The Trial of James Fentress Sr. for Murder

Date: [unknown] [unknown]
Location: Smith, Tennessee, United States
Surname/tag: Fentress

On 3 October, 1835 James Fentress Sr. shot and killed his brother-in-law William Walker (who was also James' immediate neighbor) in Smith County, Tennessee. This is the story of this event and the various legal proceedings and people involved.

Contents 1 Summary 2 The People Involved 2.1 James Fentress Sr. 2.2 Cynthia (Walker) Fentress Sr. 2.3 Sarah P. (Fentress) Williamson 2.4 Edward Fentress 2.5 Mary L. Fentress 2.6 Cynthia L. Fentress Jr. 2.7 Susan Fentress 2.8 No other children 2.9 Old Mrs. Walker 2.10 William Walker 2.11 Elisha Walker 2.12 Wilson Y. Walker 2.13 George W. Walker 2.14 John N. Williamson 2.15 John Y. Roper 2.16 Thomas Dias 2.17 John A. and Bird Debow 2.18 There were about 17 other people 3 Sources 4 Acknowledgement

Summary

in 1835, James Fentress Sr. (abt.1777-1860) lived with his wife, Cynthia L. (Walker) Fentress Sr. (abt.1792-abt.1872), and children in that part of Smith County, Tennessee which later became Trousdale County - probably not far from Dixon Springs.  James was probably about 58 years old at the time - ref. 1850 census.

Note that page numbers in the following summary refer to page numbers in the principal source document^[1].  This principal source document is a 42 page record of the original trial which the circuit court supplied to the state supreme court when the case was appealed.  A transcript of most of that document is included in the source citation.

On 3 Oct 1835, James Fentress Sr. shot and killed his brother-in-law William Walker (page 2).  There are several references in the text to a "trial before the magistrates" which apparently was to determine whether James Fentress should be jailed pending more formal proceedings.  This took place on the afternoon of the shooting (page 21).  James Fentress was put in jail the same evening as the shooting pending an indictment and jury trial (page 8).  A grand jury was empaneled on 12 October in the Smith County court in Carthage, Tennessee to inquire as to whether charges should be laid against James Fentress.  This lasted two full days and a bit (12-14 October, 1835).  A ludicrously verbose bill of indictment was returned by the grand jury saying that he should be charged for one count of murder and one count of manslaughter (pages 2-4).  The trial commenced the next day and lasted 5 working days (15-20 October) at the end of which the jury returned a verdict of not guilty to murder but guilty of manslaughter and recommended a 3½ year prison sentence (pages 4-6)^[2].  James Fentress was granted bail pending sentencing with John Y Roper and John Williamson providing surety.  James had been in jail from the evening of the shooting until the day of the verdict (3 Oct 1835 to 20 Oct 1835) (page 8).  At the sentencing on 24 October, James requested a new trial.  This was refused whereupon James requested that he be allowed to appeal the decision to deny a new trial to the State Supreme Court.  This was allowed and James was again released on bail with John Y Roper and John Williamson providing surety (pages 6-8).  The circuit court minutes of the grand jury proceedings and of the jury trial do not contain any mention of the testimony of witnesses but the "Bill of Exceptions" document prepared for the state supreme court does contain these testimonies (pages 8 to 34).  Note that the circuit court clerk has included an index to all the characters in this drama on page 41.  As a matter of interest, the circuit court clerk charged $13.50 to make the handwritten copy of the trial record^[1] - 13,500 words at 10 cents per hundred words.

A record of whether or when the matter was considered by the state supreme court or what decision they made has not been found.  But according to the Smith County circuit court records, Vol. F (1836-1838)^[3], James Fentress got his new trial starting on 18 August, 1836 and on 23 August he was found not guilty of manslaughter^[3].

The People Involved

The principal source document^[1] turns out to be a good trial drama and a rewarding study of Tennessee justice in the 1830s.  But it is also valuable as a genealogical source about James Fentress Sr. and his extended family and some of his neighbors.  Each of these characters is listed below along with what we know about them from this document. Page numbers refer to the page numbers of the principal source document^[1].

