Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #18
Frank Howell
WEST VIRGINIA
Fishing Creek meanders down from the hills of Wetzel County,
West Virginia, to join the Ohio River, dividing the towns of Brooklyn and
New Martinsville. Here and there along its course are found small
mountaineer homes, with their kitchen gardens and a cow or two. The men of
these homes usually work at mining, farming, or odd jobs.
One of these small homes, near New Martinsville, was occupied in September,
1929, by Frank and Norma Howell, tenants of C. W. Edgell, who lived with his
own family about one hundred yards farther up the stream. With the Howells
lived the three children of Mrs. Howell by a former marriage – Eldora,
Ronald, and Betty Lehew, aged fourteen, twelve, and ten.
Norma Howell appeared to be much interested in discussing with neighbors the
newspaper accounts of the robbery on September 5 of Jack Cotts's filling
station, situated on the Waynesburg Pike, about three miles east of
Moundsville. Norma observed that, since the robbers were reported by Cotts
to have been a tall, gaunt man and a short, heavyset, round-faced woman,
descriptions which almost exactly fitted her husband and herself, John
Arnette, Chief of Police of New Martinsville, would try to lay it upon them
as he was always trying to get Frank "in bad."
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The record is not clear as to how they got there, but on
September 12, 1929, several days after Norma's statement, Frank and Norma
Howell found themselves in the jail at New Martinsville charged with the
robbery of Cotts's filling station. Mr. Cotts came to New Martinsville and
positively identified them as the bandits. 'They were at once transferred to
the Moundsville jail, and Prosecuting Attorney J. Lloyd Arnold began the
preparation of the case. This was comparatively simple in view of the
positive identification of the pair by Cotts and the definite way in which
he recalled the facts concerning the affair.
Cotts was a farmer who operated a Standard gasoline station on the
Waynesburg Pike. Near eleven o'clock on the night of September 5, 1929, he
was locking up his station when a large closed car drove up, occupied by a
man and woman who asked for some "Esso." Cotts unlocked his Esso pump and
supplied three gallons, all that was needed to fill the tank. When he
entered the station room to get some change, the man followed and asked for
some soft drinks. Cotts went to his ice chest and got out the desired two
bottles of "Orange," when he was ordered to "stick 'em up." He turned to
find himself covered by two revolvers, the second one in the hand of the
woman standing in the door. The bandits took thirty dollars in bills from
Cotts's hip pocket, and about twenty-seven dollars in cash from the
register. The woman kept him covered while her companion got the car
started, then she backed out, and they fled. Cotts grabbed his revolver, ran
to the road, and emptied his gun at the retreating car, but it had gotten
away to a flying start. Cotts at once reported the holdup to the police, but
no one was captured that night.
The Wheeling Register of the following day, in reporting the
incident, said that the car was a dark Buick sedan. When Cotts appeared
before the Grand Jury, and later at the criminal trial of the Howells, he
testified under oath that he did not see what kind of car the robbers were
driving, since he saw only the rear of the car where he supplied the gas.
The car, he testified, was a dark-colored, two-seated, closed car.
Circumstantial evidence also developed against the Howells. On the evening
of September 5, the three Lehew children went to the movies with their own
father. Also, Howell's landlord, C. W. Edgell, reported that on the evening
of September 5 Howell had promised to get him some crawfish, for fishing
bait, and that the next morning when his son went to get the bait, Howell
did not have it, excusing himself by saying that he had gone up the Ohio
River (which was in the direction of Moundsville). Edgell also reported that
Howell was very dilatory in paying the rent and sometimes was several months
behind, but that on September 7, two days after the robbery, Norma Howell
had paid him $10.00.
Although the Howells absolutely denied any knowledge of the holdup or having
been near the Cotts place, they were jointly indicted by a Grand Jury in
Marshall County and brought to trial before Judge James F. Shipman, in the
Circuit Court of Marshall County, on November 4, 1929. The prisoners were
unable to employ counsel, and the court appointed J. B. Rickey and John M.
M. Fitzsimmons of Moundsville to defend them. Upon motion of counsel,
separate trials were granted. Frank Howell was tried first. The general
circumstances implicating Howell were established. It was shown that he was
the owner of a closed Ford and possibly of another car. The exact
identification of Howell's cars was not developed, as the prosecutor's case
rested upon Cotts's positive identification of Howell. Cotts had seen the
bandit hatless under a good light at the time of the robbery – only about
two months before the trial. From the witness stand, he pointed to Howell
and said, "That is the man right there." He testified that he had no trouble
at all in identifying the defendant or his wife, saying, "I couldn't be
mistaken."
The defense was an alibi. Both of the Howells testified that during the day
of September 5, Frank assisted George Coburn to move. This was corroborated
by Coburn. After returning home from work about seven o'clock in the
evening, he remained there with Norma. Mr. Coburn called upon them between
eight and nine o'clock to see about some business. The three children,
having spent the evening at a movie with their own father, returned about
nine o'clock, when the whole family went to bed. None of the family left the
house all night. Clarence Lehew, Norma's former husband, and the three
children corroborated that part of the alibi pertaining to them. Both of the
Howells denied ever having seen Cotts prior to their arrest, and knowing
anything of his gasoline station. Howell claimed that Edgell's rent had been
paid earlier than Edgell said, and that the crawfish incident had occurred
in August. He also denied owning a revolver.
In cross-examining the Howells, the prosecutor introduced intercepted
letters admittedly written by the Howells, while in jail awaiting trial, to
various persons, suggesting how they should. testify. Having no counsel
then, the prisoners were apparently trying to handle their own cases in
their own way. Over the objection of defense counsel, these letters were
read to the jury.
