Ferling, James

The preliminary hearing of Rose Ferling and Otis Smith charged with the murder of James Ferling, was called Monday before Judge Vern E. Thompson and resulted in Rose Ferling being bound over to the district court without bail and Smith being dismissed as charged, but held under a $500 appearance bond to testify for the state against Mrs. Ferling. County Attorney Ray McNaughton and his deputy, J. W. Swartz, with other prosecutors F. W. Nesbitt and Ben C. Axley, conducted the case for the state. John L. Crank represented the defendants. The killing for which they were on trial took place at shaft of the Picher Mine No. 9, last Wednesday afternoon about 6:30 o'clock. Evidence was introduced by the state tending to show that Rose Ferling, in company with her little sister, of sixteen years, and Otis Smith, went to the shaft where James Ferling, was working, and called him away from the dressing house to the car; that a quarrel was started and Ferling was shot. On his point, the best evidence perhaps, was that given by Emma Miller, sister of the defendant, who stated in direct testimony that James Ferling had no gun or weapon of any kind when he approached the car, but shortly after his arrival, while the quarrel was in progress, she heard a shot and noticed that Ferling left the car, but after that point she knew nothing except she heard more shots fired; that she had left the car for a short time and upon her return discovered the revolver that had done the shooting, as she later learned, laying in the seat. Emma Miller, being a sister of the defendant, showing material signs of a desire to forget many important facts in connection with the fatal difficulty, but county attorney McNaughton managed to get a reasonably intelligent idea of the case before the court. The first witness called for the state was A. Jameson, who testified in effect that he was a hard rock lead and zinc miner employed at Picher Oklahoma, and on the night Ferling was killed he was present. He further testified that while he was at the mine visiting with Jim Ferling, a car drove up and stopped, that a voice called from the car, "Jim come here," and in response to the call Ferling approached the car and a few heated words passed between Ferling and some female, and that this was ended by the report of a gun, then a short silence and more shots were fired. This witness testified that he ran when the first shot was fired, but returned later and found Ferling laying on the ground dead. A. O. Pringle was the next witness called and testified that he was an eye witness to the whole affair, but that it was so dark he was unable to distinguish who the parties were until when he, in company with others, found James Ferling laying face down-ward, about 20 yards from where the car stopped and where the shooting took place. Ellis Haworth was a very important witness for the state. His evidence was to the effect that he was in a certain little house with Jim Ferling when the latter was called to a waiting automobile that had just stopped outside. Haworth said that he and Ferling both went out of the house together, Ferling remarking at the time, "That's my woman calling me." After they were outside of the house Haworth says he stopped, but Ferling proceeded to the car. From this point on his evidence was practically the same as given by Pringle. Elzie Weaver testified in behalf of the state to the effect that he was an employee of Jim Ferling during the life time of the latter and that he was present at the time Ferling met his death at the hands of his wife, Rose Ferling, the defendant against whom he was testifying. Weaver testified further that he head Jim Ferling, while engaged in a struggle with his wife at the car, called out, "don't shoot, Rose, I'll not cause you any more trouble." Weaver says that directly after this language he heard a shot, and did not see any more of the trouble until he picked Jim up a short time after. Wearer says that Ferling was dead, and that in his opinion death was caused by a gunshot wound in the high left breast, just at the base of the neck. Dr. C. O. Lively was next called and testified to a few facts of expert evidence, giving the location of the wound as in the high center left breast; that the wound was sufficient, in his opinion, as an experienced surgeon, to cause death. Emma Miller, sister of the defendant, aged sixteen years, was called by the state, and upon her testimony, which was strongly against the defendant, the state rested its case. Emma said after having been questioned at length, intermixed with any number of objections and interruptions; "I was in the car when we drove up to the shaft; I don't know whether my sister called Jim, or not, he came out to the car and he and Rose got into a scuffle; sister and I were in the car," she continued, "and Jim was on the ground. I heard a shot fired and I jumped out of the car and ran away but returned later; while I was out of the car several shots were fired, I don't know how many. When I returned and got in the car I saw a gun in the seat, I did not examine the gun, and don't know whether it had been discharged or not. When we reached home I bought this gun from my sister," after further interrogation by County attorney McNaughton, she continued; "Yes, Rose told me she had killed Jim. That was when I went back to the car, she said she had to kill him had killed him in self defense." At this point and after telling the above story in a somewhat disconnected form, she seemed to forget everything that took place before the tragedy, while it was in progress and everything any time thereafter. After this the court recessed for the noon hour, and upon its opening county attorney McNaughton and associates announced they would rest with the state's case. Attorney Jno. L. Crank, representing the defendants, made a motion that Otis Smith and Rose Ferling be dismissed as charged, and offered demurrer to the testimony as insufficient to establish a case, and in no way connecting Smith with the murder of Jim Ferling. The county attorney agreed to the demurrer as applied to Smith but contested that part applying to Mrs. Ferling. The court sustained the demurrer as applying to Smith and over-ruled that portion mentioning Rose Ferling, binding her over to the District Court without bail. In cases of this nature, under the laws of Oklahoma, the presiding magistrate at a preliminary trial cannot grant bond. If a bond is to be had for Mrs. Ferling it can be obtained only by a petition to the District Judge of the district in which the crime is committed, or by the criminal Court of appeals. Upon motion of the county attorney, and his promise to file a bond later, Otis Smith and Emma Miller were held under $500 bond each for their appearance in District Court to testify against the defendant. Rose Ferling, her sister Emma Miller and Otis Smith were committed to jail upon default of the latter two to make the appearance bond. The general trial will be held in the January term of District county.