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EARLY SKETCHES,
In August, 1837, while the Choctaw, Chickasaw, Creek and Cherokee Indians
were migrating to their new homes in the north of Arkansas; west of Missouri
the Choctaws and Chickasaws homes were in the northern part of Arkansas, and
their direct road to their new homes was the old military road, commencing
at Old Jackson Mission, passing through Missouri and Arkansas via Little
Rock, to Fulton on Red River, near the then western boundary of Arkansas.
During their moving they were frequently troubled with horse thieves,
stealing their ponies worth from five to ten or fifteen dollars, and
complaint being made by the Indians to their agents about the loss of their
ponies along the road in Clark and Pike counties, their agent(s) used some
energy to arrest and bring the thieves to justice.
One party was captured in Pike county, convicted, and executed by the name
of Tyre O'Neal. A man by the name of John H. Mosley, then residing on the
said military road at Clear Springs, in Clark county, was arrested as
accessory before the fact for horse stealing (indian ponies), examined
before a justice's court, thought guilty and committed to jail to await
his trial in the circuit court; it being a capital offense was not permitted
to bail. Mr. Thomas McLaughlin acted as constable and James L. McLaughlin
was the then justice of the peace (two noble men never lived) in Antoine
township, near where Okolona now stands. Hon. L.I. Handy was judge of the
circuit court, James S. Ward was clerk of Clark county and Dr. Willis
Smith (the writer) was sheriff. Mr. Stevenson was state's attorney, but
resigned before court convened. Court in course met, but Judge Handy was in
feeble health, and adjorned for the space of three or four weeks. During
this time, the sheriff was compelled to keep a standing guard of twelve men
to prevent the prisoner making his escape by the help of outside friends,
the jail being nothing but a log house. This was the most trying and
exciting time that the writer ever experienced in this county in forty-nine
years; it tried the hearts and souls of men. It drew the lines of
demarcation between honest men and thieves and counterfeiters. "Birds of
the same feather ganged together."
Court met pursuant to adjornment, his honor, L.I. Handy, presiding. There
being no attorney for the state, his honor appointed John Fields prosecuting
attorney pro tem, assisted by Samuel Hempstead. Both had just commenced the
practice and were men of marked ability. Samuel Moore was called to their
assistance during the trial, a man of law and judgement. The prisoner was
indicted and arraigned before the bar, defended by George Conway, J.W. Coke,
Albert Pike, Grandison D. Royston, Thomas Hubbard, John Taylor, Judge Hall
and Childress. This drew men from every part of the state. The little town
(Greenville, the then county seat of old Clark) was crowded with both
strangers, not too many, only their special friends, and so remained.
About this time the county was flooded with raised bank notes; for instance,
the addition of a cipher to the right of the figure on a five dollar bill,
raised it to fifty, and on a ten dollar bill, to a hundred dollars, and so
on to a thousand, and were so well executed, that none but a close observer
could detect the fraud. But I will now return to the trial of said Mosley.
The grand jury returned a true bill against Mosley for being an accessory
before the fact for stealing Indian ponies.
State of Arkansas
vs.
John H. Mosley
Horse Stealing.
George Conway, Grandison D. Royston, Thomas Hubbard, J.W. Coke, Albert Pike,
Judge Hall, J.S. Taylor, _________ Childress, A. Fowler and Chester
Ashley for the defense, the most talented bar (I) ever had the good luck to
meet in Arkansas. The jury being made and empaneled, the prisoner was
arraigned before the bar and the examination commenced. The state seemed to
leave nothing undone and pushed forward with skill and ability, criticizing
every law point, while on the part of the defense, escaped the attention of
the lawyers (not) noticing every gap left down, if any. The case lasted
about two weeks, when it was closed and the jury retired, was out 24 hours
and returned a verdict of guilty as charged in the bill of indictment. The
defense moved for a new hearing but his honor, L.I. Handy, refused to grant.
The defense moved for an arrest of judgement.
The case was ably argued by the contending parties, and lasted five or six
days, but motion for arrest of judgement was overruled, and (when) the
prisoner was asked by his honor if he had anything to say why the sentence
of death should not be passed on him, plead not guilty. The judge then
passed the sentence of death. After asking the prisoner if he desired to
have the 30 days alloted him, and receiving an affirmative answer, his
honor passed the sentence of death, to hang by the neck until dead, dead,
dead, on the ninth day of December, 1837, (the Arkansas Gazette says,
"... the tenth day of December" ...) The guard was now increased to 24 men.
Many exciting scenes occurred during this time and on the day for his
execution. From all appearances various plans were tried for the rescue of
the prisoner from the sentence of the law by his party, but none succeeded.
Money was offered freely for his release.
During this interval, petitions were sent up to James S. Conway (Governor)
for his pardon, but all proved abortive until the day of his execution, when
the prisoner was shrouded and seated on his coffin, the prison door was open
and the wagon standing ready to carry the prisoner to the gallows and the
adjusting of the rope around the prisoner's neck. John S. Taylor, attorney,
came with a respite for 20 days for the convict, just in time to rescue the
prisoner. In a few more minutes he would have gone to that bourne from
whence no traveler returns.The prisoner was then placed in jail to await
the expiration of the twenty days. On the eleventh of December, at night,
Judge Hall came with a pardon in full from Governor Conway, on condition
that the party pay all legal fees except guard hire, and quit the county in
10 days and the limits of the state in 40 days, and not be found again in
the state, and if so, to suffer death as the sentence was pronounced on him.
