Monday, December 24, 2012

Olvin Houston -- Another View

I became aware of Jonathan McCleese when he posted some items on facebook from materials he was looking through that belong to his mother.  Later, he read the story of Olvin Houston's death on this blog and wrote to give me another view of what happened.

My original story is on this blog and can be found by putting "Olvin Houston" in the search box on the home page.  This is what Jonathon provided to me from the McCleese Family.  In it you will see Olvin called Oliver.  His name at birth was Aulden G. Houston, but he was called Olvin.  He even named a son Olvin Jr.  Aulden/Olvin had a brother who was Oliver -- Oliver Denton Houston.  He went by Denton.  Just wanted to point out the names.  Oliver in this work from the McCleese family is Olvin.

Here is what Jonathan sent to me in messages on facebook:

December 15, 2012

Dear Karen,

I found you by using the email address provided on your blog "Southeast Kentucky Family." I am contacting you regarding the story you posted regarding the death of Olvin Houston at the hands of local lawman "Mac" McCleese.

"Mac" McCleese was actually Herman Frank McCleese. He would be my 2nd cousin, 3x removed. I am in contact with a number of of his direct descendants, including several of his children. They sent me a version of this story as passed down to them by Herman. If you would be interested, I will provide you with the story as long as his descendants don't mind me sharing it. Let me know and I will get to work.

-Jonathan McCleese



Sounds great to me. I never really understood McCleese being charged with murder. I mean, Olvin was out drunk and singing and shooting up the town and many people had asked that the law do something. Now the way it was handled with the guys calling out to him and shooting in his direction seemed a bit off, but the case has always fascinated me. Olvin's son, Olvin, just died last year. I got to talk to him a bit before he died, but he only knew what was said to him since he was pretty much a baby when Olvin Sr. died. I would love to have anything that the McCleese family might share and would add it as a separate story as as an addition and different version to the story.

I would be glad to know more.



December 16, 2012

So glad to hear back from you Karen! I have gotten permission from Tim Alderman, grandson of Herman McCleese, to share the story that he wrote and shared with me. I'm waiting to hear back from him on permission for you to share the story on your blog, but he was enthusiastic about me sharing it with you, so I'm hopeful that he'll consent to you publishing it publicly.

Here is a quote from Tim about the story.

"I wrote this story as I jotted down notes from my Uncle Marcus McCleese who is a son of Herman McCleese by his second wife. He was reading the accounts from the article from the 1920's. Marcus also said that his father had given details from the account. I also remember Herman McCleese's son by his first wife, Herman McCleese Jr. speaking about the account to my father. As Herman Jr. told the story tears streamed down his face as he said that Herman Sr. told him that if there was ever anyway possible to avert killing a man to do it. He said once you kill a man you will live with it for the rest of your life and you will always worry about the family that was left behind."

and now the story...

"Herman McCleese Shooting Incident in Fleming Neon"

"In the early 1920's Herman McCleese and his first wife Bess lived in a small coal mining town in Eastern KY called Fleming Neon. This small town was located in Letcher County, KY.

Herman was asked to be the mining superintendent because the men who were working in the mines had bullied the two previous superintendents off the job. Herman wasn't afraid so he took on the task of overseeing the mines and the production of coal for the company. The men had been making their brags that they were going to run Herman off like the others.

One day while Herman was working in the mines three men with guns came to his house and shot it up while his wife Bess and kids were in the house. These three men shot up other houses en route to the small town of Fleming Neon. They shot up the town and then the sheriff formed a posse to chase them.

The men headed back towards the homes they shot up but by that time Herman had arrived from work and strapped his 45 caliber and 38 caliber pistols to his waist as he went out to chase the men.

Oliver Houston was one of the three men and he opened fire on Herman shooting his hat off his head. Herman thought he had been hit as he thought it took his ear off with the shot. Immediately Herman shot and killed Oliver Houston with his 38 and emptied it.

Then he drew his 45 to shoot the others and it jammed. So at this point Herman charged one of the men who had taken aim at him and he knocked him across the railroad tracks and he kept jabbing his 45 caliber in the man's ribs trying to fire the gun. Herman was knocked off the man he had on the ground and they fled.

Herman quickly reloaded his 38 and when the sheriff and posse finally arrived they asked who had killed Oliver Houston and they said it was Herman McCleese. When the sheriff got to Herman's house he told Herman he was going to disarm him and arrest him. As the sheriff stood twisting his handlebar moustache, Herman pulled his pistol and cocked the trigger and told the sheriff that he wasn't surrendering his pistol and if the sheriff tried to take it he would get the hottest 38 he ever got.