James Fentress Sr.

Was a neighbor of Bird Debow "for thirty years" (page 34).  It is not certain but one could reasonably guess that this neighborliness was all in Smith county and that James had therefore arrived in Smith County prior to about 1805.  John Debow said "Fentress has a large family of children, eight or ten" (page 33).  Five of these are mentioned by name in the document - see names following.  James was a farmer (Yoeman - page 2) and raised tobacco (multiple references), corn (page 34) and hogs (pages 16 and 34).  James had moved his family (from presumably somewhere else in the same general area) to his current house and land about three years prior to Oct 1835 (page 24).  James did NOT testify as a witness at his own first trial.

Cynthia (Walker) Fentress Sr.

Wife of James and sister of William Walker and George Walker :  She is not identified by name in this document - only as Mrs. Fentress (pages 17 and 22).  She did NOT testify as a witness at the first trial.

Sarah P. (Fentress) Williamson

Was a daughter of James Sr. and Cynthia Sr. - she refers to the defendant as "her father" in her testimony and also to "her uncle Wm Walker" (page 30).  Sarah was married "August last" (Aug 1835) to John Williamson (page 30) so she was of marrying age.  She testified as a witness at the first trial (page 30).

Edward Fentress

Was a son of James Sr. and Cynthia Sr. (page 34).  He was old enough to help his father till the fields in 1833 and had left home to go out on his own in 1833 or 1834 (page 34).

Mary L. Fentress

Was a daughter of James Sr. and Cynthia Sr. (page 24).  Note that the middle initil "L." may be a confusion with the middle initial of her sister Cynthia (who is also show with the middle initial "L.").  The court record observes that Mary was a girl about 15 years old.  Mary testified as a witness at the first trial (pages 24-27).

Cynthia L. Fentress Jr.

Was a daughter of James Sr. and Cynthia Sr. (page 27).  Cynthia testified as a witness at the first trial (pages 27-30).

Susan Fentress

Was a daughter of James Sr. and Cynthia Sr. (page 32).  The court record observes that Susan was "within a few months of twelve years old" (page 35) so possibly born between December 1823 and March 1824.  Susan was proposed to testify as a witness at the first trial and was examined by the court and found to be unsuitable due to her age (page 35).

No other children

were mentioned in the court record of the first trial.  James Fentress Jr. is thought to have been born in the early 1830s but there was no mention of an infant or todler in the house.

Old Mrs. Walker

(name not otherwise given) is described as "the mother of deceased and also of defendant's wife" (bottom page 8).  Presumably she was also the mother of the brother of the deceased George Walker (page 14).  Hence the deceased (William Walker) was the brother-in-law of the defendant (James Fentress Sr.).

William Walker

(the deceased) Brother-in-law (as described just above) of James Fentress Sr. and nearest neighbor of James Fentress Sr. (their houses were about "fifty yards" (45 m.) apart - page 27) and father of Elisha (page 8) and Wilson Walker (page 14).  William had a wife and daughters (page 12) but they were not named.

Elisha Walker

Son of William Walker (page 8) and nephew of Cynthia Fentress Sr.  Was from appearance 20-25 years old (page 12 top).  Elisha appeared before the grand jury (page 4) and testified as a witness at the first trial (pages 8-12).

Wilson Y. Walker

Son of William Walker (page 13) and nephew of Cynthia Fentress Sr.  An age was not given for Wilson but Mary Fentress in her testimony described both of Walker's sons as "young men grown" (page 26).  Wilson appeared before the grand jury (page 4) and testified as a witness at the first trial (pages 13-14).

George W. Walker

Brother of William Walker (page 14) and thus brother of Cynthia Fentress Sr.  George was a near neighbor to James Fentress Sr. living 300-400 yards (270-370 m.) from him (page 14).  George was the son-in-law of Richard Brown Sr. (page 16 bottom).  George appeared before the grand jury (page 4) and testified as a witness at the first trial (pages 14-15).

