Five Times Convicted of Murder

EDMUND PEARSON

The Curious Story of Ervin Pope Related by an Amateur Criminologist

ON a night in April, 1909, a woman named Rachel McClurkin stood by the side of a lonely country road in Alabama, and watched her brother ride slowly away. He was going in pursuit of a thief, who, so they thought, had been robbing their cornmill and cotton-gin. Miss McClurkin had first roused her brother when she heard the sound of a wagon in front of the mill. She lighted a lamp; waited while her brother dressed; and then brought down a coat to be used as a saddle for the mule. Now, as McClurkin rode away, she stood by the road until she could endure the chill no longer, when she went back into the house. As she did so, the clock struck two.

Her brother had not returned at day-break, and the only other member of the household, Ernest Dodgen, the miller, went to the nearest settlement, the little town of Oxford, to make a search. He followed some wagon tracks, which he supposed to be those of the robber, and observed that they made a sharp turn near the house of one John Body, a negro, and that some cotton-seed had been spilled on the ground. In a cotton-patch, near the home of Body, was lying the corpse of James McClurkin, with his head beaten and crushed. Nearby were a stick of maple-wood, and a large stone, both blood-stained, and evidently the weapons of his murderer.

Four men were quickly arrested on suspicion, • and all were put in jail. Two or three of them were certainly negroes; probably all of them were. Against one of these, a fullblooded African, named Ervin Pope, the State decided to proceed; the others were discharged, and except for the appearance of one of them as a witness, they vanish from the case. As Pope was practically without funds, lawyers were appointed by the Court for his defence: a Mr. Sensabaugh, and Mr. Neil P. Sterne of Anniston, then a young attorney, and a gentleman of attractive character and personality.

THE case against Ervin Pope was this. He owned a farm two miles from McClurkin's mill. On the day before the murder, so it was alleged, he needed cotton-seed for his farm. He went, therefore, in the afternoon, to McClurkin's, ostensibly to have some corn ground, but really to look over the premises, and to talk with Alonzo Bradford, a negro boy, who worked at the mill. He found that Bradford slept there, and urged him not to do this. He gave various reasons,—one of them being that "a snake might bite him." When he returned after midnight, on robbery intent, and was filling his wagon with cotton-seed, sorghumseed, peas and other products, he was driven off by the light in the mill-owner's house. Afterwards, when he was pursued and caught by McClurkin, so the State charged, he murdered his pursuer to avoid arrest for the theft.

Further evidence of this was found in a similarity noticed by Dodgen, a skilled blacksmith, between the footprints of the mule he had followed, and those of a "mouse-coloured" mule owned by Pope. Sorghum-seed and peas, similar to those stolen from McClurkin, were found under Pope's lumber pile. In view of the traditional likeness of one pea to its brother, 1 do not see how the State made much out of this. Of sorghum-seed, I admit I have never taken judicial notice.

Much stronger than all this, however, was the state's contention that Pope had burned a pair of blood-stained overalls under an iron wash-pot in his back yard, early on the morning of the murder. Moreover, two days after the death of McClurkin, a. sheriff and his deputy, searching the premises of Pope, found concealed under the barn a pair of shoes which bore blood-stains and particles of what a physician said was human skin. Two negro boys testified that these shoes belonged to Pope.

Finally, there was some almost direct testimony of the murder from John Body, the negro near whose house the murder was committed. The stick of maple, with which the blows were struck, was taken from Body's wood-pile. That honest farmer had been awakened early in the morning by a quarrel outside his house. He heard the rattle of a chain as someone hitched a mule to a peachtree; he heard somebody say:

"Ervin, Ervin, I ain't going to do nothing."

Then he heard somebody strike another man "several licks." After this, the striker came into the alley in front of the house, and proceeded to do a strange thing: he took off his shoes, and threw them into the road. Then he unhitched his mule, and went away, leading the mule down the street,—a thoroughfare called by the pleasing name of the Choccolocco Road.

