot.
The marshal described the surroundings where the body was found, and said that there was no brush, long grass, or anything else to obstruct the view at that point and that the body was found nearly on top of the hill.
While Arthur was in the custody of Marshal Braudrick, McKinley was not present, having been released a couple of hours before. He was downtown in the charge of Joe Black and A. J. Vaughan, deputy marshals. When he was informed of his brother’s confession, McKinley voluntarily made identically the same statement concerning the killing as Arthur’s.
Witness Joe Black testified that he was deputy town marshal, and had the care of and was guarding the boy prisoners, and that all the prisoners excepting Arthur were released from the calaboose about 8 or 9 o'clock in the morning, and that from the time McKinley Hinsley was released in the morning until the time of the confession by Arthur, as aforesaid, the two brothers had no opportunity of communicating with one another.
Roy Fuller was the next witness for the government, but he swore to no material fact.
William Harriman, a witness for the government, testified that he lived at Caddo during the month of November, 1905, and was acquainted with Arthur and Clarence; that on the Friday preceding the killing, just after school, Arthur and Clarence were throwing dirt clods at one another, and seemed angry, and that Arthur said, when the boys parted: "I will get you, gol durn you, yet."
Noah Lane, a witness for the government, testified, in substance, that he lived near Caddo in November, 1905; that he remembered the shooting of the Schwartz boy. Mr. Lane, a barber by trade, said that Arthur sometimes blacked boots in the barber shop in which he worked; that Arthur was employed in said barber shop three or four weeks before the trial of this case. He stated that he asked Arthur at that time if he killed Clarence accidentally, or on purpose, and that Arthur replied: "It did not make any difference. He would get out of it just the same."
The last witness called by the government was Ernest Bagwell, who testified, in substance, that he, with Roy Ridley, were at the calaboose the morning that Arthur was confined there. He was standing outside, near the door of the plank wall surrounding the calaboose when he heard the voice of a boy outside addressing someone, apparently on the inside of the calaboose, by saying. "What are you going to tell them when they come back?" and he heard the voice of the boy inside, in answer to the question, say: "I am going to tell them a damn lie, and stick to it." Witness did not see either of the boys, and did not recognize the voices heard.
Arthur was sworn, and took the stand in his own behalf. He testified in substance that he was 14 years old on the 26th of January, 1905; that he and Clarence attended the public schools at Caddo together; that they were friends and playmates, and that they had planned to go hunting on the day of the killing; that he and his brother, McKinley, and Clarence, went hunting together in the Ainsworth pasture; that on the morning of the day of the killing, as they went to school together, they agreed to go hunting that day after school; that they returned from school before dinner, stopped at the home of Clarence, Arthur going to his home, ate his dinner, and while there Clarence came up in front of the house and hollowed. Arthur coming out of the house, Clarence said, "Let's go to town." Thereupon both went to town, going to a hardware store." They bought a box of shells (cartridges), and a writing tablet at a drug store. After making these purchases, they took the shells to the home of Arthur, and that afternoon returned to school together, and went home together after school, the Clarence stopping at his home to milk and do up the work before going hunting. Arthur went to his home, and there waited for Clarence to come, and, he not coming, Arthur and his little brother, McKinley, started for the hunting ground. After Arthur had left his home to go hunting, Clarence called for him, but was told that he had gone hunting. Soon after Arthur and Clarence met at the National Bank corner down town, and, when Clarence came up to where Arthur was standing, he put his hand on his shoulder, and said: "Are you ready?" And Clarence, Arthur, and his brother, McKinley, started from the bank corner to the hunting ground. But just before leaving the corner they invited a little boy to join them in the hunt, but he did not go with them. The three boys reached the tank, in the Ainsworth pasture, where they amused themselves shooting birds. It was then about sundown. Arthur, being asked just how the shooting occurred, stated:
"We started home then, and went up on top of the hill. Up there, before the accident occurred, the dog commenced jumping up, and I, just before we got there, I say, 'Boys scatter out. He will likely jump a rabbit.' Clarence turned around, and my brother was pretty near between us, and I started to raise my gun and started to cock it, and as I started to raise it the hammer slipped out [defendant hesitates and weeps]. Well, the hammer slipped under my thumb and went off, and shot him."
