Ep. 37 - To Kill a Milton

The Novel "To Kill a Mockingbird," written by Harper Lee, has been translated into over 40 languages, sold more than 30 million copies, been made into a movie and won a Pulitzer Prize. The story was set in a fictional southern town in the state of Alabama and tells the story of a black man, Tom Robinson, living in the South during the Great Depression and what happens when he is accused of rape by a white woman. A prominent white lawyer named Atticus Finch defends him masterfully and yet, Robinson is convicted and eventually killed when he tries to escape custody. It was as though Harper Lee had heard the true story of Robert Milton. Milton was a black man accused of rape by a white teenager in 1920s Mississippi. He was convicted and executed and most people believe he was an innocent man. Perhaps that is why he haunts the courthouse where he was hanged, the Old Tishomingo County Courthouse. Join us for this compelling story of how rape was treated in the 1920s, how racism biased a jury and the history and hauntings of an old southern courthouse.

The Old Tishomingo County Courthouse is located in Iuka (eye you kuh), Mississippi. Iuka is just a few miles away from the Alabama and Tennessee state lines and was founded in 1857 on a former Chickasaw Indian Village. Iuka is home to Woodall Mountain, which is only 806 feet above sea level, but is the highest point in the state of Mississippi. It was used by the Union during the Civil War to rain artillery down on Iuka, which was being held by Confederate General Sterling Price. The fighting was intense and lasted into the night when Price retreated with his force, giving Union General William Rosecrans the win in the Battle Of Iuka. Iuka would be where Tishomingo County decided to build a new courthouse. The land where the courthouse was built was acquired in 1857. Governor John Marshall Stone supervised the building of the courthouse. The historic sign outside the courthouse says it was built in 1888, but the website for the courthouse says 1870. So, we'll just say, the courthouse was built in the late 1800s.

The courthouse was built in the Romanesque architectural style with Second Empire flares. The main courtroom is on the second floor and would host a very infamous trial. The man put on trial was named Robert Milton and the year was 1925. Milton was a black migrant farm worker who was passing through Tishomingo County seeking work. The man wasn't in town long before the sheriff pulled along side him and informed him that he was under arrest. Milton was then charged with rape. A very confused Milton declared himself innocent. His accuser was a young white girl of sixteen years of age. The rape was said to have happened on a public path where the crime could have been easily seen. The young woman claimed that she had feared for her life because Milton had threatened her with a gun. So even though her brothers passed by while the act was being committed, she didn't call out to them.  

There were issues with the case right from the start. The sheriff had said that the young woman didn't seem to be very confidant that Milton was her attacker when he was brought before her around ten to twelve hours after the attack. The trial took place around six months later and the young woman easily identified Milton as her attacker. It seems that an identification would have been easier right after the attack versus many months later. There was absolutely no evidence whatsoever in this case. It literally was she said, he said, only Milton had no say. He was able to declare himself innocent, but any other testimony of his was inadmissible. He had no one to testify on his behalf either. There were no family or friends in the area and it is thought that no one made any effort to find any such people anyways. The jury quickly found him guilty and sentenced him to hang.

An appeal was made and we have the record of it here. There are some very interesting points involved in the opinion. Sexual assault can be a difficult crime as we have seen cases through the years where women were afraid to come forward because people doubted they were telling the truth. But we have also seen several times when men have been falsely accused. Society has struggled through the decades to define what constitutes rape. If a woman doesn't put up a fight or say"no," can she claim to have been raped? We have an understanding in our modern era that yes, a woman doesn't have to fight back for an assault to be an assault. But in this opinion, the higher court was faced with deciding whether the young woman had even been assaulted because she hadn't fought because the lawyers for Mitlon argued that point.

Opinion

No. 25316.

March 15, 1926.

RAPE. Absence of resistance on account of fear caused by assailant does not prevent attack being rape.

Attack may be rape, notwithstanding absence of resistance, where failure to resist, as testified positively by the female, was on account of fear, in which she was put by her strange assailant and his pistol.

APPEAL from circuit court of Tishomingo county; HON.C.P. LONG, Judge.

C.B. Wright and E.R. Ligon, for appellant.