THERE seems to be something about the presence of a mule at *a murder which makes its rider do surprising things. There was the famous Jenny, of New Brunswick, New Jersey, whose owner lost a moccasin, and returned to a scene of crime and violence to hunt for it; and here is this Alabama tragedy, whose perpetrator deliberately leaves his bloodstained shoes at the scene of the crime. John Body, impressed by the importance of what he had heard, and mindful of the fallibility of human memory, called for pen, ink and paper, and holding a lighted match in one hand, wrote down the name "Ervin Ervin" (twice for good measure) on a piece of paper, which he gave to one John Draper.

Such was the case against Ervin Pope. Public opinion was much aroused and loudly demanded his conviction. His counsellor, Mr. Sterne, remarks that it was his first case. In behalf of the negro prisoner he had for the first time the pleasure of saying:

"Gentlemen of the jury!"

Their response was:

"Guilty as charged, and to be hanged by the neck until dead."

The case was appealed to the Supreme Court, and the verdict was affirmed. On an application for a re-hearing, however, a new trial was granted, and at this second trial, Mr. Sterne alone represented the prisoner. He decided that Pope's case was desperate, and that "he had just as well risk it without another lawyer." The result was another verdict of guilty, and another sentence of death. Again, however, a rehearing was granted, so that Ervin Pope became the central figure in an unusual situation: twice an appellate court had affirmed his death sentence and twice granted another trial. Mr. Sterne then asked to be relieved, and when his successor, another young attorney, was appointed, told him that:

"I turn Pope over to you just as much alive as when he came into my hands, and it is up to you to deliver Pope to your successor in like good order."

IT should be said, to the still further credit of the Alabama courts, that as time went on and as Pope's trials and convictions increased, he had the advantage of lawyers of age and experience. One of his later counsel had been a judge; another became a judge afterwards. The verdicts were always the same: guilty of murder in the first degree. At last he had had five trials; and was five times convicted and sentenced to death. Four times the Supreme Court of the State reversed the verdict, and ordered a new trial. On the fifth and last appeal the judgment was affirmed and the day set for execution. Then, in 1914, an appeal was made to the Governor, for commutation of the sentence to life imprisonment. The appeal was given the most careful consideration by the Governor. He was the Hon. Emmet O'Neal, the son of a man who also had been, in his time, Governor of Alabama. Ex-Governor O'Neal described this case, some years ago, at a meeting of the Alabama State Bar Association, and it is upon his paper, as well as the report of the remarks of Mr. Sterne, as given in the American Law Review, that this article is founded.

IT IS apparent that there must have been grave weaknesses in the case against Pope to make the higher court grant so many reversals, and to have caused the Governor at last to commute the sentence to one of imprisonment for life. The reader will have observed that the only evidence not circumstantial in the case for the State was the testimony of John Body, and that this was both ridiculous and suspicious. Nevertheless, there was aroused, during the five years of litigation, a "hostile, active and aggressive public sentiment" against Pope, which took the form of threats against his attorneys, threats of lynching against the prisoner, petitions signed by thousands, requesting the Governor not to interfere with the sentence, and much abuse of him after he had done so.

It seems to me a most instructive and interesting case, especially for us in the North, where we arc too apt, perhaps, to think that there is little justice for a negro in some of the Southern States. Here was a poor and friendless negro, without influence, and under the strongest suspicion of having brutally murdered a respectable white man. Yet attorneys gave their time and best efforts to his defence; the higher courts acted favorably upon his appeals for further consideration; and the Chief Executive leaned backwards to give the convict the benefit of every smallest doubt. Would the law in Northern States have had any more patience than this?

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Some of the considerations which probably influenced the Supreme Court and the Governor were these. John Body's testimony was contradicted, in several particulars, by that of Lina Price, a negress, who lived still nearer the scene of the crime, and by that of his mother, Nettie Body. Neither woman heard the cry of "Ervin, Ervin, I ain't going to do nothing." There was nothing unusual in Pope's visit to McClurkin's mill in the afternoon; it was the best mill, and his coming to it did not argue the dishonest purpose of spying out a place he intended to rob. John Body was himself a highly suspicious person: the defence charged him with the murder. He had been arrested, but was released after the first trial, when he immediately fled the country and never returned.