The sheriff never took Herman's pistol and instead he was locked up in the Fleming Neon jail with his pistols strapped to his side. Herman received a jury trial and they found him guilty of murder and sentenced him to death by way of electrocution.

Herman was sent to Eddyville Prison and after serving 6 months he was released by pardon from the first Republican Governor of the state of KY. The governor who pardoned Herman was named Edwin Morrow. He stated that Herman was acting in self defense by protecting his family.

Upon release from prison, Herman went back to work in the mines in Fleming Neon and he remained superintendent of the job. Shortly afterwards one of the men who shot at Herman's house came looking for a job at the mines. Herman gave the man a job and the other men complained to Herman that the man would wait for an opportunity to kill him. Herman told them that he would kill him like he killed Oliver Houston. Herman couldn't be bullied from his job and he never had any more trouble from the men at the mines."

Also thought you'd be interested to know that I've been told the Sheriff that took Herman to jail was "Bad" (or "Devil") John Wright.

.---Jonathan McCleese

To Jonathan from Karen:

Nameswise there was an Oliver in the Houston family but that was Olvin's brother Oliver Denton Houston who went by Denton. Olvin's birth name was Aulden G. Huston (the way he spelled it). He went by Olvin. He had a son just before he died who was called Olvin Houston, Jr. He just died last year. I talked to him and his version of the story was pretty much the first part of the blog that I wrote. He added the part that Alma Meade said about Olvin singing and Nathan calling out "Sing it again, Uncle Olvin" and at one time he even knew the song that he was singing when he was shot.

Do you have the appeal? Just in case, here is what I copied from the records I found. I can't remember if I printed it word for word in the blog, so maybe this is the same.

Printed in the Southwestern Reported by West Publishing


(Court of Appeals of Kentucky. March 23, 1920.)

1. Homicide - Conviction of Manslaughter Held sustained

In a prosecution of a deputy town marshal for manslaughter, having killed a person that he was attempting to arrest, evidence held sufficient to sustain a conviction.

2. Criminal Law _ Instruction


In the prosecution of a peace officer for manslaughter, an instruction as to the duties of the defendant in making an arrest was not erroneous by reason of omitting to state that it was the duty of the deceased to peaceably submit to arrest upon the demand of accused, where the court also instructed that it was the right and duty of defendant to arrest the deceased.

3. Criminal Law - Grammatical DeFects IN VERDICT WAIVED BY FAILURE TO OBJECT.

A verdict, "We the jury do agree and fine the defendant guilty and fix his fine at three years confinement in the state penitentiary," was only grammatically incorrect,

and could not be misunderstood, and the accused waived any objection to the defects by failing to object to the form at the time it was read in court, and before the jury was dispersed.

4. Criminal Law - Defendant



A juror who did not know of or recognize any relationship between himself and a deceased in a homicide case could not be biased or influenced by such relationship, and accused could not be prejudiced by his sitting as a juror.

6. Homicide - Officer May Kill Person R ESISTING ARREST IF NECESSARY.

Where a person declines to be arrested and manifests a disposition to fight, an officer has the right to use such reasonable force as is necessary to overcome the resistance offered, even to the extent of taking life.

Appeal from Circuit Court, Letcher County.

Herman McClees was convicted of manslaughter, and appeals. Affirmed.

W. II. May, of Jenkins, and D. D. Fields and D. I. Day, both of Whitesburg, for appellant.

Chas. I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

SAMPSON, J. The grand Jury of the Letcher circuit court returned an indictment charging appellant, Herman McClees, and two other persons, Nathan Wright and Thomas Quillem, with conspiring to and willfully murdering Olvin Houston In the town of Fleming, on Sunday, November 30, 1919. A severance of trial was granted, the commonwealth elected to try McClees first, and he was convicted of the crime of manslaughter and given three years in the state penitentiary. From this Judgment he appeals. In his motion and grounds for a new trial he sets forth eight reasons, but he chiefly complains of the insufficiency of the evidence to sustain

the verdict and the failure of the court to properly Instruct the Jury as to the law of the case.

