# Mattox v. United States (146 U.S. 140)

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
146 U.S. 140
Mattox v. United States
Statement by Mr. Chief Justice FULLER: This was an indictment charging Clyde Mattox with the murder of one John Mullen, about December 12, 1889, in that part of the Indian Territory made part of the United States judicial district of Kansas by section 2 of the act of congress of January 6, 1883, (22 St. p. 400, c. 13,) entitled 'An act to provide for holding a term of the district court of the United States at Wichita, Kansas, and for other purposes.'
Defendant pleaded not guilty, was put upon his trial, October 5, 1891, and on the 8th of that month was found guilty as charged, the jury having retired on the 7th to consider of their verdict. Motions for a new trial and in arrest of judgment were severally made and overruled, and Mattox sentenced to death. This writ of error was thereupon sued out.
The evidence tended to show that Mullen was shot in the evening between 8 and 9 o'clock, and that he died about 1 or 2 o'clock in the afternoon of the next day; that three shots were fired and three wounds inflicted; that neither of the wounds was necessarily fatal, but that the deceased died of pneumonia produced by one of them described as 'in the upper lobe of the right lung, entering about two or three inches above the right nipple, passing through the upper lobe of the right lung, fracturing one end of the fourth rib, passing through and lodging beneath the skin on the right side beneath the shoulder blade.' The attending physician, who was called a little after 9 o'clock and remained with the wounded man until about 9 o'clock in the morning, and visited him again between 8 and 9 o'clock, testified that Mrs. Hatch, the mother of Clyde Mattox, was present at that visit; that he regarded Mullen's recovery as hopeless; that Mullen, being 'perfectly conscious' and 'in a normal condition as regards his mind,' asked his opinion, and the doctor said to him: 'The chances are all against you; I do not think there is any show for you at all.' The physician further testified, without objection, that, after he had informed Mullen as to his physical condition, he asked him as to who shot him, and he replied 'he didn't have any knowledge of who shot him. I interrogated him about three times in regard to that,-who did the shooting,-and he didn't know.' Counsel for defendant, after a colloquy with the court, propounded the following question: 'Did or did not John Mullen, in your presence and at that time, say, in reply to a question of Mrs. Hatch, 'I know your son, Clyde Mattox, and he did not shoot me; I saw the parties who shot me, and Clyde was not one of them?" This question was objected to as incompetent, the objection ststained, and defendant excepted. Counsel also propounded to Mrs. Hatch this question: 'Did or did not John Mullen say to you, on the morning you visited him, and after Dr. Graham had told him that all the chances for life were against him, 'I know Clyde Mattox, your son, and he was not one of the parties who shot me?" This was objected to on the ground of incompetency, the objection sustained, and defendant excepted.
In support of his motion for new trial, the defendant offered the affidavits of two of the jurors that the bailiff who had charge of the jury in the case after the cause had been heard and submitted, 'and while they were deliberating of their verdict,' 'in the presence and hearing of the jurors or a part of them, speaking of the case, said: 'After you fellows get through with this case it will be tried again down there. Thompson has poison in a bottle that them fellows tried to give him.' And at another time, in the presence and hearing of said jury or a part of them, referring to the defendant, Clyde Mattox, said: 'This is the third fellow he has killed." The affidavit of another juror to the same effect, in respect of the remark of the bailiff as to Thompson, was also offered, and, in addition, the affidavits of eight of the jurors, including the three just mentioned, 'that after said cause had been submitted to the jury, and while the jury were deliberating of their verdict, and before they had agreed upon a verdict in the case, a certain newspaper printed and published in the city of Wichita, Kan., known as 'The Wichita Daily Eagle,' of the date of Thursday morning, October 8, 1891, was introduced into the jury room; that said paper contained a comment upon the case under consideration by said jury, and that siad comment upon said case so under consideration by said jury was read to the jury in their presence and hearing; that the comment so read to said jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows:
"The Mattox Case-The Jury Retired at Noon Yesterday and is Still Out. The destiny of Clyde Mattox is now in the hands of the twelve citizens of Kansas composing the jury in this case. If he is not found guilty of murder he will be a lucky man, for the evidence against him was very strong, or, at least, appeared to be to an outsider. The case was given to the jury at noon yesterday, and it was expected that their deliberations would not last an hour before they would return a verdict. The hour passed, and nine more of them with it, and still a verdict was not reached by 10:30 last night, when the jury adjourned and went to their rooms at the Carey. Col. Johnson, of Oklahoma city, defended him, and made an excellent speech in his behalf to the jury. Mr. Ady also made a fine speech, and one that was full of argument and replete with the details of the crime committed, as gathered from the statements of witnesses. The lawyers who were present and the court officers also agree that it was one of the best and most logical speeches Mr. Ady ever made in this court. It was so strong that the friends of Mattox gave up all hope of any result but conviction. Judge Riner's instructions to the jury were very clear and impartial, and required nearly half an hour for him to read them. When the jury filed out, Mattox seemed to be the most unconcerned man in the room. His mother was very pale, and her face indicated that she had but very little hope. She is certainly deserving of a good deal of credit, for she has stuck by her son, as only a mother can, through all his trials and difficulties, and this is not the first one by any means, for Clyde has been tried for his life once before. He is a youthful looking man of light build, a beardless face, and a nervous disposition. The crime for which he has just been tried is the killing of a colored man in Oklahoma city over two years ago. Nobody saw him do the killing, and the evidence against him is purely circumstantial, but very strong, it is claimed by those who heard all the testimony."
The bill of exceptions states that these affidavits and a copy of the newspaper referred to 'were offered in open court by the defendant in support of his motion for a new trial, and by the said district court excluded; to which ruling the defendant, by his counsel, then and there excepts and still excepts.' And the defendant excepted to the overruling of his motions for new trial and in arrest of judgment.
J. W. Johnson, for plaintiff in error.
Asst. Atty. Gen. Maury, for the United States.
[Argument of Counsel from pages 144-147 intentionally omitted]
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse