Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #31
Willard Powell
IOWA FEDERAL
In 1908, Willard Powell, known to turfmen. as "the Waco Kid," lived in
Denver, Colorado. He owned horses and with them followed the racing seasons
from California to Colorado, through Oklahoma and Texas, to Louisiana and
Florida. His path in life crossed that of Henry Stogsdill, to his great
misfortune.
Henry Stogsdill owned a store and was in the business of stock trading at
Cabool, Missouri. One day in March, 1908, he was on his way to examine some
stock when a friend, William Scott, came running after him and said, "Would
you go and help me make some money if it didn't cost you anything?"
Stogsdill replied, "Of course, we are always out for a dollar." Scott then
introduced an old acquaintance of his, Billy Connors, who said he had a
cousin in Denver by the name of Frank Maxwell, secretary to a group of
millionaires. His employers had misused him and Maxwell wanted to get even
by getting some of their money, which he knew he could do if he only had the
backing of someone with substantial means. Stogsdill was asked to help by
going to Denver personally. They said it would not cost him anything and it
was intimated that if Maxwell succeeded in his scheme Stogsdill would get a
share of the profits. Stogsdill approved the idea and accompanied Scott and
Connors to Denver, where he met Maxwell, who explained the scheme. Stogsdill
was to meet the millionaires in a hotel room and to bet with them on a
private horse race to be run on the outskirts of Denver. Maxwell was going
to give Stogsdill $5,000 cash to be used in the betting. As secretary to the
millionaires, Maxwell would be permitted to be stakeholder in an adjoining
room and as money was brought to him he would slip more into Stogsdill's
pockets for further betting. It was planned that when the millionaires had
been induced to put up $20,000 or more, the race would be run, a race which,
Maxwell said, he would have so fixed that the millionaires' horse would
lose. Stogsdill was told, however, that he would have to have something to
prove to the millionaires that he was a man of means and a worthy person for
them to deal with. Scott prepared a letter which Stogsdill signed and mailed
to his bank at Cabool, Missouri, asking for S10,000. The bank refused to
send this amount. Thereupon Stogsdill was persuaded to return to Cabool for
his money, accompanied by Scott. He got only $3,000, and this by mortgaging
all his property. With this money they returned to Denver, met the
millionaires at a hotel as planned, and the betting began. Those present
were Lovejoy and two other millionaires, whose names Stogsdill did not
remember, Scott, Maxwell, and Connors; and they were later joined by one
Torn Rogers, who had charge of the race horses.
The first afternoon the millionaires bet thousands of dollars, and Stogsdill
matched them from funds stealthily supplied by Maxwell from the stake as
planned. Late in the afternoon the betting session was adjourned until the
following day. Next morning Maxwell told Stogsdill that he had learned that
the millionaires were going to offer S10,000 to start the day off and that
lie had only succeeded in obtaining $7,000. He pleaded with Stogsdill to
loan him $3,000 for the day. This Stogsdill did, and so his money went into
the pot. Shortly after the betting started this second day, and the $10,000
wagers were taken, one of the millionaires, Lovejoy, demanded a count of the
stake, saying that he was $500 short, and that he must have counted out too
much on one of the last bets. There was an uproar. Stogsdill saw that if
there was a count then, the trickery of Maxwell and himself would be
exposed. He was in a quandary, when someone suggested that Maxwell keep the
money intact and that they all go out and have the race run. They agreed
that the money could be counted after the match – the betting sheet
showed the amount that should go to the winner.
Thereupon, the whole group drove out in buggies beyond the city limits of
Denver and held the race in a secluded lane. At the start, the horse backed
by Maxwell and Stogsdill got off to a lead – but just before the end of the
race the jockey, Murphy, fell off on his shoulder and was apparently badly
injured, bleeding from nose and mouth. The millionaires' horse won, placing
Stogsdill and Maxwell in a difficult situation, for they realized that as
soon as the stakes were turned over to the winners, it would be found that
they had not actually put up nearly as much money as they had pretended.
Stogsdill, suspicious that there had been some foul play in the race, which
was supposed to have been spiked in his favor, pulled his Colt revolver and
started for Connors and the jockey, Murphy. Connors threw up his hands,
yelling, "Oh, my God, don't doubt me, don't doubt me" – and soon persuaded
Stogsdill to put his gun away, saying quietly to Stogsdill that Maxwell, his
cousin and stakeholder, wasn't going to pay the millionaires but that he was
going to skip town with the money and go to Cabool to hide. Stogsdill looked
around and, sure enough, Maxwell had disappeared. Connors then told
Stogsdill to leave town as quickly and rapidly as possible. Just then the
millionaires came up and Lovejoy, seeing Stogsdill's gun, drew his revolver
and covered him. Passions rose rapidly. Hot words filled the air. Two
determined men faced each other with pistols cocked. It was only through the
intervention of the others that a real duel was averted and the antagonists
were separated. The injured jockey seemed to recover and they all started
toward town. It was later found that in appearance only was the jockey
injured. He had carried a little sack of red liquid in his mouth which he
burst when he faked being thrown from his horse. Stogsdill and Scott went to
the station at once and took the first train home, there to await the
arrival of Maxwell with the money – Stogsdill's own 83,000 and his share of
the money gotten from the millionaires.