John N. Williamson

Son-in-law to James (husband of daughter Sarah (Fentress) Williamson).  John was married "August last" (Aug 1835) to Sarah Fentress (page 30).  John pledged surety for James' various bail bonds (page 6 and 7) and testified as a witness at the first trial (page 31).

John Y. Roper

John pledged surety for James' various bail bonds (page 6 and 7) so was clearly a trusted friend.  (Unrelated to the trial but this may or may not be the same person as "John F. Roper" who provided assistance to Cynthia Fentress Sr. in Feb 1872 when she was attempting to obtain a soldier's widow's pension.)

Thomas Dias

A near neighbor (page 21) who came to assist James on his request (page 32).  Dias appeared before the grand jury (page 4) and testified as a witness at the first trial (pages 32-33).

John A. and Bird Debow

Both were long time neighbors (about thirty years) of James Fentress and both testified as witnesses at the first trial (pages 33-34).

There were about 17 other people

who testified as witnesses at the first trial.  Probably all of them were unrelated and most of them would have been neighbors.  Another dozen people were named as officials of various sorts and the grand jurors were named (page 1) and jury members for the first trial were named (page 4).

Sources

^{[1] [2] [3]}

1. ↑ ^{1.0 1.1 1.2 1.3 1.4} After the first trial by jury was completed and a request by James for a new trial was refused, James requested and was granted leave to appeal the refusal for a new trial to the state supreme court. The circuit court clerk made a copy of the proceedings of the first trial including all the testimony of witnesses and the charge of the judge to the jury. This handwritten copy can be found in the Tennessee State Library and Archives in their records for State Supreme Court cases. The 42 page scanned document as a pdf file handwritten court record can be found on-line here.
   Or a copy of the file can be requested from David Fentress.
   There follows immediately below a transcription of that document which has maintained the original page structure.
   
   Page 1
   
   TENNESSEE - Pleas before the Circuit Court for Smith County at the court house in Carthage, in the county aforesaid on the second monday in October eighteen hundred and thirtyfive, present the honorable Samual Anderson judge.
   The State of Tennessee ysett(?)  |
               vs                                         |  Indictment for Murder
   James Fentress defendant          |
   To wit. "Be it remembered, that at a Circuit Court of Law and Equity, began and held for the county of Smith in the third judicial circuit of this State of Tennessee, at the court house in the town of Carthage in the county aforesaid, on the second monday being the twelfth day of October anno domine eighteen hundred and thirtyfive, and of the independance of the United States the sixtieth, present the honorable Samuel Anderson judge of the eleventh judicial circuit, and here presiding by virtue of an interchange of ridings with the honorable Abraham Caruthers: Proclamation being made, court was duly opened and thereupon, Samuel P. Howard Sheriff of said county, returned the Venire facias, and certified unto court, that he had duly summoned the following gentlemen good and lawful men of Smith County, to serve as jurors at the present term of this court, and who had been nominated & appointed for that purpose by the worshipful court of Pleas & quarter Sessios of Smith County, at the May Sessions last past; Said Venire facias containing the list of said jurors, having been handed to said Sheriff by Jonathan Pickett clerk of said court of Pleas and Quarter Sessions towit Peter Harod, George T. Wright, James McNurray, Samuel T. Coker, Thomas Bridges, James Kitchen, Moses Eastes, John Payne, Don C. Finley, John Trousdale junior, Milton Apple, James Gwalburg, Wesley Harvey, William Floyd, John Donsho, Thomas Allen, Thomas Allison, David Tysee, Richardson Cartwright, Beneon P. Lipscomb, Edmond S. Bradley, Brice F. Marten, Elijah Haynie, Exusn(?) Whitley, Joseph Winston and Henry B. McDonald all of whom this day appeared in open court (except Thomas Allison) and from whom the following gentlemen,
   
