I find Virgil as Virgil (Rex Ray)
The10. APPEAL AND ERROR S Remarks of Trial Judge S Reversal. Record examined, and held, remarks of trial judge were not such as to authorize a reversal of this judgment.
Appeal from District Court, Haskell County; W.H. Brown, Judge.
Bob Hisaw was convicted of murder and sentenced to imprisonment for life, and appeals. Affirmed.
On the 13th of February, 1912, Virgil (commonly called Rex) Ray and his wife, Lizzie Ray, who had been married about a month previous to that date, separated. They had been living in a little one-room log house in the Hisaw neighborhood of Haskell county. Rex Ray was a tenant farmer, and prior to his marriage and up to the time of said separation had off and on worked for the defendant Bob Hisaw; the defendant being a farmer and stock raiser of that neighborhood. On the afternoon of February 13, 1912, Rex Ray and his wife and her father, Dick Odom, hauled what little household goods the Rays had up to old man Dick Odom's place. It was there that Rex Ray and his wife finally parted S Rex leaving there with a man by the name of Dink Dukes, another farm hand who had been working in that neighborhood, and when they left they said they were going across the river; this community being in the neighborhood of both the Canadian and Arkansas rivers near the junction of them. The general public never saw Rex Ray alive after dark of February 13, 1912. He was missed from that community. Along in April or May of that year it became rumored that Rex Ray had been killed and his body buried. On
the 28th day of June, 1912, Dink Dukes appeared in Stigler, the county seat of Haskell county, and informed the officers that Rex Ray had been killed on the night of February 13, 1912, and his body buried near the Arkansas river in what was known as the Hisaw bottoms, and that Bob Hisaw had shot and killed Rex Ray while he was asleep in bed at the home of one Rile Odom, a brother of Ray's wife, and that Bill Hisaw came with Bob Hisaw when the killing occurred. Dink Dukes also stated that he could go with the officers and find the place where Rex Ray's body had been buried. A complaint charging Bob Hisaw and Bill Hisaw with the murder of Rex Ray was immediately filed by the county attorney of Haskell county, and warrants issued for their arrest. The officers carried these warrants with them when they went down with Dink Dukes to disinter Ray's body. On their way they stopped at the home of Bob Hisaw, but could not find either him or Bill. There had been a picnic in Stigler on that day, which Bill Hisaw had attended. As soon as he heard that Dink Dukes had disclosed that Rex Ray had been murdered, and that the officers had gone to the scene to search for the body, he got a horse and immediately rode to Bob Hisaw's house, where he had been staying. The officers disinterred Ray's body, and found it wrapped in a blanket and quilt, dressed in a dark coat, an old blue shirt, either one or two pairs of trousers, and one pair of overalls. The flesh was partially decomposed, but a bullet hole was discovered in the head near the nose. These parties did not make a thorough investigation of the body because of its badly decomposed condition. The officers returned to Stigler, and thereupon Rile Odom and his wife, Mary Odom, were arrested in connection with Dink Dukes as being implicated in the
murder. About a week or ten days later Bill Hisaw came to Stigler and gave himself up. A month or two thereafter he was tried for the murder and acquitted. Bob Hisaw was not arrested until about October, 1914, when he was captured in McCurtain county, Okla., on a farm about ten miles from the town of Valiant. He was at that time going under the name of R.A. Johnson. The trial of Bob Hisaw took place in December, 1914. Bill Hisaw, Rile Odom, Mary Odom, his wife, Emma Hisaw nee Odom, Lizzie Ray, nee Odom, the widow of Rex Ray, and the old lady Odom, the mother, were all witnesses for the prosecution, and testified to a state of facts substantially as follows:
That Rex Ray separated from Lizzie Ray on the 13th of February, 1912, at old man Dick Odom's house, and left traveling afoot with one Dink Dukes. That he was dressed at that time in a dark coat, an old blue shirt, and a pair of overalls over a couple of pairs of trousers, and was wearing ordinary work shoes. Rile Odom says that he was at his father's house that day and learned of the separation of Rex Ray from his (Odom's) sister, and that along in the afternoon he started home riding horseback. That on his way home he overtook Rex Ray and Dink Dukes, and that they told him they were leaving the country, and were going across the river if they could find some place to ford that night. Odom says that he told them if they couldn't get across the river that night to come and stay all night at his house and wait until next morning and go across. That he separated from them near the Hisaw store and postoffice, their intention being to ford the river, and his to return home. He says that about an hour, or near that time, after he returned home, Rex Ray and Dink Dukes appeared at his house, stating that they could
not find a way to ford the river that night. That Odom lived in a small two-room log house not far from the west bank of the Arkansas river. That they all went to bed in one room; Rex Ray and Dink Dukes and Rile Odom sleeping in one bed, Rile's wife, Mary, and her two children sleeping on another bed, and Emma Odom sleeping on a pallet close to these beds. They state: That about 12 o'clock that night somebody came to the front of their house and halloed, "Hello!" That Rile Odom lighted a lamp and opened the door. That Bob Hisaw and Bill Hisaw came into the room. That as soon as he came in Bob stated, "There is going to be hell here in a few minutes." Rile says that he told Bob that he didn't want any hell there that night. That Bob immediately walked over to the bed in which Dink Dukes and Rex Ray were lying, turned the covers back, and with the remark to Rex Ray, "Wake up, old boy!" commenced to shoot him in the breast with loads from a pistol. That Bob Hisaw shot Rex Ray five times in the breast, and then stepped back from the bed toward the fireplace, remarking in substance, "Now, I guess you will burn my barn, and poison my horses, and sneak up behind me and cut my throat, and take me away from my little children," to which Rex Ray is alleged to have replied, "No, no, Bob," whereupon Bob said, "Well, I guess you need another," and reloaded his pistol, stepped back to the bed, and fired another load into Ray's head. The witnesses then say that Bob turned around to each of them with his drawn pistol, stating that if they said anything about it they would go the same way. That he then directed Dink Dukes and Bill Hisaw and Rile Odom to help him put Ray's clothes on, which was done, and the body wrapped in a blanket and quilt, carried out and placed on a horse which Bob Hisaw led and Dink Dukes
