Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #46
Vaught, Stiles, and Bates
OKLAHOMA
The mountainous section of Eastern Choctaw Nation, Indian
Territory, in 1907, was covered by great forests of valuable timber, which
was manufactured into lumber.
In the fall of 1907, a human skeleton was found in a sparsely settled wood
in this section, about three-quarters of a mile from any roadway. The
nearest human habitation was the Bates sawmill, four miles away, and not far
from Heavener, now in Oklahoma.
At the place where the bones were found there was an old hat, together with
remnants of clothing, a pile of burned rock evidencing a camp fire, and some
crude cooking utensils and empty vegetable cans.
After the discovery of the skeleton, the bones were preserved by deputy
United States marshals, who were the chief law-enforcement officers in the
country at that time, and efforts were made, without success, to determine
the identity of the dead man.
Not long before, a young man named Bud Terry had mysteriously disappeared.
It was learned that Mrs. Knotts, his aunt, with whom he lived, had heard
nothing from him since his disappearance. As he had worked at the Bates
sawmill, there was a suspicion that Bates (the owner of the sawmill) and his
employees, Will Stiles and Millard Vaught, knew more about the case than
they were willing to admit. All three of these men, however, were native
sons and had good reputations.
Bates was about forty years old, and had married Stiles's sister. Stiles, a
farmer's son, about thirty, was of quiet disposition and well liked in the
community. Vaught, about twenty-two, of a good family, was high tempered and
inclined to belligerency, but was regarded as entirely honest.
J. W. (Bud) Terry, the man who had disappeared, had lived at Caulksville, a
small village in Logan County, Arkansas, seventy miles from the Bates
sawmill. In 1907, he was in his early twenties, and was well regarded in the
community. Having been left an orphan, he was brought up by his aunt, Mrs.
Julia Knotts, to whom he was greatly attached. He was a member of the
I.O.O.F. Lodge at Caulksville and carried an insurance policy in that lodge
for $1,000, with his aunt as beneficiary.
Even after Terry had reached manhood, he never left home for any length of
time without fully informing his aunt where he was going; and during his
absences it was his custom to keep her advised of his whereabouts.
In April of 1907 Terry went to the Bates sawmill to seek employment. He was
given work, as a lumber checker, with Stiles, whom he had known since
childhood, and Vaught. One Louis McKibben, about twenty-seven, was the
sawyer for Bates, and one Sam Swider, about forty-two, operated a boarding
house at the mill and in part time worked as a mill hand. McKibben and
Vaught were old acquaintances and neighbors in Arkansas.
Terry stopped working at the mill in August, 1907, when he disappeared
without a trace. The Odd Fellows Lodge and Mrs. Knotts made a wide search
for him, including extensive advertising. As it all proved fruitless, Mrs.
Knotts and the Lodge were satisfied of Terry's death and the insurance was
paid.
Terry's disappearance remained unexplained, no further action was taken in
the matter, and the case came to be regarded as one of many unsolved
mysteries.
Oklahoma was admitted into the Union as a state November 16, 1907, and the
area around the Bates sawmill became a part of Le Flore County, Oklahoma.
In November, 1909, Sam Swider was convicted in Le Flore County of the crime
of larceny and given a sentence of five years in the Oklahoma State
Penitentiary. In the fall of 1911, while Swider was serving his sentence, he
made it known to the warden that he wanted to disclose what he knew about
the disappearance of Bud Terry. This permission being granted, he related to
the warden that he saw Vaught, Bates, and Stiles kill Terry in a fight in
August, 1907. McKibben, after having talked with Swider, backed up his
story.
The warden immediately imparted this information to the sheriff of Le Flore
County, who, on November 18, 1911, swore out complaints for murder against
Vaught, Bates, and Stiles, charging them with the murder of Bud Terry in
Indian Territory, on August 18, 1907. The three men were at once arrested
and placed in jail. On November 27, 1911, they were granted a preliminary
hearing before an examining magistrate, Swider and McKibben appearing as
witnesses against them.
The magistrate held the defendants without bail to await the action of the
Grand Jury. The District Court and the Criminal Court of Appeals of Oklahoma
both denied bail, because of the convincing nature of the evidence.