After the defense rested, Prosecutor Arnold recalled Norma Howell and asked
her to identify a small black hat and a black coat. She testified that these
articles belonged to her. Then Mr. Cotts was recalled, and he identified
them as having been worn by the woman robber. Sanford Wright testified that
Howell had once told him that he had a .38 revolver and "said he had a
notion sometimes to use it." Jess Greathouse testified that he had heard
Norma comment on the similarity of Frank and herself to the description of
the robbers given in the newspapers. He reported Norma as saying, "Probably
me and Frank done it." On cross-examination, he admitted that he took this
as joking on her part.
With this testimony, the case was submitted to the jury, which returned a
verdict of guilty. In sentencing Howell to the maximum penalty, fifteen
years, Judge Shipman is reported to have said that he was determined to
break up the constantly increasing robberies in Marshall County. Howell's
only reply was : "Judge, you are sentencing an innocent man."
On November 6, 1929, Norma Howell was tried before a second jury on the same
charge, on the same testimony, and was acquitted, despite Cotts's positive
identification. This, to say the least, was a peculiar result, inasmuch as a
great deal of the detailed testimony connecting her husband with the robbery
concerned Norma's hat and coat.
As Norma was leaving the Marshall County Court House she was arrested on a
charge of robbery at Cadiz, Ohio, where an inn owned by W. A. Willett had
been held up by a tall, slim man and a short, stout young woman. She
maintained her innocence and refused to go to Ohio voluntarily. She was
extradited, and there indicted and tried in the Harrison County Court. She
was later acquitted and returned at once to West Virginia, where she found
employment as a waitress in a restaurant to support her three children.
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Irene Crawford Schroeder and Walter Glenn Dague, two
notorious convicts awaiting execution in the state of Pennsylvania for the
murder of Highway Patrolman Brady Paul, confessed on January 5, 1931, that
they had committed the robbery of the Cotts filling station as well as the
one at Cadiz. Prosecuting Attorney Arnold, Mr. Cotts, Defense Attorney
Rickey, and others went to the Newcastle (Pennsylvania) jail to hear the
confessions, which were recorded in an exhaustive affidavit describing every
detail of the holdup at Moundsville and of the movements of the pair before
and after. After this conference there remained no doubt in anyone's mind,
including Mr. Cotts's, that Irene Schroeder and Glenn Dague were the guilty
bandits and that the Howells were absolutely innocent. There was a
remarkable likeness between the two couples. With commendable speed, the
appropriate officials recommended the pardon of Frank Howell. Governor
Conley granted it on January 14, 1931.
Several days later, January 19, 1931, Chauncey D. Hinerman introduced a bill
in the West Virginia House of Delegates providing compensation for Howell in
the sum of one thousand dollars, on account of his erroneous conviction and
imprisonment for over fourteen months. The bill passed the House on February
6, 1931, but failed to receive action by the Senate Finance Committee prior
to adjournment of the 1931 Legislature.
One of the leading newspapers of the state commented editorially as follows:
No amount of money will compensate for the mental
suffering Howell endured through his fourteen months of false imprisonment.
Under the law, he is barred from suing the state and collecting damages. The
just and decent thing for the state to do is to act promptly and voluntarily
and compensate Howell, not make him fight for what is due him.
The brand of a felon is no light matter and fourteen months is a long time
to remain cooped up in a cell for a crime the prisoner did not commit.
Suffering was intensified by the fact that Howell all the while did not know
but what he would have to serve out the full fifteen years.
Our only objection to the Hinerman bill for restitution is the niggardliness
of the sum. It ought to be for several times the amount stipulated. Five
thousand dollars would not be excessive. It is due Howell and the state
would not be hurt by paying him more.
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This mistake was due to a conjuncture of erroneous identification by the victim of a robbery, plus circumstantial evidence. Hostile witnesses interjected enough unfavorable circumstances into the case to make the identification seem unimpeachable, whereas the alibi, perfect in itself, was in the main supported by self-serving or possibly interested witnesses. Why so little emphasis was laid on the car, a fundamental factor in the case, is not clear, for the Howells possessed no such car as was involved in the robbery. What doubtless weighed most heavily with the jury was the positive and persistent identification by Cotts. Perhaps the physical resemblance between the Howells and the guilty pair may to some extent excuse Cotts's mistake. Fortunately for the Howells, Irene Schroeder and Glenn Dague, nationally notorious murderers, had the grace, just a few days before their execution in Pennsylvania, to make a complete and irrefutable confession that they were the guilty participants in the Moundsville holdup. No one but the guilty persons could have given so accurate a description of every incident connected with the affair. Cotts then admitted his mistake, and was instrumental in having justice ultimately done. Although the judicial machinery thereupon moved swiftly to undo the wrong which West Virginia had inflicted upon the innocent Howells, it did not move as effectively as it should have, for the 1931 Legislature adjourned without making the compensation provided for in the Hinerman bill.
BIBLIOGRAPHY
1. Certified copy of the indictment of Frank and Norma
Howell, Office of the Clerk of the Circuit Court of Marshall County, West
Virginia.
2. Summary of the testimony given at the trial of Frank Howell, by W. F,
Keefer, Wheeling, W.Va., former Court Reporter of the Marshall County Court.
3. Wheeling Register, September 6, 1929; November 4, 5, 7, 1929;
January 15, 16, 1931.
4. The Washington (D.C.) Herald, March 23, 1930.
5. Certified copy of the confession, dated January 5, 1931, of Irene
Schroeder and Walter Glenn Dague.
6. West Virginia House of Delegates Engrossed Bill No. 14 – "A Bill
Compensating Frank Howell, etc."
7. Acknowledgments: Douglas C. Tomkies, Huntington, W.Va.; Vincent Legg,
Secretary to the Governor, Charleston, W.Va.; Albert G. Jenkins, State
Pardon Attorney, Charleston, W.Va.