A week passed and no word came from Scott, Connors, or Maxwell. Stogsdill
knew that Scott was on the Blake farm near Sargent, Missouri, and wrote to
him there. He got no reply until April 16, 1908, when he received a message
suggesting that he could get back his money and more besides if he would
help Scott in finding new victims for the swindle. While Stogsdill evinced
some interest in this proposal, nothing came of it and he never got his
money back.
Just about this time the authorities received rumors and complaints that
organized groups were swindling persons out of large sums of money at
Council Bluffs, Denver, New Orleans, Seattle, and other cities. The United
States mails were being used in the scheme, and the Post Office Department
became interested. J. S. Swenson, one of the department's ablest and most
astute investigators, was assigned to the case, and the facts which he
uncovered astounded the nation.
In numerous cities, notably Council Bluffs and Denver, it was found that
several sporting gentlemen banded themselves together in what was known as
a "Millionaires' Club" for the purpose of operating fake horse races,
wrestling matches, foot races, and boxing matches. The plan was to have one
of their agents, a "steerer," induce someone with ready money, a so-called
"mike," or "sucker," who was looking for something for nothing by
extracting large winnings on a race or contest, to join with the club's
secretary in betting against the club, the "mike" believing that the race
or match was to be "thrown" in his favor. After the stakes were put up, with
the club's secretary as stakeholder, the event was instead thrown to the
club and the "mike" got a dose of his own medicine, just as did Henry
Stogsdill. The stage scenery was arranged according to the standing and
background of the prospective victim. John C. Mabray was found to be the
master mind in the scheme. There was found in Mabray's trunk, which was
seized at the time of his arrest in Little Rock, Arkansas, a documentary
record of the operations of the gang, showing that millions had been
collected by them and that nearly two hundred persons had assisted in one
way or another in carrying out the swindle. A long list of victims and the
detailed history of each transaction were found. In fourteen cities where
the scheme was worked, post-office lock boxes had been rented.
Through this Mabray record about eighty participating agents were located as
well as many of the victims. The results of the investigation were laid
before a Federal Grand Jury in Iowa, which returned an indictment, on
September 23, 1909, against the leader of the organization, John C. Mabray,
and approximately eighty codefendants, for conspiracy to use the mails to defraud under Section 5480 of the Revised
Statutes of the United States. Seventeen of those under indictment were
called for trial before Judge Smith McPherson in the United States District
Court, Southern District of Iowa, Western Division, at Council Bluffs, in
the March Term, 1910. The prosecution was in charge of Col. M. L. Temple,
assisted by George Stewart and Sylvester R. Rush. The seventeen defendants
were represented by nine attorneys. George H. Mayne of Council Bluffs,
Iowa, was the attorney for Willard Powell, one of those indicted. For ten
days, various swindled victims, from all walks of life and every section of
the country, told the court and the jury their tale of woe, each story
having the same ending. The scheme had been most cleverly worked out,
inducing persons to surrender their money, yet leaving them in such a
compromising situation that they were not anxious to report the affair to
the authorities. Henry Stogsdill, among the witnesses, told of his
experience in great detail. The Government had induced William Scott, the
fellow who had "steered" Stogsdill into the swindle, to turn state's
evidence and tell the whole story, thereby corroborating Stogsdill's
testimony, and also the stories of several other victims he had brought in.
None of the persons guilty in the Stogsdill affair, however, was among the
seventeen actually on trial, and the defense was prepared to ignore this
particular testimony.
No evidence had been produced connecting Willard Powell with any
conspiracy. The testimony of Joseph Walker of Denver, and John Sizer of King
William County, Virginia, showed that Powell knew and associated with some
of those clearly involved in the scheme, but there was no evidence
connecting him with the criminal conspiracy now charged.
The well-founded expectation on the part of Mr. Mayne, Powell's attorney,
that Judge McPherson would direct a verdict of acquittal for Powell, was
shattered on the seventh day of the trial, just before the closing of the
prosecution's case, by the recalling of Henry Stogsdill. He pointed out
Powell in the court room as being the "Tom Rogers" who was present in Denver
during his experiences there. Stogsdill could not give the date of the race any more exactly than that it
occurred sometime between March 20 and April 10, 1908, or about the first of
April. He did not remember the name of the hotel at which he had
registered, but with great positiveness he identified Powell. When Mr.