I. We are unable to see from the evidence that there was any such resistance as contemplated by law on the part of the prosecutrix to make out a case of rape. She merely says in her testimony that she feared the defendant would kill her and assigned as reason for said fear that the defendant had a pistol in his hand, but in no testimony is there any threat of violence shown on the part of the defendant. The testimony does not show that he ever even requested her to keep quiet and make no outcry. It seems to us that in an attack of this nature, as shown by the testimony, any woman discovering herself in this peril would involuntarily scream or make an outcry of some kind, especially in view of the fact that she was within hearing of her two brothers and possibly within their sight at the very instant of the attack. People v. Morrison, 1 Park Crim. (N.Y.) 625. It seems preposterous to us that any intelligent mind could conceive of a negro man trying to ravish a white woman in a public path or road, where at any moment he might be walked upon and caught in said act.

It occurs to us as a matter of human nature that when a forcible rape occurs, the man, either black or white, wants and does carry his victim, wherever possible, into some secluded place where he has no fear of being discovered in said act. At the very time the defendant was alleged to have been actually committing the crime, the two brothers of prosecutrix passed by and she saw them but kept as still as a mouse, and made no outcry whatever, and at this particular time the defendant's pistol was lying some feet from him. We think that this testimony shows no resistance whatever but shows consent.

II. The identification of the defendant by the prosecutrix when he was carried before her, some ten or twelve hours after the act was said to have been committed, was not by any means positive or satisfactory, as shown by the testimony of the sheriff. Yet in court some six or eight months after the crime is alleged to have been committed, she identifies him positively. The defendant was not arrested for some two or three hours after the crime was said to have been committed, and had ample time to make a change of clothing or to make an escape.

In support of our contention as to the law of forcible rape we cite State v. Burgdorf, 53 Mo. 65; Anderson v. State, 35 So. 202; Devoy v. State, 99 N.W. 455; State v. Cowing, 9 Ann. Cas. 566 and note; People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; Davis v. State, 63 Ark. 472, 39 S.W. 536.

The defendant is a public charge; a poor, ignorant negro without money or influence and it is the duty of the court to scrutinize the record just as closely as if he were a man with money and influence, and we, as appointed counsel, feel that when this is done, the court will have no hesitancy in reversing this case.

Harry M. Bryan, assistant attorney-general, for the state.

Counsel for appellant predicate their argument for reversal simply upon the insufficiency of proof and seek to show that the prosecutrix offered no resistance and, therefore, consented to the act. While the record shows an attempt to establish an alibi, the defense not only failed, as will be shown by the many inconsistencies developed by their witnesses, but with the competent testimony of the prosecutrix and others who corroborated her upon the point of seeing appellant near the place of the crime about the time of its commission, it was clearly established that appellant was the guilty party. It will be especially noticed while we are considering the matter of an alibi, that appellant himself testified on cross-examination that on the morning of the commission of the offense he wore the same description of clothing that the prosecutrix, Miss Bickerstaff, McRae, Dr. Waldrop and Mr. Bullen all described. It is really unnecessary to discuss this phase of the case because the jury accepted as true the identification of appellant by prosecutrix and the others.

The nature and extent of resistance in rape cases depend upon the facts in each case. Rahke v. State, 81 N.E. 584, quoting from the opinion of Anderson v. State, 104 Ind. 467, 464, 4 N.E. 63, 5 N.E. 711. The authorities are well agreed that fear of serious bodily harm or injury makes void any consent obtained thereby. We have but to remember in this case appellant not only seized prosecutrix with his left arm while they were still in the small pathway, but covered her with a pistol; and according to her own testimony which was believed by the jury, she did what she was commanded to do because she was afraid that he would kill her. She testified that she remonstrated with him that she wanted to go to school, and he said, "No, right here," and he thereupon took her out of the pathway and accomplished his purpose. See Anderson v. State, 82 Miss. 784, 35 So. 202; Brown v. State, 103 So. 150; Vanderford v. State, 126 Ga. 753, 55 S.E. 1025; State v. Grove, 61 S.W. 697, 57 S.E. 296; Felton v. State, 139 Ind. 531, 39 N.E. 228; Rice v. State, 35 Fla. 236, 17 So. 286, 48 Am. St. Rep. 245; Baily v. Commonwealth, 82 Va. 107, 3 Am. St. Rep. 87; 2 Bishop's Criminal Law (8th Ed.), sec. 1125, and 33 Cyc. 1428; Clymer v. Commonwealth, 23 Ky. L. Rep. 1041, 64 S.W. 409; Smith v. Commonwealth, 119 Ky. 280, 83 S.W. 647; State v. Cunningham, 100 Mo. 382, 12 S.W. 376, and State v. Ward, 73 Iowa, 532, 35 N.W. 617.