   Page 2
   
   good and lawful men of Smith county were duly elected empanneled and sworn as a grand jury of inquest for the body of the county of Smith during this term, towit, Henry B. McDonald (who was by the court appointed foreman), Edmind S. Bradley, Benson P. Lipscomb, Joseph Winston, John Trousdale junior, John Donoho, John Payne, Milton Apple, Don C, Finley, David Tyree, Exum Whitley, Elijah Haynie and Peter Harod : And the grand jurors aforesaid having been charged by the court touching(?) their present Service retired to their room attended by Thomas W. Page a duly chosen and sworn Constable. Said Sheriff also certified that George Rison who was also named in the list of jurors, had departed this life since his appointment and that George Baker also named as a juror on said list, had not been found in his county, Said Sheriff further certified, that he had summoned Benjamin Blades and Thomas W. Page, constables, as in said Venire also commanded, the latter of whom was duly sworn to attend the grand jury ----
   ===========|  The grand jury came into court and presented a bill of
   14th October |  indictment against James Fentress for Murder, endorsed by
   ===========|  their foreman "a true bill." (which is as follows) towit State of Tennessee, Smith County Circuit Court for said county, October term, in the year of our lord on thousand and eight hundred and thirtyfive. The Grand Jurors, for the state of Tennessee elected, empannelled, sworn and charged to inquire for the body of the county of Smith aforesaid, upon their oath present, that James Fentress, late of said county, yeoman, on the third day of October, in the year of our Lord one thousand& eighthundred and thirtyfive , (not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil) with force and arms, in the county aforesaid, in and upon one William Walker in the peace of God and our said state then and there being feloniously wilfully deliberately, unlawfullypremeditatedly and of hie malice aforethought did make an asaualt : and that the said James Fentress a certain Rifle Gun of the value of fifteen dollars, then and there loaded and charged with gunpowder and one leaden bullet, which Rifle Gun, he the siad James Fentress in his right hand then and there had and held to, at, against and upon the said William Walker, then and there feloniously, willfully, delierately, unlawfully, premeditatedly and of
   
   Page 3
   
   malice aforethought did Shoot and discharge, and that the seid James Fentress with the leaden bullet aforesaid, out of the Rifle Gun aforesiad, then and there by force of the gunpowder, shot and sent forth as aforesaid, the said William Walker, in and upon the left breast of him the said William Walker a little above the left pap of him the said William Walker, then and there feloniously, willfully, delierately, unlawfully, premeditatedly and of his malice aforethought, did strike, penetrate and wound, geraig(?) to the said William Walker, then and there, with the leaden bulletaforesaid, so as aforesiad shot, discharged and sent forth out of the Rifle Gun aforesaid by the said James Fentress, in and upon the left breast of him the said William Walker a little above the left pap on him the said William Salker, one mortal wound of the depth of ten inches and of the breadth of half an inch of which said mortal wound the said William Walker, then and there, at towit, in the county aforesaid instantly died : And so, the jurors aforesaid, upon their oath aforesaid, do say, that the said James Fentress, the said William Walker, in manner and form, and by the means aforesaid feloniously, willfully, delierately, unlawfully, premeditatedly and of his malice aforethought, did Kill and Murder in the first degree contrary to the form of the statute in such case made and provided and against the peace and dignity of the state. AND the Jurors aforesaid, upon their oath aforesaid do further present that the said James Fentress late of the county of Smith aforesaid, yeoman, on the day and year aforesaid, in the county aforesaid, with force and arms (not having the fear of God before his eyes but being moved and seduced by the instigation of the devil) in and upon one William Walker, in the peace of God and our said state, then and there being, feloniously did make an assault ; and that the said James Fentress with a certain Rifle Gun of the value of fifteen dollars, then and there loaded and charged with gunpowder and on leaden bullet (which Rifle Gun the said James Fentress, in both his hands then and there had and held) to, at, against and upon the said William Walker, then and there feloniously did shoot and discharge, and that the siad Jaimes Fentress with the leaden bullet aforesaid, out of the RifleGun aforesaid, then and there by force of the gunpowder sent forth and shot as aforesaid, the said William Walker, in and upon the left breast of him the said William
   
