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The following is © Dora Whitaker. Last updated 09/02/12. Please link to this site instead of reposting. Do not re-print, publish, distribute, or otherwise re-use without express permission from the author. Email: papershake.blogspot@gmail.com.
THE MURDER OF ELISHA WHITAKER BY JAMES MIZE
On the morning of April 24, 1901, Elisha Whitaker set out after his canoe. Someone had moved it from Elisha’s boat landing on the Pulaski side of the Rockcastle River and docked on the opposite bank. Elisha determined to cross the river a mile upstream at his uncle William Arthur's house, the nearest place he could cross without his boat, and then walk down the other side of the river to retrieve it. He carried with him a half-pint of whiskey and a forty-four caliber Winchester rifle he had procured the day before.
Elisha and his family lived in Pulaski or Rockcastle County[1], in a house a few hundred feet from the bank of the Rockcastle River. For the past month Elisha earned income selling groceries and whiskey at a storehouse located on the Rockcastle River bank opposite from of the Whitaker household, in Laurel County. Elisha used his canoe to get back and forth between his home and his store. He rented the store building from Robert Cooper, his half-brother.
Humphrey "Ump" Mize also lived along the Rockcastle River, next door to Elisha’s store. Mize’s household, Whitaker’s household, and Whitaker’s storehouse were all within seeing and hearing distance of one another. Also in the vicinity was London-Somerset Road, which crossed the river at a fording or ferry spot. Elisha’s boat landing lay only a few dozen feet upriver from the ferry spot. In Laurel County, the road passed by both Mize’s house and Whitaker’s storehouse. On the Pulaski side of the river, the road continued beside the residence of Albert Teague, who lived next door to the Whitaker’s.[2]
A few days prior to April 24, Elisha’s storehouse caught fire. According to Robert Cooper, Elisha had only operated the store three or four weeks. Elisha suspected arson—a message against his selling liquor—and blamed James “Jim” Mize, the son of Humphrey Mize. In the weeks previous, he had also accused the Mizes of shooting the locks off the doors on his store.
On his way to William Arthur’s house, Elisha crossed paths with his first cousin, George W. “Dud” Whitaker, who was walking with Elisha's son, Johnny. Dud was on his way to Elisha’s house to retrieve a horse that Elisha was boarding for him. Elisha and Dud talked briefly, and Dud drank a little of Elisha's whiskey. Elisha told Johnny to walk back home with Dud, and then continued on to William Arthur’s to cross the river—now armed with Dud's thirty-two caliber Smith & Wesson pistol in addition to the Winchester.
Dud and Johnny arrived at the Whitaker home, where they joined Elisha's wife, Emma, and their other children. From the house they all saw Elisha across the river at the burned storehouse. They watched him shoot the Winchester at something on or near the ground, in a direction away from Mize’s house; actions they later characterized as target practice. After this, Elisha walked down the London-Somerset Road to the river bank to retrieve his canoe. At the same time, Jim Mize exited his father’s house, and followed Elisha to the river from a distance. Across the river, Dud and Emma saw that Jim held a pistol in his right hand, lowered by his side. They watched Elisha spend a few minutes dumping water out of his boat before climbing in. He made it half-way across the river when Jim Mize shot twice.[3]
One bullet missed Elisha entirely. The other passed through Elisha’s right arm, through his torso (back to front), and lodged in his left thigh. Elisha fell from his canoe and into the water. Jim Mize turned and walked home, where he remained only briefly before setting off to the train station in Livingston. Albert Teague and Dud Whitaker ran to the river and pulled Elisha’s body from the water.
Jim Mize evaded the Laurel County authorities for two years. He later explained that he traveled by train from Livingston, in Rockcastle County, to the State of Illinois, where he remained one month before moving on to Missouri. There he stayed until after Christmas that year. He then spent a little over a year in Arkansas. In the Spring of 1903 he traveled home for one week before setting off again, this time to Georgia. He spent two to three weeks in Georgia before deciding to return home and surrender to Laurel County authorities.
The trial against Jim Mize began on October 19, 1903 in Laurel County Circuit Court in London. The defense’s version of events differed in only a few points. They maintained that Mize did not follow Whitaker to the river; rather, he was on his way to Albert Teague’s to haul some timber when he crossed paths with Whitaker. Jim, who testified at his own trial, claimed at that point Elisha aimed his gun at him before continuing on to his boat. Then, when Jim reached the river, he claimed Elisha turned around while sitting in his canoe and shot back at him, and that he returned fire in self-defense. Mize’s lawyer proposed that one of the two shots heard by witnesses was from Whitaker’s Winchester.
At the grand jury proceedings before the trial, Mize’s attorneys also painted a different picture of Elisha’s “target practice,” claiming that Elisha had not shot away from Mize’s house while standing at the burned storehouse. Instead, he had stood facing it, yelling threats and taunts, calling for Jim to show his face, and had fired warning shots in the direction of the Mize house. However, at the actual trial the defense did not revisit this narrative, and even Jim Mize made no mention that this had occurred in his testimony.