HOLDEN, P.J., delivered the opinion of the court.

Robert Milton appeals from a conviction on a charge of rape and a sentence of death.

We have carefully considered the testimony in the case, which we shall not set out in detail, and have reached the conclusion that the testimony is sufficient to sustain the conviction, and that, while the testimony appears to be somewhat weak in certain respects, yet it was sufficient to warrant the verdict of guilty, if believed by the jury.

The two points urged for reversal are: First, that the proof was insufficient to show that the appellant was the person who committed the rape; and, second, that there was no resistance on the part of the female necessary under the law to constitute rape.

The identification of the accused was shown by the testimony of the prosecutrix and another witness for the state, which testimony was corroborated by another witness and certain circumstantial evidence; and we think the jury was within its province in deciding that the appellant was the man who committed the rape.

As to the lack of resistance on the part of the prosecutrix, we find from the evidence in the case that she made very little, if any, effort to resist the purpose of the accused, but she testified that her failure to do so was due to the fact that she was put in fear by the accused, who accosted her in a lonely pathway in the woods with a revolver in his hand, which she feared the appellant might use if she did not comply with his demands, and that, on account of such fear, she yielded without physical resistance.

Of course the law is well settled that, if the female fails to resist the attack, and in that way passively consents, then it is not a genuine case of rape; but, if the female is put in fear by the assailant, and on account of such condition she fails to resist the attack, it may be rape under the law.

The jury in this case had the testimony of the prosecutrix, who testified positively that she was put in fear by the appellant and his pistol, he being a strange negro and she a white girl sixteen years of age, and that, on account of this fear, she made no substantial resistance to the appellant. Therefore the jury was justified from the proof in deciding that the appellant was guilty of rape under the facts and circumstances of the case. This court will not reverse the finding of fact by a jury, where it is supported by reasonable, positive, and credible evidence, even though it may appear from the record that a different jury might have rendered a different verdict.

The judgment of the lower court is affirmed, and Friday, April 30, 1926, is set for the day of execution.

Affirmed.

So Milton was executed at the county courthouse on a makeshift scaffold made in the stairway. Milton's last words were, "You have the wrong man and I know the one you want is in this crowd." A trapped door was released under Robert Milton's feet and he was dead. There is a legend that a man in the crowd was overheard saying, "You can't hang two men for the same crime" and then he walked away laughing. Most people believe that Robert Milton was an innocent man at the wrong place at the wrong time. And in the 1920s in the South, a black man had little chance in court against a white woman. At least he got a trial. Many black men in this situation were lynched by mobs before they ever made it to court. After the execution, Robert's body laid in state for several days in the courthouse for the public to come by and see. His body was then moved to an unknown grave. 

Jerry Skinner made a great documentary about this and Robert Milton's great granddaughter Marilyn commented under it, "Robert Milton is my great grand father he was my grand father, father. my grand father told us about his father death and he only went by what his Mom told him because He was only 2 years old when this happen to his dad. This is such a sad story and I pray to God that these people ask God to forgive them for doing this to this family man who was only out trying to work to feed his family. Thanks Jerry for the story and my family would love to learn more. My family wasn't sure where they buried my great grand father, from what my mom told us the  state never gave our family his body and being poor and black back then their were nothing they could do about it.   This is a very sad story and it hurt our family to know that our love one has to face something so unreal. Robert Milton missed out on his Children, grandchildren and his great grandchildren whom love him dearly. My prayer is that my family will be able to understand and forgive, but We will try all we can to look into all of this and to know what really happen." 