   Page 4
   
   Walker, a little above the left pap of him the said William Walker then and there feloniously did strike, penetrate and wound, giving to the said William Walker then and there, with the leaden bullet aforesaid, & as aforesaid shot, discharged and sent forth out of the Rifle Gun aforesaid, by the said fames Fentress, in and upon the left breast, above the left pap of him the said William Walker one mortal wound of the depth of ten inches and of the breadth of half an inch ; of which said mortal wound, the said William Walker then and there instantly died : And so, the jurors aforesaid, upon their oath aforesaid, do say that the said James Fentress, the said William Walker in manner and form aforesaid, in the county aforesaid, feloniously did kill and slay ; contrary to the form of the statute in such case made and provided, and against the peace and dignaty of the State.
   --- Samuel Yeager, attorney general for the State of Tennessee, in the sixth solicitorial district (endorsed) Elisha Walker, prosecuter - Wilson Y. Walker, Elisha Walker, Samuel M. Murray, Hugh Bradley, Richard Brown, George W. Walker, Hiram H. Johnson, Frederick Uhls, William Kyle, Thomas Phelps and Lovett Dias, witnesses for the state and sworn in open court and sent before the grand jury.
   13 October 1835 - test. Har C. clk.(?)
   "A true bill", Henry B. McDonald, foreman of the Grand Jury.
   ============|  Came the attorney general for the State and the said defendant
   15th October |  James Fentress in proper person when said defendant was
   ============|  arraigned and charged on a bill of enditement for the murder of one William Walker, and thereupon said defendant for plea says he is not guilty in manner and form as charged in said bill of indictment, and of this he puts himself upon the County; and the attorney general for the state doth the like. Then came a jury of good and lawful men, towit, Leonard H. Cardwell, Alfred Bains, Andrew Jourancease(?), Taylor Whitley, Johnson Samson, Simon P. Hughes, Joshua Killibrew, Thomas T. Young, William A. Lack, Mastin Freeman, Warner Rucks and Nathan Bardone ; who were duly elected, tried and sworn, the truth to speak upon the issue of traverse(?) joined(?), and true deliverence to make between the State of Tennessee and the said defendant, James Fentress ; And afer hearing a part of the testimony, because
   
   Page 5
   
   the trial cannot be ended on this evening, the jurors aforesaid, are placed under the care and charge of Benjamin Blades, duly chosen and sworn for the purpose of keeping them together and apart from other persons, until tomorrow morning, half after seven Oclk. And the defendant was remanded to prison.
   ============|  Came again the attorney general for the state, and the said
   16th October |  defendant James Fentress, was again led to the bar, and then
   ============|  came also the same jury elected, tried, empanneled and sworn in this case on yesterday and who had been placed under the charge and care of Benjamin Blades, constable as aforesaid; when after the day spent in hearing testimony, because there is not time for the trial to be ended on this evening, the jurors aforesaid, are again placed under the charge and care of saaid Benjamine Blades, to be by him kept together and apart from other persons, until tomorrow morning half after 7 Oclk : And the defendant was remanded to prison.
   ============|  Came again the attorney general for the state, and the said
   17th October |  defendant James Fentress, was again led to the bar, and then
   ============|  came also the same jury elected, tried, and sworn in this case, and who had been placed under the care and charge of Benjamin Blades, constable on yessterday evening ; and after hearing the testimony and a part of the arguements of council, because there is not time for the trial to be ended, the jurors aforesaid are again placed under the care and charge of said Benjamin Blades, constable, to be by him kept together and apart from other persons until monday morning eight Oclk.
   ============|  Came again the attorney general for the state, and the said
   19th October |  defendant James Fentress, was again led to the bar, and then
   ============|  came also the same jury elected, tried, and sworn in this case, and who had been kept under the care of said Benjamin Blades, constable ; and after hearing the arguments of council, and the charge of the court, because there is no fime for the trial to be ended on this evening, the jury aforesaid are again placed under the care and charge of said Benjamin Blade and Robert Allen, constables, to be by them kept together and apart from other persons, until tomorrow morning. And defendant was remanded to prison.
   ============|  Came again the attorney general for the state, and the said
   20th October |  defendant James Fentress, was again led to the bar, and then
   ============|  came again the same jury elected, tried, and sworn in this case,
   