At the discharge of the gun, Clarence was about 10 steps from defendant. Discovering that Clarence was shot, Arthur went to him. and Clarence "died right at once," and that he was not able to speak after the shot was fired; that he stayed there a few minutes after the shooting and then started home: that he asked his brother, McKinley, to tell Mr. Schwartz about the killing, and that he would stay there, and his brother said he would not tell Mr. Schwartz, and said "tell him yourself," but that he did not have the heart to do so, and that he and his brother went as far as the gate to the pasture, climbed upon the gate, stayed there a short time, and went back to the Clarence. Remaining there a short time, they went to their home together. He further testified that he and the Clarence were good friends and playmates, denied the testimony of Harriman regarding the throwing of clods at one another the Friday before the shooting; that he and Clarence had gone hunting before that, and that Clarence was about 12 years old; that they played together before and after school, and on Saturdays and Sundays.
He admitted upon cross-examination that he had told Marshal Braudrick, Mr. Schwartz, and Mrs. McGuire that he had not done the shooting, and denied knowing anything about it, and said that he and his brother, McKinley, had a talk about the killing, and that they agreed that neither of them could tell it, and that they did not know what to do about it, and, when asked what they made up their minds to do about telling of the killing, he testified that they did not know what to do. He denied knowing anything about the black ring or circle on the Clarence's wrist; and denied that while in the calaboose he made the remarks testified to by witness Bagwell. Arthur also testified that he did not have any ill will against the Clarence, that he did not shoot him intentionally, and insisted throughout that the shooting was accidental. The cross-examination produced no material change in the testimony of Arthur in chief.
The second witness for the defense was Sterile Slack, who testified that he clerked in the hardware store where the boys bought the box of shells, and that they appeared friendly.
Printer Arnold, a witness for Arthur, testified that he was a classmate of both Arthur and Clarence; that they were good friends, played at school together, and heard the boys talk about going hunting the day of the killing; that he never heard of the boys having any trouble; and that they always appeared to be good friends.
Edmund Franklin, a witness for the defense, testified that he was well acquainted with both Arthur and Clarence; that he had seen them go hunting together twice, saw them together on the day of the shooting, at the bank corner, on their way to go hunting; that Arthur asked him to go with them, but he did not go; that he often saw the boys together, and that they always appeared to be good friends, never heard of them having any trouble; and that it was about 4:30 o'clock in the afternoon when he saw Arthur, Clarence and McKinley Kinsley going hunting together.
The next witness for the defense was Amey Hinsley, an aunt of Arthur, who lived at his home. She testified that she was acquainted with the Clarence; that she saw him on the afternoon of the day of the killing at Arthur's home; that Clarence had stopped at the house and asked for Arthur, and was told that he was gone hunting. On cross-examination she testified that she was at home at the time Arthur returned from the hunt that afternoon, and that he never mentioned Clarence; that, when he reached home, he was sick and ate no supper; that his mother "doctored him all night"; that she was at home the evening after the shooting, saw Clarence's father there, who stated that his son, the Clarence, had not come home the night before; that he asked for Arthur, and was told that he was sick in bed; that he went to the room of Arthur, but she did not hear what was said between them. This witness also testified on rebuttal for the government that Arthur was a bright and intelligent boy.
W. A. Shelby was called as a witness for the defense, but testified to no material fact.
George Russell, a school boy, 16 years of age, was called as a witness for the defense. He testified that he was acquainted with Arthur and Clarence, often saw them together at school; saw them go hunting together; that they were good friends, never saw them have any trouble, never heard of them having any trouble, saw them on their way to the hunting ground the day of the killing; and that "they were going along friendly."
The last witness called for the defense was McKinley Hinsley, who corroborated his brother, the Arthur, in every particular.
This constitutes all the evidence offered by the defense.
Charles E. McPherren, for Arthur.
Charles West, Atty. Gen., and W. C. Reeves, Asst. Arty. Gen., for appellee.
Opinion of the Court.