Because the crime had been committed in Indian Territory in 1907, where by
Act of Congress the laws of Arkansas prevailed, a Grand Jury had to be
organized under Arkansas laws, just as if the state of Oklahoma had not been
created. Sam Swider and Louis McKibben appeared before the Grand Jury and
testified. On May 7, 1912, an indictment was returned and the defendants
were placed on trial before District Judge W. H. Brown at Poteau, Oklahoma,
for the murder of Bud Terry.
The trial was long and sensational. Many witnesses were called both for the
prosecution and the defendants. The prosecution produced a number of
witnesses who testified to facts and circumstances which tended to leave no
doubt that the skeleton was that of Bud Terry and that he lost his life at
the hands of Vaught, with the assistance and help of Bates and Stiles. The
skeleton was produced in court.
Mrs. Julia Knotts, Terry's aunt, positively identified the old hat which was
found near the skeleton as the one worn by Terry when she last saw him. She
identified the teeth in the skeleton and particularly a gold filling in one
of the front teeth, as Terry's, and further testified that when Terry was a
boy, some ten or twelve years old, his left leg was broken immediately above
the ankle. The leg of the skeleton showed a break at the identical point she
described.
Sam Swider, after giving a history of his connection with the Bates sawmill,
testified substantially as follows: In the month of August, 1907, he, Bud
Terry, Millard Vaught, Will Stiles, and McKibben went to Mena, Arkansas,
about forty miles south of Heavener, Indian Territory, and all except
McKibben attended for three days the annual fair held at that place. On the
last day of the fair they, with the exception of McKibben, returned to
Heavener on a train, arriving there about 4.30 p.m. On the same afternoon
Bates arrived in Heavener, shortly after five o'clock. He joined the four
men who had come from Mena, as did Louis McKibben, who had returned home on
the first day of the fair.
The six men then left in wagons for the Bates sawmill. All, including Terry
himself, had been drinking, but not heavily. Just before dark, when they had
come within two or three miles of the sawmill, they stopped the wagons for
some reason and all got out. Bates then said to Vaught, "I understand you
have been telling around that you have been going with my wife." Vaught
replied: "Whoever says I have been making such talk as that is a liar. I not
only never said that, but I have never known or heard anything in my life
detrimental to the character of your wife."
Bates answered : "Bud Terry told me that you said that.'' As soon as Bates
gave Vaught the name of his informant, Vaught turned to Bud Terry and
accused him of lying. Terry then, so Swider testified, told Vaught that he
need not deny making the statement, for he had certainly made it. A heated
controversy arose between Vaught and Terry, Bates and Stiles taking sides
with Vaught. The discussion became a brawl. Furious with anger, Vaught took
from the wagon a standard, about four feet long, and made of a two-by-four
piece of lumber, and struck Terry on the head with it a number of times,
crushing his skull, from which he immediately died. Bates and Stiles
encouraged the fight and were actual participants in it. There was, in fact,
a large hole in the skull, extending from about the left ear to the back of
the head. The prosecutor explained that after the right-handed Vaught had
struck Terry at that point, as the witnesses testified, wild animals could
then easily eat away the bones where the skull was broken.
Swider further testified that immediately after Terry was killed, Vaught,
Bates, and Stiles picked up his body and placed it on one of the wagons,
covering it with a wagon sheet. They warned Swider and McKibben that if they
ever told anyone of what they had witnessed they would be killed.
The body was taken to the sawmill camp and placed in the harness-room in the
barn, whereupon they all ate supper. Vaught, Bates, and Stiles, accompanied
by Swider and McKibben, then took the body and again placed it on the wagon,
and after gathering some old buckets and several cans, they hauled the body
about four miles from the mill site to the place where the skeleton was
later found, and placed it in sitting posture. They then placed some rocks
together and built a fire on them; hung a number of the buckets on the limbs
of the trees; and placed some of the cans on and around the fire. Then they
left.
Swider further testified that the three men stated that they were doing this
so that anyone who might find the body would conclude that the place was a
hobo camp and that the dead man was some unknown character who had camped
there. He and McKibben were repeatedly threatened with death if they ever
told what they knew. Fear made him keep the secret until he first revealed
it to the warden of the penitentiary.