   Page 6
   
   and who had been kept under the care and charge of said Benjamin Blades and Robert Allen, constables as aforesaid, since yesterday evening ; And the jurors aforesaid, upon their oaths aforesaid do say that the defendant is NOT GUILTY of murder in the first degree, in manner and form as charged in the first count of the indictment ; but, the jurors aforesaid, upon their oath aforesaid, do further say, that the defendant is GUILTY OF MANSLAUGHTER in the manner and form as charged in the second count in the indictment, and they also say, that said defendant shall be confined in the Jail and Penetentiary house of the State of Tennessee for the period and term of three years and six months.
   --- The defendant James Fentress here in open court acknowledged himself indebted to the State of Tennessee in the sum of twentyfive hundred dollars, to be levied of his goods and chattels, lands and tenements for the use of said state ; to be to be void nevertheless, upon condition that he makes his personal appearance from day to day before this court, during the present term, to abide & perform the judgement of said court in the case of the State of Tennessee against him for homicide in killing said William Walker and not depart without leave of said court.
   --- Came here in open court John Y Roper and John Williamson and acknowledged themselves jointly and severally indebted to the State of Tennessee in the sum of twentyfive hundred dollars , to be levied of their goods and chattels lands and tenements, for the use of said State ; to be void nevertheless upon condition that James Fentress shall make his personal appearance before the court now in session from day to day during the present term, to abide and perform the judgement of said court, in the case of the State of Tennessee against him for homicide in killing said William Walker, and not depart without leave of said court.
   ============|  Came again the attorney general for the state, and the said
   24th October |  defendant James Fentress in proper person, when said defendant
   ============|  prayed the court for a new trial ; and after arguments had on the motion, by the attorney general, and the attornies for the defendant, the motion was overruled, and the court refused to grant a new trial. When, on motion of the attorney general, for judgement on the verdict of the jury, it is considered
   
   Page 7
   
   by the court, that said defendant, James Fentress, be confined in the jail and penetentiary house of the State of Tennessee, for the term of three years and six months, commencing on the second day of November next, and that the State of Tennessee recover against said defendant the cost of scist(?). And it is ordered by the court that the Sheriff of Smith County, have said defendant at said jail and penetentiary house on sisd second day of November. The defendant by his atourney, tendered his bill of exception to the opinion of the court, in refusing to grant a new trial, which was signed and sealed by the court and ordered to be made a part of the record. The defendant by his attorney prayed an appeal in the nature of a writ(?) of error, to the Supreme Court of Errors and Appeals held at Sparta in in said state, and to him it is granted.
   --- The defendant James Fentress here in open court acknowledges himself indebted to the State of Tennessee in the sum of twentyfive hundred dollars, to be levied of his goods and chattels, lands and tenements for the use of said state ; to be void, nevertheless, upon condition that he makes his personal appearance before the judges of the Supreme Court of Errors and Appeals for the State of Tennessee at the next ensuing(?) term of said Supreme Court held at the court house in the town of Sparta, on the first monday of August next ; or at such other time and place as may be appointed for the next term of said Supreme Court for the middle section or division of said state, and then and there to present an appeal in the nature of a writ of error, this day granted him to said Supreme Court, on a judgement rendered against him in the Circuit Court for Smith Sounty, on an indictment for homicide, in feloniously slaying one William Walker. And then and there to abide the order and judgement of said Supreme Court in the premises ; and not depart without leave.
   --- John Y Roper and John N. Williamson here in open court, acknowledged themselves jointly and severally indebted to the State of Tennessee in the sum of twentyfive hundred dollars, to be levied of their goods and chattels lands and tenements, for the use of said State ; to be void, nevertheless, upon condition that James Fentress shall make his personal appearance before the judges of the Supreme Court of Errors and Appeals for the
   
