Shawn Alexander: Say his name – Fred Harvey Smith (Column)

When Trayvon Martin was shot and killed by George Zimmerman in February 2012, many people throughout the country exclaimed that Martin’s death and Zimmerman’s acquittal was this generation’s Emmitt Till, remembering the brutal 1955 murder of Till and the acquittal of two of his killers, J.W. Milam and Roy Bryant. 

Unfortunately, there are numerous Till moments in American history. Racial violence has been omnipresent in American history, and in far too many of the incidents, the perpetrators of the crime are acquitted or not even brought up on charges. When I think of such cases I am often haunted by the heinous murder of Fred Harvey Smith here in the land of John Brown in May 1936.

Fred Smith, 15, and his brother Chester, 11, were fishing at Horseshoe Lake outside of Oswego on the morning of May 20, 1936. Having no luck, they headed home via a well-known route, cutting across the Mosler property just east of the lake. On this day, Cleo Mosler stopped the two boys with a 12-gauge shotgun in hand. 

Jumping out of his granary where he was hiding, Mosler ordered the Smith brothers to put their hands up. Despite compliance, Mosler shot Fred in the abdomen. 

After hitting Fred with a shotgun round at close range, Mosler left the scene to get the sheriff to arrest Fred; despite no evidence, he claimed they were chicken thieves. Forty-five minutes later, Mosler and the sheriff returned to the scene with Fred clinging to life, saved only by the basic attention his frightened younger brother was able to offer. 

Upon finding the bleeding Fred, the sheriff made no arrests. He instead took the Smith brothers to their home, where Fred would die a short time later.

Initially, Cleo Mosler was not under the threat of prosecution for the murder. The county attorney did not feel it was worth the time as he doubted a favorable verdict in such an area of Kansas. As he stated, “the sympathy of the white farmers in that section of the state is with the killer.”

While Kansas had a history of racial prejudice and racial violence, the southeastern corridor had a particular reputation in the early 20th century. Three years before Smith’s murder, Sam White, a Black farmer near Parsons, was told to vacate his farm for no other reason than he was prosperous. A few days after the warning, his house was burned to the ground and White’s body was found in the well located on his farm. There was little to no investigation into the incident.

A couple of months before Mosler murdered Fred Smith, a Black worker was found dead in his employer’s basement. It was ruled a suicide, but the community understood he was “familiar with the wife of his employer,” who was away in Kansas City the day he was killed.

Additionally, in Coffeyville, a town near Parsons and Oswego, there was an attempt to remove Black students from the integrated high school in 1924. Elisha Scott, an attorney from Topeka who was also a member of the local and state NAACP, took on that case and prevented the expulsion of the Black students. Finally, in 1927, also in Coffeyville, there was a race riot following the accusation that two Black boys raped two white girls. Scott and the NAACP again got involved, cleared the boys of the charges and pointed the eyes of the community toward two white boys who were guilty of the assault.

Scott and the NAACP jumped into action again in the wake of Fred Smith’s murder. Scott pressured the county attorney to take on the case. The NAACP and community members of Parsons organized the Fred Smith Legal Aid Society and raised funds to offset the costs of the trial, which would help persuade the county attorney to pursue the case.

Kenneth Smith, a University of Kansas law student and no relation to Fred Smith, became the director of subscriptions for the Society. The young student coordinated their efforts with Scott, who wrote the NAACP headquarters and the recently created Legal Department of the organization for support. A young Thurgood Marshall, assistant special counsel for the NAACP, committed $250 dollars for the prosecution’s funds and began publicizing the case through their national connections. The Pittsburgh Courier, the Amsterdam News, and other national Black newspapers took special interest in the case and started discussing it within their pages in the later months of 1936 and early 1937.

Kenneth Smith also traveled the state giving talks to local communities, including one at KU and in Lawrence proper, as well as Coffeyville, Parsons, and Independence discussing the case and raising funds for the Legal Aid Society.

In August 1936, Cleo Mosler was brought up on charges for Fred Smith’s murder after an inquiry determined he had “feloniously and unlawfully killed” Fred by shooting him with his shotgun. With the charge, it was deemed that Mosler would stand trial. He was arraigned and released on $5,000 bond.

Preparation for the trial went on for numerous months, and throughout that time, Mosler’s story changed repeatedly. At one point he claimed he did not know the Smith boys. At others he said he knew them as known chicken thieves and was protecting his property. Later, he stated he shot Fred because he was running away after he had told him to stop and raise his hands, a story that was later contradicted by the coroner’s evidence. Again altering his story, Mosler claimed he fired upon Fred in self-defense because the teenager pulled a knife from his hip pocket. No weapon was found at the scene, though one was later presented to the coroner by an undersheriff.

Nearly a year after Fred Smith’s death, the trial began with much anticipation, curiosity and scrutiny. The courtroom was filled with spectators, Black and white, from the opening consideration of jurors to final arguments. The county attorney, Glenn Jones, appointed Scott as a special prosecutor on the case and they presented the evidence together.

They accused Mosler of first-degree murder and sought for the jury to decide between life imprisonment or the death penalty. They pushed the accused on his ever-changing story and claimed that Mosler lay in wait for the boys to cross his property. The key witness for the prosecution was Chester Smith, Fred’s younger brother, who retold the story of fishing and crossing the Mosler property as they and others had done countless times. He denied stealing chickens, refuted the accusation that Fred possessed a weapon, and stated they complied with Mosler’s request and did not run away. 

The defense relied on character witnesses for Mosler, the assertion of self-defense, and the undersheriff claiming he found a small pocketknife on the victim but failed to provide it to the coroner immediately. 

In his questioning of the accused, Scott asked Mosler to demonstrate how he was holding his weapon. Mosler gestured that he pointed his shotgun downward, not at the teenager, implying that he had no intention or premeditation to kill Smith. When Scott retorted that holding the weapon in such a way would not have resulted in Smith being shot, but rather the shotgun round would have gone into the ground, Mosler quipped, “Well it didn’t.” 

Scott, believing that he had Mosler on shaky ground, began to push a bit more only to have the defense issue an objection on the grounds of intimidation. It was sustained by the judge and the questioning ended. The trial then went into closing arguments and jury deliberations.

After 12 hours of deliberations the jury returned to an overflowing courtroom to render a not-guilty verdict. 

Despite the stronger evidence against Mosler, the jury decided after multiple votes that he had acted in self-defense, even though there was no solid evidence that Fred Smith possessed a knife or threatened Mosler in any way. 

Here we sit nearly 90 years after the murder of Fred Smith and the acquittal of Cleo Mosler, still remembering victims of racial violence and watching the justice system fail them time and time again. As we remember the names of victims in today’s headlines, Trayvon Martin, Michael Brown, Sandra Bland, or George Floyd, let us also remember Fred Smith who was unjustly murdered in southeastern Kansas, whose trial captivated the state for nearly a year and who has been lost in the pages of history.

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