Mayne, on cross-examination, tried to shake Stogsdill's identification of
Powell, he testified, "He is the identical man that was there. He is the
man." Stogsdill had been attending the trial, he said, and had seen and
recognized Powell among the defendants.
This recalling of Stogsdill at the last minute placed the defense at a great
disadvantage, since Stogsdill could not fix very definitely the date when he
was fleeced, and the only other witness who had testified about this
swindle, "Steerer" Scott, had already been dismissed by the court and had
left Council Bluffs. The exact date of the transaction was the vital point
as to Powell, for his defense was an alibi to the effect that he was in
Havana, Cuba, in March, 1908, and that he returned to Tampa, Florida, toward
the end of that month, and did not arrive in Denver until after the middle
of April. Edward Rice and G. A. Millsap, race-track men, testified that they
were in Cuba with Powell and returned to Florida with him about the first of
April. J. E. Woods, a horse trainer, said that he was in Denver when Powell
arrived with his horses by train about the middle of April.
None of the defendants except Powell produced any witnesses. The case of
fifteen of the defendants went to the jury. It returned a verdict of guilty
for fourteen of them, disagreeing on one man. In finding Powell guilty, the
jury elected to believe Stogsdill's positive identification rather than the
testimony of the alibi witnesses.
On March 21, 1910, Judge McPherson sentenced Powell, with the others, to the
maximum penalty under the statute, two years in the penitentiary at
Leavenworth and a fine of $10,000.
--------------------
The Stogsdill identification had come so late in the trial of the case, and
the association of Powell with the Stogsdill
swindle was such a surprise, that the defense did not have an opportunity to
obtain further evidence to substantiate the alibi in time to have it
introduced before the end of the trial. Soon after the conviction, the
hotels of Denver were canvassed by defense counsel, and it was found that
Stogsdill, Scott, and Connors had stopped at the Brown Palace Hotel on
March 19, 1908. Calculating from this date, according to Stogsdill's own
testimony, the race must have occurred on March 28, 1908. The new evidence
positively established this date. Certified copies of the passenger lists
of the SS. Mascotte showed that Powell, Rice, and Millsap had gone from
Tampa to Havana on March 10, 1908, and had returned to Tampa on that boat on
March 26, 1908. Further, a number of postal cards from Powell to his
mother, mailed in Havana from March 12 to March 26, were produced.
Affidavits of reputable citizens confirmed the fact that Powell returned
from Havana to Tampa the latter part of March and stayed in Tampa until
April 8 or 10, when he left for Denver with his horses. He arrived in
Denver, April 19 or 20.
This evidence clearly established the truth of Powell's alibi, and the error
of Stogsdill's identification. All of the new evidence was submitted to
Judge McPherson, who, according to the Attorney-General's published report,
became satisfied that it was a case of mistaken identity and recommended a
pardon. The Attorney-General concurred in this recommendation and on July
12, 1910, President Taft granted Powell a full pardon.
--------------------
There is nothing extraordinary about this case of mistaken identity, except the brazenness and cleverness of the scheme for parting victims from their money and the evidence of the number of people whom cupidity can lead into a swindler's trap. Stogsdill was doubtless honest in his identification of Powell and was probably persuaded to his conclusion by his disappointment in not finding any of his "millionaires" or their unreliable "secretary" among the defendants. Powell evidently looked like Rogers. Fortunately for Powell, he had sufficiently ample funds and able counsel to conduct a thorough investigation and obtain documentary records to establish by dates the fact that he could not have been in Denver at the time of the Stogsdill affair. Not all victims of erroneous identification are so fortunate. By speedy work of all those concerned in righting the wrong, Powell remained in the penitentiary less than four months, though his total detention was much longer. Powell was first caught in the mesh because of his associations, but his ultimate conviction was more his misfortune than his fault. Nobody really can be blamed for it; certainly not the prosecution. Stogsdill's mistake turned the wheels of justice against Powell.
BIBLIOGRAPHY
1. Certified copy of the transcript of the testimony and court proceedings
(1834 pages) in the case of the United States v. John C. Mabray et al.,
Criminal Case No. 2189 (March, 1910) in the District Court of the United
States for the Southern District of Iowa, Western Division.
2. United States Attorney General's Report, 1912, p. 337.
3. Des Moines
(Iowa) Register and Leader, March 10-21, 1910.
4. Acknowledgment: George H. Mayne, attorney at law, Council Bluffs, Iowa.