Upon "the bloody shoes", however, the Governor centred his attention. He consulted with the trial judge, who had presided at all five trials,— but who declined to recommend executive clemency. He asked if any chemical analysis had been made to determine if there really was human blood on the shoes, or if any test had been made to see if the shoes fitted Ervin Pope. So far as the judge knew, both of these simple precautions seemed to have been neglected. This was in 1914,—five years after the murder. So, by the Governor's direction, the State Chemist tested the shoes for blood, after which a bootand-shoe dealer, accompanied by responsible officials, took them to the jail and tried them on the feet of the convict. The Chemist reported that the lapse of time and the action of tannic acid in the leather had made it impossible to say whether or not the stains were those of human blood. The shoe-dealer, moreover, found the shoes two sizes too large for Pope, and bearing an unmistakable protuberance which signified a large bunion on the left foot of the owner. Pope had no such bunion. Wherefore, all things being considered, the Governor granted a commutation of sentence.

At the close of the Governor's address to the Bar Association, which was apparently read by someone else in his absence, Mr. Neil Sterne, counsel in the first and second trials, arose, and made a few remarks. They must have been highly diverting to his audience. Whether an attorney with so much courage, good sense and humour has been neglected by the electors of his district and state, I do not know; he ought to be in or on his way to Congress. Mr. Sterne said, among other things:

EDMUND PEARSON Begins a New Series of MURDER STORIES With This Issue of

VANITY FAIR

"Pope was not a man of good character. We did not dare to introduce evidence about character, as we did not care to have the State bring in rebutting evidence. He was not a man of property, as the Governor said. His farm was mortgaged. The attorney who handled his case at the beginning got $150, but when I came into it, there was only a one-eyed sow, which I was to have for my fee. A mortgagee intervened, however, and I did not even get the sow...

"On the first trial, I endeavored to believe there was doubt of Pope's guilt, and had what I should perhaps call a fraction of a doubt on the subject. By the time of the second trial, however, developments both in and out of the record convinced me of his guilt, and while I did not believe in his innocence, I made a fight that brought to me probably a hundred anonymous letters—the favorite form of expression being that they would cut out my black heart and feed it to the dogs. I stayed in the fight and did all I could for Pope and got his case reversed twice. . . .

"Governor O'Neal says he thought of something no one else ever thought of, and that was to fit Pope's shoes to his feet. Every lawyer in the case thought of that. The first thing we did was to find out whether the shoes would fit, and the next thing we did was to hope the jury wouldn't find it out."

He added that they tried on the shoes in a private room, when no deputy sheriffs were present, and after the test, he said, they were well content to drop the subject of the fit of the shoes. He told the prosecutor that if he asked to have the shoes fitted on Pope in Court, the defence would move for a mistrial in that it was an improper invasion of the privilege against self-incrimination. Pope lost about forty pounds in weight during the five years he was in prison, so Mr. Sterne had no doubt that the shoes were two sizes too large when they were tried on by the Governor's orders. And although he had no direct information, he felt it reasonable to suppose that Pope had also been cured of his bunion during his imprisonment.

John Body's testimony, said the attorney, was incredible, but his flight did not necessarily imply guilt of the murder. He had been threatened with mob violence, and that was sufficient cause for flight. I am not sure that Mr. Sterne mentioned it, but it seems believable that Body may have been innocent, and still have fabricated parts of his story, in order to make sure of the conviction of Pope, of whose guilt he may well have been convinced. Body knew that he was in a dangerous position, and may have decided that he would aid justice in convicting Pope, even if he had to tell a few whoppers in the process.

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After the commutation of the sentence, Mr. Sterne met and talked with a repair-man from the electrical company, who told the lawyer that he was out at his work, repairing wires, at two o'clock on the morning of the murder of James McClurkin. Coming along the road which the robber was supposed to have taken, he had met Ervin Pope driving his wagon, exactly as the State had contended. The electrician was one of these shy creatures, who did not wish to "get mixed up in a law case", and so had never come forward as a witness.

Mr. Sterne differed with the Governor's reasoning in commuting the sentence, but felt sure that the action, in the face of popular clamour, could only have proceeded from a high sense of justice and an admirable degree of moral courage.

He added that Ervin Pope had himself made a further commutation of his sentence by escaping from prison to complete liberty. Where he is, nobody knows.

The very sagacious and astute may conclude, however, that, wherever he is, he does not now call himself Ervin Pope.