After the court was moved to another building, the old courthouse became a multi-purpose building. For a time it was a makeshift city jail when the jail was overcrowded. It played host to Gospel singing conventions after that and then was used as a temporary tourism building. The next iteration put the courthouse on the map as the official marriage capitol of the South. Weddings were held from the 1940s until the 1980s with over 44,000 couples being married. Fun fact: Local ministers in need of extra money used to hang around on the Courthouse lawn to undercut the Justice of the Peace. There was no waiting period, and a lower age limit so couples could marry all in one stop. Couples have even been known to be married in their cars or the parking lot by the local ministers. In 1995, the building was saved and restored by a private historical society. Today, weddings continue and the courthouse is a museum with exhibits featuring artifacts from the Civil War, the Chickasaw tribe and local culture. There is a special heritage day coming up on August 31, 2024. The listener who shared this location told us that "My former coworker got married in the parking lot, got divorced upstairs, and received child support in another room!"

And perhaps that is why the courthouse is said to be haunted. Article written by Christian Evans in Tishomingo County News on October 29, 1998. "Do you believe in haunted houses? Many people do and some don't. There are said to be several "haunted" houses  in Tishomingo County. The most famous of these haunted houses isn't really a house anyone ever lived in, though many spent their lives there one way or another. The house in question is the old Tishomingo County Courthouse...strange things began to happen in the Old Courthouse. Footsteps were heard upstairs yet when someone would go up to investigate, no one could be found. Creaking boards could mean anything though. The floor could be settling, a rat or squirrel got in upstairs, kids playing a prank, or could it have been . . .a ghost? There have been reports of a face appearing in an upstairs window of the courthouse on stormy nights. Others have claimed to see it while passing on dark nights as they passed the old building even after old broken or discolored panes of glass had been replaced. Mr. Cecil Sumners, a former Tishomingo County Chancery Clerk who once wrote a brief history of the courthouse, reported a
strange incident. He wrote that one summer day there was a small group of teenagers cleaning up in the courthouse. By then, the building had been abandoned for several years. In the cleanup, the group supposedly found a transcript of Milton's trial and began to read. When they got to the reading of the verdict, a strange light suddenly appeared! Out of nowhere, it came toward the scared youths who ran out of the building screaming. There was no sun out that day, no lightning and the electricity was off in the dark building. I hate to leave you HANGING but what do you think? Could it have been . . .a ghost?"

The listener who suggested this location asked us to keep her anonymous, but she wanted to share her experiences. "I began working at the courthouse when I was about 4 weeks pregnant with my son. My very first encounter began with smelling lavender perfume in one specific area every time I would open and close the museum. I at first thought it was just me being pregnant, but I continued to smell it until the day I left (2.5 years later). By far, the craziest experience that I had while working there happened when I was 24 weeks pregnant. I hadn't felt well that day, but couldn't figure out why. I had heard some odd noises, but didn't think much of it. I had seen a printer paper box with my name written on the top. Most people wouldn't think anything of it, but I couldn't get over the creepy handwriting. It literally looked like a serial killer wrote my name in pencil. NOBODY used pencils in that museum. They used pens. I went to double check with my boss (who had been out of town until that morning) to make sure that I missed a box of items that needed research and cataloging. She assured me that was not her handwriting, and that nobody else had been in the museum. When I went to show her the box top, I was hit with a very big contraction. Me being me, I thought it was Braxton hicks....until another one came along....and then another one. I thought it was weird, but I thought I was being paranoid. What was even more strange was that was one of the only times that I smelled the perfume in my office, and then my computer randomly shut down. Two days later, I was hospitalized because I was in labor at 24 weeks (halfway)  I believe with all my heart the spirit was trying to get my attention so I could stop and rest. I would hear voices and hear doors opening and closing when I knew for fact that the museum was deadbolted. Several times I would be by myself and locked in, and I would hear someone walk into my boss's office. I made it a point to prove Robert's innocence, and I was able to through finding old trial transcripts. On my very last day, he allowed me to see him as he walked through the main entrance door."

Did Robert Milton commit this crime? A modern day jury would be hard pressed to convict with the lack of evidence. Is Milton's spirit at unrest because he was an innocent man when he was hanged? Is the Old Tishomingo County Courthouse haunted? That is for you to decide.