The Last Public Execution in America

by Perry T. Ryan

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CHAPTER 11

THE INDICTMENT

On June 22, 1936, the prospective members of the grand jury met in a courtroom at the Daviess County Courthouse. Of those who were summoned for grand jury service, twelve, all men, were selected, including John M. Rudy, a realtor, the foreman; W. R. Jones, a grocer; B. S. Hemingway; W. F. Hafendorfer, a grocer; J. W. Karn, a pharmacist; Hugh Bailey; Ed Skillman; Beckham A. Camp, a grocer; Ray Jones; M. H. Taylor; Andy Donovan; and W. J. Dawson.

As the grand jurors sat in the jury box, Judge Wilson administered the oath of office and then spoke to them, stating in part as follows:

I don't believe you gentlemen realize how fortunate and privileged you are. It is a great honor and privilege for a man and his family to live in this county. People do not realize what a splendid place this is. We have a fine people, gentlemen. We do not want for anything. I think this is one of the garden spots of the earth, made so by natural resources and especially the people who live in it. Our boys and girls are brought up in a Christian community, a place of many churches, and where good people live.

And yet, gentlemen, right in the heart of it we have the most horrible crime that has ever been committed in any community. When we think of the good relation that has existed between the white and colored people, we cannot recall that there has ever been any clash between them. If reports that we read in the papers are true, a strange colored man from another locality drops into our community and remains here, except for a short time when he was sent away by the court, until a most horrible crime is committed. I want to congratulate the citizens of Owensboro on the splendid police department they have. I don't believe there is a city of its size in this country that has a more efficient police force. Every major crime that has been committed in the confines of Owensboro, save one, has been solved and solved quickly.

In three hours after this crime was discovered the police department knew who committed it, if reports are true. In three days they had that suspect under arrest, and he will be brought to an orderly trial. I know how people feel when a crime such as this is committed, but on second sober thought the good citizens stand back and say, ‘Let us have an orderly trial and let the law take its course.'

Taking the law into our own hands is a dangerous thing. When mob violence prevails many innocent men suffer.

When the first suspect was arrested in this case, and he had no more to do with it than you or I, if mob violence had prevailed he would not be able to be here now. It is the duty of the sheriff and jailer and police to protect prisoners in their hands and let an orderly trial progress.

A man who was in Lexington several years ago when a case of this type was being tried told me the other day that he was near the courthouse when it was thought an attempt was being made to get the defendant. Immediately the machine guns of the soldiers on duty there began firing and men on his right and left fell. He himself, an innocent man, was barely missed.

There is too much criticism of the officials. The police can't stand around our houses and guard them, and thank God they don't have to.

We propose to go forward as rapidly as possible. I will not, if I know it, commit any error that would make the verdict reversible and delay the case a year or so. I will try the case as speedily as possible and let the result be what it may.

On the day of the trial everyone coming into the courtroom will be searched for firearms. This will be done to keep some innocent person from being injured by the hot-headedness of some person who might become worked up over something he hears. I will confer with the sheriff and police about the crowd about the building and passage lines through it.

Judge Wilson added that a trial was necessary even though a confession had been obtained from the defendant. He also said that counsel must be appointed by the court to represent the defendant's interests.

The Commonwealth's Attorney, Herman Birkhead, then told the jury that the law required that an indictment be returned and that a petit jury return a verdict before a defendant could be convicted. "I have faith that juries will do the right thing." He also said,

I expect this grand jury to return an indictment for rape and possibly murder. I expect to prosecute the defendant for rape, and if he is convicted, he will be hanged in Daviess County. I expect this trial to be orderly. It cannot be held for three days. No excuse for continuance, except one that would make the verdict reversible, will be tolerated. If he is convicted, the defendant cannot be executed for thirty days after the verdict is returned, according to law.

I do not want to see mob violence in this case, and neither do I want this jailer and sheriff to lose their places because a prisoner is taken away from them. I believe the jury will be just in its verdict.

The grand jury convened at 10:05 a.m. and began deliberations. Birkhead told the grand jury, "I expect to prosecute for rape, and if he is convicted, he will be hanged in Daviess County." In this short period of time, the grand jury heard from twenty-six witnesses, including Dr. George L. Barr; County Coroner Delbert Glenn; Mrs. Edwards' neighbors Tom Smith, Robert Rutherford, and Robert Richardson; L. D. "Birdie" Gasser, a reporter with the local newspaper; Deputy Sheriffs Lawrence I. Dishman and Albert C. Reisz; George Steitler, and Owensboro jeweler; Owensboro Officers Russell P. Thornberry, William Vogel, and William Vollman, and Raleigh Bristow; Ester Nourse; Laura Anderson Smith; Morato Austin, one of the arresting officers of the Owensboro Police Department; Dayton Hicks, the other arresting officer; Jack Long; Robert M. Morton; J. R. Murphy; Wallace. E. Crady; George Koper, a reporter for the Courier-Journal in Louisville; Martin J. Connors, the Jailer of Jefferson County; Will Faith; Red Figgins; and E. R. Markham.

After an hour and forty minutes, the members of the grand jury returned an indictment at 11:45 a.m., charging Bethea with the sole crime of rape. The indictment charged as follows:

DAVIESS CIRCUIT COURT

SPECIAL JUNE TERM, 1936

COMMONWEALTH OF KENTUCKY, PLAINTIFF,

VS. INDICTMENT

RAINEY (RAILEY) BETHEA, DEFENDANT.

The Grand Jury of Daviess County, in the name and by the authority of the Commonwealth of Kentucky, accuse the defendant, Rainey (Railey) Bethea, of the crime of Rape upon the body of a female of and above twelve years of age, committed in manner and form as follows: to-wit:

That the said Rainey (Railey) Bethea, in Daviess County, Kentucky, on the day of June, 1936, and before the finding of this indictment, the said Rainey (Railey) Bethea, being a male person, did unlawfully, feloniously, wilfully, and with force and arms, make a violent assault upon Lishia R. Edwards, and then and there said Rainey (Railey) Bethea, forcibly against the will and consent of the said Lishia R. EDWARDS, unlawfully, wilfully and feloniously, did rape, ravish and carnally know said Lishia R. EDWARDS, a woman of and above the age of twelve years, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky.

Herman Birkhead

Commonwealth's Attorney

The judge knew that Bethea was not able to employ counsel, so he appointed four Owensboro lawyers to represent him throughout the legal proceedings which would follow. The four attorneys were William L. Wilson, the judge's twenty-three-year-old son; William W. "Bill" Kirtley; Carroll Byron; and C. W. Wells, Jr. William Wilson represented the defendant only because his father ordered him to do it. In modern court procedure, it would be an unethical practice for a judge to preside at a trial in which his son was an attorney representing one of the parties, due to the appearance of impropriety that this would have.

William W. "Bill" Kirtley was an experienced criminal trial lawyer. He was the oldest of the three attorneys, and acted as the leader of the four.

Carroll Byron was not experienced as a criminal trial lawyer. He and William Wilson were about the same age.

C. W. Wells, Jr., was about three years older than Byron or Wilson.