The jury deliberated for less than one day. They returned a unanimous verdict of guilty, and the court sentenced James Mize to a life term in the State Penitentiary at Frankfort in 1903.
The Defense filed a Motion of Appeal on October 23, 1903. They argued that the court erred in not allowing the jury to travel to the crime scene. They also asserted that the court should not have denied a Motion for Continuance to allow for the transportation of witness Albert Teague from North Carolina, where he resided at the time of trial. Teague did, however, submit an Affidavit to the court in lieu of his presence, which was submitted into evidence.[4]
The Kentucky Court of Appeals agreed that the Affidavit submitted by the absent witness was an acceptable substitute for his actual presence. They also agreed that the Circuit Court was within its boundaries when it denied the Defense’s request for the jury to travel to the crime scene. Fifteen miles, the distance to the scene from the Laurel County Courthouse, was understandably too far for the jury to travel, as that trip alone would consume an entire day of court. An accurate map of the crime scene was a suitable alternative to the jury travelling to view in person. The surveyor commissioned to make the map was selected by the Defendant, the Defendant’s parents were present at the time the survey was conducted, and the surveyor testified at trial.
The Court of Appeals ultimately affirmed the Laurel County judgment, remarking that the defendant was shown leniency because he did not receive the death penalty. However, Mize would not stay in prison for the rest of his life. In 1905, Jim’s mother Elizabeth Mize wrote a letter to the Governor of Kentucky, begging clemency for her son. Astonishingly, the Governor granted her request. He commuted Mize’s sentence after just two years served, and he was free to return home to his family.
Eighteen years later, in on Christmas Eve in 1923, James Mize was shot and killed in Laurel County by two brothers, John and Walter McQueen, for reasons unknown.
© Written by Dora Whitaker. Last updated 09/02/12. Do not re-print, publish, distribute, or otherwise re-use without express permission from the author. Email: papershake.blogspot@gmail.com.
[1] They moved to this residence in March 1901, so their location on the 1900 census in Pulaski is not the same place. Witnesses at trial most often referred to the house as located in Pulaski, but also sometimes referred to as in Rockcastle. I think the house was in Pulaski because William Arthur’s house was described as being upriver, and Arthur lived in Pulaski according to the 1900 census.
[2] Albert Teague (or Tigue or Tiggs) also moved to that residence in Spring 1901. By 1903 he had moved to North Carolina.
[3] This paragraph is the sequence of events according to the prosecution.
[4] Albert Teague’s affidavit is not part of the Court of Appeals case transcript.
BIBLIOGRAPHY
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Please see my post Genealogy Report of Elisha Whitaker for the genealogical info and sources used in writing this document.
Commonwealth of Kentucky v. James Mize. Kentucky Court of Appeals case file and transcript, 1904. Frankfort, KY: Kentucky Department of Archives and Libraries. The case file contains a transcript of the original circuit court trial that occurred Oct 19-22, 1903. Citation of the appellate court's opinion in Legal Reporters is as follows: Mise v. Commonwealth,
“Jim Mize Killed.” Laurel County Sun, London, KY. January 2, 1924. Microfilm, Laurel County Headquarters Library. Accessed June 7, 2012.
“The only killing in Laurel County during the Christmas holidays that we have heard of was that of Jim Mize on Monday night, Xmas eve, near Dog Wood Springs, by John and Walter McQueen, sons of Naiper McQueen. Squire Ray, of Frog Pond was called to the scene and John and Walter McQueen acknowledged that they had done the killing. They were brought to the Laurel county Jail the next morning and are awaiting their examining trial which was held Tuesday and held over to Circuit Court.”
“Mise v. Commonwealth of Kentucky,” Kentucky Law Reporter, Volume XXV Part II, (Frankfort, KY: Geo. A. Lewis, 1904), 2207-2208. http://books.google.com/books?id=33QsAQAAMAAJ (last accessed June 1, 2012).
Mount Vernon Signal, The, Mount Vernon, KY. April 26, 1901. From the Library of Congress, Chronicling America: Historic American Newspapers, 1836-1922.
http://chroniclingamerica.loc.gov/lccn/sn86069561/1901-04-26/ed-1/seq-3/ (accessed June 1, 2012).
“Jim Mize shot and killed “Little” Elishua Whitaker Wednesday. Whitaker was in a boat on the Rockcastle river and Mize was hid behind a tree on the Laurel county side.”
Mount Vernon Signal, The, Mount Vernon, KY. April 28, 1905. From the Library of Congress, Chronicling America: Historic American Newspapers, 1836-1922. http://chroniclingamerica.loc.gov/lccn/sn86069561/1905-04-28/ed-1/seq-3/ (accessed June 1, 2012).
“Gov. Beckham commuted from life imprisonment to two years the term of James Mise, of Laurel county, an inmate of the State penitentiary. Mise was sent up in October 1903, upon conviction of having killed Elisha Whitaker. The judges of the court of appeals recommended clemency.”
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