On cross-examination, one of the attorneys for the defendants asked Swider
why it was, if he was afraid of the defendants, that he decided to tell
anyone about the affair. He immediately turned to the jury, "looking
directly into their faces, and said: "After I saw Terry killed in such a
brutal manner, it made my conscience hurt not to tell it and my conscience
continued to hurt me to such an extent that I finally made up my mind that I
would tell the truth about it if it actually cost me my life, and that is
why I am now testifying."
Louis McKibben also testified that he was present and saw Terry killed in
the manner described by Swider. He corroborated every detail. Other
witnesses testified that in August, 1907, they saw Swider, McKibben, and
Terry, with the defendants, in Heavener and saw them all leave together, in
wagons, late in the afternoon. They also testified that they never again saw
Terry.
The defendants in their defense admitted that Terry, Swider, and McKibben
worked with them at the sawmill until the Mena Fair in 1907. Testimony was
introduced showing that Stiles, Vaught, Terry, McKibben, and Swider went to
the Mena Fair, and that McKibben returned home on the first day. The
defendants stated that on the last day of the fair Swider and Stiles
returned to Heavener, as related by Swider, but that neither Terry nor
Vaught returned.
They testified that Terry's health had not been good for some time; that he
had had a lung hemorrhage; that he had said goodbye to Vaught and McKibben
at Mena, stating that he was going south for his health; and that this was
the last time any of the defendants had seen him.
Vaught stated that he never did return to the mill after the fair, but that
on the evening of the last day he went to the home of his parents, fifteen
miles east of Mena, where he remained; that, in going, he rode on a wagon
with six or seven persons, one of whom was an elderly lady who had been
awarded a rocking-chair at the fair as a prize for having the largest
family; and that Vaught, while riding in the wagon, occupied this chair
until they arrived at the lady's home, where he ate supper and remained
until about 9.30, when he went to the home of his parents, a mile away.
The records of the Mena Fair showed this award to the lady. Moreover, the
story of Vaught's having occupied the chair and taken supper at the lady's
home was corroborated by the lady herself and by several other occupants of
the wagon.
The defendants' alibi was exceptionally strong. They also made proof of good
character. But there were insurmountable facts which made it impossible for
them to convince the court and jury that they had not killed Terry. One was
that Swider and McKibben testified that they saw the defendants kill him.
Another was that the skeleton had also been positively identified.
However, the prosecution was handicapped in its effort to secure a
conviction, because so much time had elapsed that the statute of limitations
made it impossible to convict for manslaughter (unpremeditated killing) or
any other crime less than murder (premeditated killing). That compelled
Judge Brown to instruct the jury that unless they believed the defendants
guilty of murder they would have to acquit them, because prosecution for
manslaughter was barred by the statute.
After the jury had deliberated upon the case for forty-eight hours they
reported their inability to agree upon a verdict. The court then declared a
mistrial and discharged the jury. For the purpose of learning their
attitude, Judge Brown interviewed the foreman and other members of the
jury and was told that the jury entertained no doubt that the defendants had
killed Terry, but that their disagreement was due to the fact that a number
of the jurors believed that the defendants were guilty of manslaughter only,
which, under the instructions of Judge Brown, prevented their convicting
them.
The mistrial was declared May 15, 1913. The defendants had been held in jail
since their arrest in November, 1911. Under the Oklahoma law, when there is
a mistrial in any capital case, by reason of disagreement of a jury, the
court must allow bond. The defendants gave bond and were released from
prison May 16, 1912.
When the case was again called for trial, Stiles successfully demanded a
severance, and he was alone tried on the charge. Virtually the same
testimony was introduced as at the first trial. The same instructions were
given, but unlike the first trial, the jury, after deliberating many hours,
acquitted Stiles. Judge Brown again interviewed the members of the new jury
and was again informed that it was the unanimous opinion of the jury that
Vaught, Bates, and Stiles killed Terry, but that as they considered them
guilty of manslaughter only, they had, under the instructions of the court,
to bring in a verdict of not guilty. Judge Brown unhesitatingly expressed
his opinion that the three original defendants had killed Terry, but as the
greater part of the testimony indicated manslaughter only and as there was
no reasonable probability of ever securing a conviction of murder, he
permitted the county attorney to dismiss the case against Bates and Vaught.
In the public's view, the mysterious disappearance of Terry had been
completely explained. All doubt of his fate had been removed.