   Page 8
   
   State of Tennessee at the next ensuing term of said Supreme Court held at the court house in Sparta on the first Monday in August next, or at such time and place as may be appointed for the next term of said Supreme Court for the middle section or division of said State, then and there, to present an appeal in the nature of a writ of Error, this day granted to him in the Circuit Court for Smith County to said Supreme Court, on a judgement rendered against him on an indictment for homicide, in feloniously slaying one William Walker ; and then and there abide the order and judgement of said Supreme Court in the premises and not depart without leave.
   ============|  The account of Henry B. McDonald for entertaining jurors and
   27th October |  constables confined on the trial (of James Fentress) was
   ============|  presented and sworn to ; and being examined & approved by the attorney general, is allowed and ordered to be taxed in the bill of Cest(?) court(?). 184 diets @ 25¢ = $46. & 66 lodgings @ 12½¢ = $8.25 = $54.25 in all : fiftyfour dollars and twenty five cents.
   ============|  The account of James Alexander jailor, for keeping the
   28th October |  defendant (James Fentress) was presented and sworn to ; and
   ============|  having been allowed by the court it is ordered that the same be certified to the Treasurer of the state for payment to wit Keeping the defendant 17 days @ 37¼¢ = $6.37½ (and) 11 Turn Keys @ 50¢ = $5.50, $11.87½ in all, Eleven dollars and Eightyeight cents.
   --- --- --- ---- Bill of Exceptions --- --- --- --- --- ---
   Be it remembered that this cause (State vs James Fentress) came on to be tried this __ day of October 1835, before the honorable Samuel Anderson judge & when the following testimony was submitted to the jury on the part of the state towit
   ============|  son of the deceased said, defendant and deceased had been
   Elisha Walker |  quarrelling and abusing each other for about three years -
   ============|  that the dispute arose about the dower of old Mrs. Walker, the mother of deceased and also of defendant's wife - that defendant and the widow had swap'd about three years ago - that there had been no good blood between these parties since - that defendant had given deceased a cursing about once a week and sometimes oftener for about three years - that the defendant always began the quarrel, and that deceased never abused defendant or said anything in reply to his abuse for about eighteen months past - That deceased had not spoken to defendant since last christmas was(?) a year until on the day before he was killed as witness know of - That on friday, the day
   
   Page 9
   
   before he was killed defendant was a work in his tobacco patch about sixty yards from the house of deceased about 12 oclk near the lot fence and began to abuse decease, called him many hard names, such as whore master, old baptist etc. and said "that one Miller had whip'd him with a cow hide and cut all the skin off of his back etc. Witness said that defendant rubbed his back etc. saying that deceased had done do when Miller was shipping and that he cried "O.Lordy! O.Lordy!" Witness was at this time about two hundred and fifty yards distant from the parties in the tobacco ground - that deceased was nearer to witness than defendant - deceased usually spoke in a low tone of voice and defendant usually talked very loud - witness could not hear what deceased said, but could distinctly hear what defendant said to him. Defendant first began to throw rocks at deceased - he saw deceased afterwards stoop down in the creek to ger up a rock, and while in the act of getting it, defendant threw a rock at him ah=nd he dodged behind the corner of the fence. Defendant called for his gun , and one of his daughters brought it to him. Defendant then started in a brisk walk towards his own house and deceased followed him in a very fast walk. Defendant went on to the house and deceased stop'd at the road - Witness then went to where his father was and they both went up to defendants yard fence - his father dared defendant who was then in his house to come out and fight it out with him - saying he would fight(?) him with his gun - Witness also asked defendant to come out and fight him, but defendant would not come. Witness and his father then went back home. Defendant and his father lived about two hundred yards from each other. Witness afterwards on the same evening saw defendant at work in his tobacco ground, and his father went from his own housedown to the road near to where defendant was, and witness as too far off to hear what was said at this time - he saw his father in defendant's tobacco ground - Next morning (Saturday) little after sunrise aaid his father went down to the lot near the road where defendant was, and defendant began to curse and abuse him again, but his father did not say anything to him - Defendant talked loud and you might hear him half a mile - About 12 oclk the same day defendant was down at his lot, and his
   