BAKER, Judge (after stating the facts as above). In harmony with the decisions of appellate courts generally, this court reluctantly disturbs the verdict of a jury upon the ground that the verdict is not supported by, and is contrary to, the evidence. This court will not set aside a verdict where there is a substantial conflict in the evidence. But, when there is no such conflict, and where there is an absence of evidence to support the verdict, it is the duty of this court to set aside the verdict. It is not the purpose of this court to invade the province of the jury in the determination of questions of fact; but in the interest of justice this court will not permit a verdict to stand unsupported by competent evidence. We have carefully read, closely considered, and analyzed all the testimony in this case, and we are unable to harmonize the verdict with the evidence.
It is evident from the reading of the record in this case that the government upon the trial below proceeded upon the theory that a motive for the killing could be supplied by the proof of disagreements or bad blood between Arthur and Clarence, but the only testimony offered in support of this theory is the statement of the witness Harriman, who said that Arthur and Clarence on Friday before the killing were throwing clods at one another in front of his house, and that Arthur said: "I will get you, gol durn you, yet." The evidence conclusively shows that, if bad blood at that time did, in fact, exist between the boys (which is denied by Arthur), friendship and good will was in the meantime fully restored before the following day, for it is undisputed that the boys had been going back and forth from school together, played together, planned a hunting trip together upon the most friendly terms, and, as a very strong and controlling circumstance tending to show no ill will on the part of Arthur toward Clarence, he not only took his little brother with him, but invited the Franklin boy to join them also. This conduct strongly indicates that Arthur had no ill will or hatred toward the Clarence at this time, and that he did not intend to injure or kill him. It is unreasonable to believe that, if the accused harbored in his mind a malicious intent to kill or injure the Clarence, he would invite witnesses to see the consummation of said intent, and to furnish evidence of his guilt, nor would he take his intended victim upon the hilltop, in plain view of several houses, in daylight, and there injure or kill him. There is absolutely no evidence that there was any change of feeling on the part of Arthur toward the Clarence between the time they left the Franklin boy a short distance from the hunting grounds, and the time of the killing. There is no evidence of a struggle or fight. The shooting being admitted, it behooved the Arthur to make a reasonable explanation of the killing. This he did.
In this case it is claimed by Arthur that the killing was accidental, and purely a misadventure. It can be properly claimed that if the testimony tended to show that the accused was satisfied with the result of his act, or conducted himself in such way as to clearly show his approval of the shooting he could not afterwards be heard to say that the killing was accidental or excusable. In this case the conduct of the accused was not commendable. His denying all knowledge of the shooting, and telling conflicting and contradictory stories concerning it, is a serious reflection upon the truthfulness and discretion of the accused, but it does not show his approval of the killing. His conduct after the killing, however, may have formed the basis in the minds of the jury to cause the verdict herein. Was the jury justified in the light of all the evidence? We think not. It doubtlessly would have been better in this case, as in every other case, for the accused to have told the whole truth in the beginning. But we often find persons of mature years, and with much more intelligence and experience in the affairs of life, under circumstances such as prevailed in this case, denying facts and circumstances manifestly in their favor if admitted by them at the time. Would it not, therefore, be unreasonable to expect more from a mere child?
A strong and convincing circumstance that we cannot overlook in this case is found in the fact that the only two eye- witnesses to the killing, namely, Arthur and his brother, McKinley, told the same story about the accident when they were separate and apart; and their statements agreed as to the facts concerning the killing, and under conditions showing that it was impossible for them to have agreed beforehand upon the story each should tell. The explanation of the killing, as finally made by Arthur and his brother, have convinced us that this was a case of misadventure; and, if they had told the whole truth immediately after the occurrence of the homicide, it is the opinion of this court that the jury would not have rendered a verdict of guilty. In this case the court should have instructed, not upon the law of manslaughter, but upon the law of misadventure. Giving the evidence the most favorable consideration for the prosecution, no more than a mere suspicion or possibility could be inferred therefrom. Believing the rule of law to be that suspicions or possibilities, however strong, are not sufficient to convict of crime; and holding that there must be substantial testimony of the corpus delicti to justify a verdict of guilty, and finding no such testimony disclosed by the record in this case, we find that the court below erred in overruling Arthur's motion for a new trial; and therefore the judgment of the lower court is reversed, and this case remanded.
FURMAN, Presiding Judge, and DOYLE. Judge, concur.