--------------------
But the story was not yet ended. The defendants,
particularly Bates, incensed at what they claimed was injustice and at the
loss of reputation and fortune, began an unremitting search for Terry. More
than five years passed without result. Then fate again intervened. One R. E.
McClelland of Los Angeles, California, had two brothers in Le Flore County,
Oklahoma, who had informed him years before of the mysterious disappearance
of Bud Terry and of the trial of Vaught, Bates, and Stiles for his murder.
About July 1, 1917, McClelland became an inmate of the Los Angeles County
Hospital, in California. It was there that he met Bud Terry, also an inmate.
He told Terry what had happened in Oklahoma. Terry immediately wrote to
McClelland's brothers and to others in Le Flore County, giving an account of
his wanderings since his departure from Heavener in August, 1907. Bates
learned of some of these letters, located Terry, and immediately arranged
for his return to Le Flore County.
In August, 1917, Terry returned and gave his explanation of his ten years'
absence. From the Mena Fair he had gone first to Lorain, Louisiana, and then
to Galveston, Texas, where he had remained until April, 1917, when he went
to California.
Judge Brown still presided over the District Court. Inasmuch as Swider and
McKibben had been absent from the state of Oklahoma the major portion of the
time after the trials in 1912, the crime of perjury had not yet become
barred by the statute of limitations; consequently Judge Brown ordered their
immediate arrest.
When Swider and McKibben were confronted by Terry, they promptly confessed
that all their testimony was a fabrication. Brought before the court on
charges of perjury, Swider and McKibben pleaded guilty and each was given a
sentence of twenty-five years in the Oklahoma State Penitentiary.
McKibben died in the penitentiary in 1924, as the result of an accident.
Swider, by getting credit for "good time," served out his sentence, but was
recently convicted in the Federal court for counterfeiting and sentenced to
the penitentiary at Fort Leavenworth, Kansas.
Bates left Le Flore County after his name was cleared and later died in
California. Vaught is living in Arkansas, Stiles, in California.
--------------------
What impelled Swider and McKibben to invent their tale was never explained. It has been suggested that Swider, in the penitentiary, sought to curry favor with the authorities by purporting to help solve a baffling mystery, and thus secure release, and that McKibben was willing to help his friend. The perjury was punished, but Vaught, Bates, and Stiles had suffered irretrievably. The circumstantial evidence was played up to fit the preconceived theory of murder. The skeleton and Terry's hat were even identified. An absolutely perfect alibi could not withstand such overwhelming odds. Even Judge Brown was convinced that Terry had been killed. Two juries actually found the innocent victims of the perjury guilty of manslaughter, but owing to the fortunate technicality of the statute of limitations, they were found not guilty of murder.
BIBLIOGRAPHY
1. The papers and records in the office of the Court Clerk
of Le Flore County, Oklahoma, relating to case, State of Oklahoma v.
Millard Vaught, Will Stiles and W. L. Bates, No. 670, Criminal Docket
of the District Court.
2. The papers and records in the office of the Clerk of the Supreme Court of
the state of Oklahoma relating to Ex parte W. L. Bates, Will Stiles and
Millard Vaught, Docket No. A 1563, Criminal Court of Appeals.
3. The papers and records in the office of the Court Clerk of Le Flore
County, Oklahoma, relating to case, State of Oklahoma v. Louis McKibben,
No. 1092, Criminal Docket of the District Court.
4. The papers and records in the office of the Court Clerk of Le Flore
County, Oklahoma, relating to case, State of Oklahoma v. Sam Swider,
No, 1099, Criminal Docket of the District Court.
5. Statement of J. W. (Bud) Terry on file in the office of the Court Clerk
of Le Flore County, Oklahoma, in case, State of Oklahoma v. Louis
McKibben, No. 1092.
6. Various news reports in the Poteau News and Poteau Weekly
Sun, Poteau, Okla., from August 1, 1917, to December 1, 1917;
Oklahoma City Times, January 2, 1932.
7. Acknowledgments: Hon. W. H. Brown, Municipal Counselor, 311 City Hall,
Oklahoma City, who was Presiding Judge of the District Court of Le Flore
County from 1911 to 1919; Hon. Hal L. Norwood, Attorney-General of Arkansas,
Little Rock; Hon. R. P. White, Poteau, Okla., one of the attorneys for the
defense.