rode, holding the body in front of him across the horse, and Bill Hisaw walked beside the horse out to a field about 200 or 300 yards from Rile Odom's house, where the body was thrown into a gap and covered up with brush. Just when and by whom the body was buried does not appear from the record. Rile Odom did not accompany the parties away from the house. Some time after these parties left with the body of Rex Ray they again appeared at Rile Odom's house and washed their hands, stood around and talked, and finally Bill Hisaw and Bob Hisaw and Dink Dukes left. The next morning Rile Odom and his wife and children and Emma Odom all went up to old man Dick Odom's house. They stayed around there two or three days, and afterwards moved to a little house on Bob Hisaw's place, about a quarter of a mile from where he lived, and were still living there at the time of their arrest on the 28th day of June, 1912. Dink Dukes stayed around in that neighborhood for a while, and then disappeared. Bill Hisaw stayed on the farm there with Bob up until the day that Ray's remains were disinterred. Bob Hisaw also stayed there until that time. Old man Odom and his wife and Lizzie Ray testify that on the night of the 13th of February, 1912, Bob Hisaw and Bill Hisaw came to their house; that Bob asked if Rex Ray was there, and was told that he had left that evening; that Bob was drinking, and had some whisky with him, and offered them a drink of whisky, and then left. This was about an hour before he is said to have appeared at Rile Odom's house. Dick Odom and Rile Odom lived about four miles apart. There is some evidence in the record to the effect that Bob Hisaw and Rex Ray had had some trouble over a hog which either Bob had lost or it had been stolen, and there is evidence to the
effect that Rex Ray had made threats against Bob Hisaw just a short time before the homicide to the effect that there would be trouble between him and Bob if Bob came over to Rile Odom's to a dance that Rile intended to have, and danced with his (Rex Ray's) wife. It appears that Bob Hisaw and Rex's wife had been neighbors and friends ever since they were boys and girls together. There is also some evidence to the effect that Rex Ray had been married previous to his marriage to Lizzie Odom, and that his first wife had died mysteriously, and that Rex Ray was tried for killing her. This evidence, we presume, was admitted for the purpose of indicating that Lizzie Ray was afraid that Rex would kill her, and that she instigated her brothers and his friends to kill Rex and bury him. On the other hand, the theory of the state is that there was hard feeling between Bob Hisaw and Rex Ray, and that Rex had indicated that he intended to do Bob some injury, both to his person and his property, and that Bob was infuriated thereby, and on this occasion was drinking, and concluded he would put Rex out of the way in order to prevent any future trouble. The jury adopted the latter theory of the killing, and there is ample evidence in the record to support the conviction.
The defense relied upon was an alibi, Bob Hisaw testifying that he was at home from a little after dark on the evening of the 13th of February, 1912, all the balance of the night, and that he sat up with a sick child of his until after midnight, and that his wife and Hiram Thomas and Jeff Rainwater, his cousin, and Idus George were all at his house that night sitting up with the sick child. He is corroborated by all of these witnesses, who were shown to be either relatives or very intimate friends of his, at
whose places and with whom he counseled and conversed during the time he was scouting from the 28th day of June, 1912, up until October, 1914. Bob explains the fact that he went on the scout by stating that he had heard that the Odoms were going to testify that he killed Rex Ray, and that he did not know just when they would say it was done, and ran off until he could find out what their testimony would be. It appears, however, that after Bill Hisaw was tried and acquitted and the testimony of all these state witnesses became public, even after that time Bob returned to near the scene of the homicide and counseled and advised with those people who afterwards corroborated him in his alleged alibi. This was either late in the year 1912 or early in the year 1913, and yet after all that happened Bob again went on the scout and stayed for a period of over a year, and never did surrender himself to the officers.
A.L. Beckett, R.C. Roland, and E.O. Clark, for plaintiff in error.
S.P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
MATSON, J. (after stating the facts as above). The regularly elected county attorney
This killing, according to the testimony of the state's witnesses, was as cold blooded, cruel, and malicious as any of which we have read. If there ever was a case deserving
of the death penalty this is one. A defenseless man shot in the bed while asleep without warning, without opportunity to defend himself, or even to say good-bye, and then the defendant, after shooting him five times, and after reloading his pistol, returned to the bed because he was still alive, and put a final bullet into his brain, and then, after threatening the lives of those who were present, compelled some of them to dress the corpse and help load him onto a horse and conceal him in a deep ravine near the Arkansas river, where he was afterwards buried.
After a full and careful consideration of all the points urged by counsel for the appellant and assigned as reasons for a reversal of this judgment, we conclude that none of the errors complained of were of such a fundamental nature or so prejudicial as to deprive the accused of that fair and impartial trial which is guaranteed to him under the Constitution and laws of this state.
The judgment is therefore affirmed.
DOYLE, P.J., and ARMSTRONG, J., concur.
reason for the Ray name is he lived with my Grandmother.
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