Chapter Selection: 1 2 3

3.

The Trial

It was difficult to obtain witnesses, for it was discovered that Brown Autry and Henry Smith had murdered James Latham, then fled the country. But Autry was eventually found and the trial finally got under way.

The defendant argued that he

"was subject to fits of epilepsy, and at various times he became ungovernable and irrational, and did not realize what he was doing. Also, that on that day of the killing, he had been drinking and was intoxicated."

None too surprisingly the jury`s findings , signed by the shakey hand of foreman Andrew Hinkleberry, was that:

"We the jury find the defendant John Whittington, guilty of the murder as charged in the within indictment"

Consequently, on August 3rd , judgement and sentence were pronounced. These proceedings, recorded by Stephen Wheeler, clerk of the court, went in part as follows;

"Saturday morning 9o`clock, June 26th A.D. 1875, court met pursuant to adjournment. Present, the Honourable IsaacC. Parker, judge of the district court of the U.S. for the western district of Arkansas
On motion of William H.H. Clayton. Esq,Attorney for the western district of Arkansas, the said defendant, John Whittington, was brought to the bar of the court in custody of the marshal of said district, and it being demanded of him what he has, or can say, why the sentence of law upon the verdict heretofore returned upon him by the jury in the case of the 16th day of June 1875, shall not now be pronounced against him, he says he has nothing further or other to say than he has heretofore said, whereupon the premises being seen, and by the court well and sufficiently understood, cause the said John Whittington to be taken hence and him, the said John Whittington, safely and securely keep from the date hereof until Friday the 3rd day of September A.D. 1875, and in that day and between the hours of nine o`clock in the forenoon, and five o`clock in the afternoon of the same day, the same Marshal cause the said John Whittington to be taken to some convenient place within the district, and that the said Marshal then and there cause the said John Whittington to be hung by the neck until dead. And it is further considered by this court here that the U.S.A. recover all their costs in and about this prosecution laid out and expanded, and the clerk of this court is hereby ordered to furnish the Marshal with a duly certified copy of this judgement, sentence and order, which shall be returned by the Marshal to this court with a true and full account of the execution of the same".

Wheeler duly provided a certified copy, but it was not until December 1st 1877, a year and a half after leaving office, that James Fagan returned the document with his endorsement:

"I certify that I did at Fort Smith Barracks on the 3rd of September 1875, between the hours of 9o`clock a.m. and 5o`clock p.m. make due execution of the within judgement and sentence as therein commanded and directed"

The weeks spent awaiting execution in his basement cell at Fort Smith took their toll on John Whittingtons health. This and the concern for his wife and three children convinced him that he would be unable to speak beneath the shadow of the gallows. Consequently, a written statement was prepared for delivery on the fatefull day by the Reverend H.M. Granade, who was providing the condemned man with "spiritual guidance". Two of the eight men sentenced to hang on September 3, 1875, avoided that fate. One by commutation of sentence and the other by being shot during an attempted escape. The remaining six were marched out on the appointed morning accompanied by four clergymen and a body of armed guards, to the huge gallows that could simultaneously accommodate twice their number. The Methodist minister Reverend Granade, produced Whittingtons written statement headed "How I came to the Gallows", and with Marshal Fagans consent read it aloud. This address embodies the tone and sentiments so typical of a temperance tract, and so eloquent in style, that a sceptic might suspect the reverend gentleman of having foreseen the opportunity to preach the evils of strong liquor to what proved to be a crowd of thousands. The authentic last words spoken by poor Whittington himself were indeed directed to heaven, but struck a simpler and more desperate note. Moments before his life was snatched away he cried "Jesus save me!".

Supplementary Notes.

Isaac Charles Parker (1838-1896) presided over the U.S. District Court, Western District of Arkansas, from 1875-1896. For his story and details of those hung alongside Whittington see "Law West of Fort Smith" by Glenn Shirley, University of Oklahoma Press 1968.

Clayton was District Attorney (less a term of four years) from 1874-1893.
James F. Fagan served as U.S. Marshal from July 1874-July 1876.
Clerk of the Court Stephen Wheeler,a Union veteran of the Civil War, formerly newspaper editor, and one-time nominee for Republican Senator, held the position of clerk to Parkers court from 1875-1897.

Shortly after I received some documents from the Federal Archives in Fort Worth I was contacted by the Archive to ask permission to pass on my address to another person who was investigating the same case. Permission was given and I was contacted by the Grandaughter of Whittingtons wife. And she had been in contact with the Great-great-niece of the Hangman who hung Whittington on that day. This woman (now living in California) had read the same court documents as I had, but was still convinced that he was unjustly hung. As far as I know he was no relation to me, but that didn't make the story any less interesting, for it showed that even in those early days, legal jargon and court procedure hasn't changed much from todays law.

Acknowledgements.
My grateful thanks to those that helped me with my research; Roy O`Dell from Cambridge, Chuck Parsons, and Watt Espy, (the latter of the School of Law, University of Alabama, and the Archivists at the Federal Archives and Records Centre, Fort Worth Texas. O`Dell, Parsons and Espy, and Myself, at the time of my research were all members of the Outlaw and Lawmen Association , University of Wyoming.