[1] McClees was a peace officer in the town of Fleming and was on duty at the time of the homicide. The deceased, Houston, and a nephew named Grant Wright were intoxicated. In fact they had been drinking Intoxicating liquors all day, and the killing happened about 8 o'clock at night. There is quite a lot of evidence In the record tending to show that the deceased was engaged in the Illicit sale of liquors. At any rate, he appeared to have an unusual supply of moonshine. Houston and Wright slept together at the home of a neighbor on the night previous. Next morning, which was Sunday, Houston gave Wright a quart of moonshine, and they began to drink. Houston had other liquor. They armed themselves with pistols, and later in the day went up and down through the town, firing at random and uttering threats against the peace officers of the town. The defendant McClees worked part of the morning at the coal tipple, but in the afternoon patrolled the town in an effort to keep order. He came home for supper about 6 o'clock, and just as he finished his meal he heard some shots in the edge of town and apparently along the public highway. On making some investigation he learned the shooting was done by Olvin Houston and Grant Wright, whom he had seen in the afternoon in a drunken condition. About the time he received this Information Nathan Wright, a brother to Grant Wright, came along and told McCleos that he should not go down in town in on attempt to arrest Houston and Grant Wright because he had just seen them, and they said to him that, "If you bring him (McClees; down here I will burn the God damned rags off of him." When McClees heard this he asked Nathan Wright to go with him down town in order to preserve order, but Wright went on towards his home, and defendant went back towards his home and procured another pistol, and again started towards the place of the shooting. When he came to the railroad track, which was the principal walkway through the town, he met ^Nathan Wright and Thomas Quillem, and he summoned these two men to assist him In arresting Houston and Grant Wright. The three proceeded In the direction of the shoot- fendant, or upon Nathan Wright or Thomas Quillen, but only a short distance, when they stopped on the railroad track. Shortly they saw two men approaching. One of them fired off his pistol, and was singing. It proved to be Houston and Grant Wright. Houston was carrying a pistol in one hand and a jug of moonshine liquor in the other, while Grant Wright was carrying his 38 Special in his hand. According to the evidence of defendant and his witnesses, Grant Wright, when he came up, said, "Hello, Buddie," to which the defendant replied, "Good evening gentlemen," and then said, "Consider yourselves under arrest," to which Grant Wright responded In substance, "There Is not a God damn thing doing; stand your ground, Olvin," and at the same time threw his pistol into a shooting position, pointing in the direction of defendant, at which time Nathan Wright sprang forward and grappled his brother, Grant Wright, and took the pistol from him. While this was going on, Houston threw up his pistol, striking defendant in the side; whereupon defendant fired four shots in quick succession into the head and face of Houston, killing him instantly. The defendant Is sustained in his evidence by Nathan Wright and Thomas Quillen, but he Is contradicted by Grant Wright, who says that there was not a word uttered before the shots were fired which killed Houston, except Nathan Wright said, "This Is your brother," when he grabbed Grant and took the pistol, and, further, Grant Wright testified that defendant, McClees, fired only one shot into the body of Houston before he fell and fired three shots into his face after he lay on the ground. No one corroborates Grant Wright, and his testimony on other points is very unsatisfactory. However, his statement was heard by the jury and was sufficient, if believed by the jury, to have warranted the jury in returning the verdict of guilty.

Appellant insists that the instructions are erroneous and prejudicial, but we have carefully examined them, and have compared them with instructions heretofore approved by this court in similar cases, and find they contain no prejudicial error.

Instruction No. 4A is assailed because it does not require the deceased to peaceably submit to arrest. This instruction reads:

"The court instructs the jury that in making the arrest of the deceased, Olvin Houston and Grant Wright, or either of them, it was the duty of the defendant to notify them, or the one about to be arrested of his intention to arrest them, or him, and of the offense charged against them, or either of them, for which he was making such arrest, unless they, or either of them knew that they, or either of them, were about to be arrested and the offense charged, if he had a reasonable opportunity to do so, or unless the said deceased, Olvin Houston or Grant Wright made an immediate attack upon the de-

Quillen and thereby prevented him from so doing."

Appellant urges that this instruction should have contained a clause, in substance, as follows: It was the duty of the deceased to peaceably submit to such arrest upon the demand of defendant.

[Z] The trial court could very properly have added this to the instruction, but inasmuch as the Jury was told that the defendant, Herman McClees, was a deputy town

marshal, and as such had the right and it was his duty to preserve the public peace and to prevent any and all breaches of the public peace, and to arrest offenders In order to preserve the peace, and, further, that McClees "had the right and it was his duty to go to said Olvin Houston and Grant Wright, or either or both of them, and to use such force as was reasonably necessary to prevent the continuance of said conduct, and if said deceased, Olvin Houston, or Grant Wright, or either of them, refused to obey or so conduct himself, or themselves, in the presence of the defendant, or defendant had reason to believe or believed that said deceased, or Grant Wright was then and there about to kill defendant, or Grant Wright, or Thomas Quillen, or either of them, or do defendant, or Nathan Wright or Thomas Quillen, or either of them, some great bodily harm, and defendant believed and had reasonable grounds to believe from the conduct of the said Olvin Houston, or Grant Wright, that to avoid such danger, either real, or to him, or them, or either of them,

apparent, It was necessary to shoot said Olvin Houston, you will find the defendant not guilty," It was unnecessary to restate the principle In the manner suggested, because, as the Jury was told that the defendant had the right to arrest Houston, It necessarily followed that it was the duty of Houston to peacefully submit to the arrest

[3] The verdict is awkwardly constructed, and of this appellant complains. It reads:

"We the jury do agree and fine the defendant guilty and fix his fine at three years confinement in the state penitentiary."