The party soon settled all costs and the prisoner was discharged. When the
door was opened to discharge the prisoner, a crowd of his friends were
present, and the first words uttered by the prisoner, was: "Well, boys, all
of you come up to the grocery and take a drink."
This looked strange to me, a man just escaping from the sentence of death,
who had his shroud on, sitting on his coffin, (and) should think of whiskey
instead of prayer and thanksgiving to God. Thus ended one of the most
important criminal trials ever held in Arkansas. On the day for the
execution, there were more people present than I ever saw in Arkansas at one
time, before or since, ... excitement ran high. I thought the prisoner would
be taken from my custody and hung anyhow. At that time horse stealing was a
capital offense by special act of the legislature. All of the attorneys for
each side are dead, except, Grandison D. Royston and Albert Pike. Judge L.I.
Handy and James S. Ward, clerk, are dead. Dr. Willis S. Smith, the then
Sheriff, is yet living. Copy of the respite and death warrant:
James S. Conway, Governor of the State of Arkansas
To whom it may concern and especially to
The Sheriff of Clark county, Arkansas:
Know Ye That, Whereas, John H. Mosely has been condemned and sentenced by
the Circuit Court of said county of Clark, to suffer death by hanging on
the ninth day of the present month.
Now Therefore, I, James S. Conway, governor of the aforesaid, grant to said
John H. Mosley a respite from the sentence of the said circuit court of
Clark county. For the time and space of 20 days, from the date fixed for
his execution. And you the said sheriff of Clark county, are commanded to
suspend the execution of said sentence, of the said court on the said John
H. Mosley, for the said space of 20 days from the date fixed ... for his
execution.
In Testimony Whereof, I have hereunto set my hand and caused the seal of
the state to (be) (af)fixed, this seventh day of December, 1837, and of
the Independence of the U.S., the sixty-second year.
(Seal of State) J.S. Conway, by the Governor
R. H. Watkins, Secretary of State.
In (this) case of the State of Arkansas vs. John H. Mosely, the following
named persons were summoned by the sheriff of Clark county as guard to keep
the said Mosely secure day and night, as the jail was not secure, having
been made of logs; and the county site being then Greenville, was then
sparsely inhabited, the county was new and not settled much at the time.
The guard was one half on duty at a time while the other half was resting.
I remember well, at one time, Col. Bozeman and I sat on guard most of the
night: Col. Bozeman, Joseph Gray, David Morrison, Frank Russell, Thomas
McLaughlin, John Crow, J.H. Crow, B.F. Crow, James R. Crow, Abner Hignight,
George Horner, Abraham Newton, William Jones, Jesse Skinner, William
Pettyjohn, Col. Jacob Wells, A.A. Wells, G.W. Wells, James Sloan, Joseph
Hoofman, Elias Hoofman, Jesse Hoofman, Thomas Wingfield, Jacob Wingfield,
John Wingfield, Charles Wingfield, William Wingfield, Willis S. Smith, Dr.
J.T. Hayden, Hendrix White, Richard Wilson, Sam Kelley, John Stephens,
William Gentry, Jack Gentry, James Gentry, M. Ward, Jacob Logan, Benjamin
Logan, George Overbaugh, Abraham Weir, Z. Weir, Charles Franklin, William
Franklin, William Jones, Jr., John Lisenby, Lemuel Lisenby, Peter
Leatherman, J.S. Stuart and A.E. Thornton; A.J. Thornton, Moses Guice, B.F.
Wyatt, Enoch Frier, Peter McCain, _________ Prewit, F.C. Lisenby, Thomas
McNeely, Richard McNeely, William McNeely, Robert McNeely.
The guard would certainly have to be relieved by others. The average of the
guard was twelve men. There were many persons on guard, no doubt, not named
above. I write from memory altogether. It is nearing 40 years (1877) since
the transaction of the above occurrence took place, and but few are now
living who took part in this great trial. It is now one of the past events
of our county history, and but very few of the above name(d) are now living
to relate those trying times and talk them over when we meet. The memory of
those veterans should never be forgotten by those who live in the future.
Those who have departed this life and gone to the spirit land, I sincerely
hope, are gazing on those joyful scenes in that "Happy Land" and visiting
around the throne of God, or seated by some silver fount of life recounting
over their toils and trials whilst imprisoned here.
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Scrapbook of Dr. Willis S. Smith, Arkansas History Commission, Little
Rock, Arkansas.
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JOHN H. MOSLEY PARDONED
GOV. CONWAY has granted a pardon to JOHN H. MOSLEY, convicted of horse
stealing, at the last session of the Clark county Circuit Court. It appears
to have been a fair case for executive clemency, as he was believed have
been not the principal, but the accessory to the crimes. The punishment,
also, was considered disproportional to the crime. As the new code will
make an essential change in the part of our criminal jurisprudence, there
can be no question, we presume, of the propriety of extending mercy to the
convict, who will, in all probability, abandon the country.
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Arkansas State Gazette, December 12, 1837, page 2 column 1.
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David Kelley 1996