While it is oddly stated and grammatically incorrect, it would be practically impossible for any reasonable person to misunderstand the meaning of the jury. Had the appellant objected to the form of the verdict at the time it was read In court and before the jury was dispersed, the court would have required the jury to retire to its room and reform the verdict, but in failing to ask this, the appellant waived his objection, and cannot now be heard to complain of the grammatical defects of the verdict.

[4] One of the jurors who tried the case was a distant relative of the deceased Olvin Houston, but at the time he was accepted on the Jury and tried the case he did not know of the relationship, and did not regard himself as related until after the trial was over and the question was raised by counsel, whereupon the commonwealth's attorney approached the discharged Juror and inquired If he was related to the deceased, and was answered In the negative. An investigation was then had in open court to determine whether the juror in question was of kin to the deceased. Several witnesses, including the juror, were called, and while it appears that the juror was in fact related to the deceased, it equally well appears that the relationship was wholly unknown to the juror at the time he was serving on the Jury, and he was not therefore influenced by it in any manner whatever. A Juror who does not know of or recognize the relationship between himself and a defendant, or other party, to an action cannot by any course of reasoning known to us be biased or influenced thereby. If on the investigation had in the circuit court it bad appeared that the Juror knew of the slight relationship which existed between him and the deceased, we would be much Inclined, in a case like this, to set aside the verdict.

[6] On a review of all the evidence in the record, we incline to the opinion that the great weight of the evidence is in favor of the defendant, and we wonder what influenced the jury to find him guilty unless it was the evidence of Grant Wright. The testimony of this witness was so palpably untrue with reference to the liquor which he and his uncle had obtained, as well as other matters which transpired during the day preceding the homicide, that we can scarcely believe the Jury attached much Importance to It. Defendant appears to have been a sober, peaceable citizen, and good officer. The deceased, while bearing a bad name, was intoxicated and armed with a deadly weapon at the time of the difficulty. It was the duty of the officer to arrest Houston, ' but according to the weight of the evidence, Houston declined to be arrested, and manifested a disposition to fight. Under such circumstances the officer had the right to use such reasonable force as was necessary to overcome the resistance offered, even to the taking of the life of the deceased. One of the age and experience of Houston must have realized the danger of the life he was leading and the menace he was to the community. Too much consideration should not be given to those who deliberately arm themselves with deadly weapons and willfully intoxicate themselves and start out to terrorize the community. While we find no prejudicial error in the record to justify the' court in reversing the judgment of conviction, we incline to the opinion that this is a case which might properly be presented to the chief executive of the state for clemency. Judgment affirmed.

End of document

Grant and Nathaniel "Nathan" were sons of Olvin's sister, Hannah Houston and Alexander Wright. I thought they both left the area and went to West Virginia. I know for sure Grant did. and I am thinking, but not looking at documents that Nathan went with him. They were out drinking and scuffling around and someone (maybe Nathan) but Grant in a bear hug. Grant hated this and was able to work his pocket knife out of his pocket with the intention of stabbing the arms and making the person holding him let him loose. Instead he stabbed himself and died 8 days later from peritonitis. He was brought back to Millstone and buried in the Five Fawns Cemetery.

Thanks for sharing, but if he gives his ok, I will put it on the blog. I used to do a story every day but some emails and commits just made me feel it wasn't worth it so I stopped.


December 16, 2012

From Jonathan McCleese

Permission granted! Tim said to feel free to use the story on your blog if you'd like. Please give credit to Tim Alderman & the descendants of Herman McCleese for providing it. If you'd like, you can direct anyone seeking more information on the McCleese family to the McCleese Family Genealogy page on Facebook.

Thanks for sending me all of that additional info! I love details and they make stories come alive for sure. You have done such a great job on your blog! I think your work is just fantastic and I'll probably be dropping by there just to read the great tales of old.

Jonathan McCleese

 Thanks for Jonathan McCleese and Tim Alderman for sharing another version of the death of Olvin Houston.