   Page 10
   
   father went down to the road near to where he was, and defendant began to abuse him again, and they both quarrelled and abused each other very much, Defendant again called for his gun, which was brought to him ; defendant, howeverhad started to the house before he got the gun, his father followed on after him. Defendant said if he ever came on his premises he would make a window hole through him. His father stop'd at the road and went back home, and defendant went on to his house and put away his gun. In about an hour, and immediately after dinner, witness saw defendant down at his tobacco ground at work, he heard his father say "Yonder is the old rascal now without his gun and I will go and give him a whipping - saying that he had often tried to catch him and whip him, but never could catch him. That he always got his gun and run home. Witness was now at the house preparing to go to a camp meeting in the neighborhood. His father went down to where defendant - as his father went he saw him stoop down in the road, whether he picked up anything or not, witness does not know - his father got over into defendant's tobacco ground and went towards defendant - Witness heard defendant call for his gun, his father still advanced upon him - defendant started towards his house, they went pretty fast - defendant got into a run, thinks his father went in a fast walk, was some twenty or thirty yards behind defendant. One of defendant's daughters brought him his gun, for he kept hollering for it - the gun was handed to him at the fence where he got out of the tobacco ground into the road - defendant still retreated after he got the gun, he crossed the road, and got over the yard fence and went into his house - His father still followed without stopping until he got to the yard fence, when he got upon the yard fence he made a stop for a short time, then got down and walked within about ten or fifteen feet of the door and stopped and set the stick out one end before him on the ground and holding the top end with both his hands, apparently leaning on the stick. Witness was at this time sitting on the door sell at home washing his hands -
   
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   he got up and stepped into the house, and was standing wiping his hands at the towel when he heard the gunfire he stepped out at the door, and saw his father falling and his face had nearly reached the ground, his father fell nearer to, and more in front of the door than where he was when he last saw him standing leaning upon the stick. Witness ran over as soon as he could and when he got there he turned him over he was dead and had bled very much - Defendant had shut the door - Witness had kept his eyes on his father during the while time from the time he left the house until he came to where he stood leaning on the stick, and witness went into the house to wipe his hands - Witness being interrogated says he has often seen his father go after defendant to whip him, but defendant would always call for his gun and run home and get into the house - his father would follow him sometimes to the road and sometimes to defendants yard fence, but never could catch him - That his father said when he started and said he would go and whip the old rascal now that he has not got his gun, that he had often tried to catch him and whip him, but he always would run and get his gun, and keep out of his way. Said defendant always began the quarrel and his father would not say anything in reply to his abuse - That defendant had been in the habit of cursing and abusing his father about once a wee upon average and sometimes two or three times a week for the last eighteen months - that his father had not spoken to defendant for that time. Witness further said upon sross examination that while his father was at breakfast that morning before was killed, he heard him say that he would whip defendant, that he had borne his abuse as long as he could. Witness replied to him in a jocular manner, that he did not think they would fight, because both were to great cowards. Witness further stated that his father had been drinking for about a week - he drank by spells - he had been sober for some time before that week - whenever he drank it was by spells -
   
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   Witness said defendant never came to his fathers' fields to quarrel with him, nor did defendant ever attempt to drive his father from his work - Said he had seen his father very often go to where defendant was at work and defendant would retire to his house - could not say how often this had happened - it had not happened for eighteen months before the killing - Witness stated when he took his eyes off his father in defendant's yard his eyes were not off of him more than a minute or about a minute. He further stated that his father got the tobacco stick in defendant's tobacco ground. He further stated that defendant often came near to his father and abused him very grossly, accused him of going to negro quarters, and caught the venerial disease He did this in the hearing of the family of the deceased towit, his wife and daughters, and he did it at one time when ther was company at the house. This witness was from appearance between twenty and twentyfive years old - no proof was given of his age - weight would be about one hundred and fortyfive pound. When he and his father were proposing to fight at the defendant's house on friday before the killing, defendant observed he would not fight him (deceased), for he was rotten with venerial, and he (defendant) would not fight a corpse - Defendant told witness at the same time, that his father was a dissgrace to him, and that he witness ought to kill him. Witness said Fentress was rather larger than his father.
   ==================|  Says he was at camp meeting and was sent for to go to
   Samuel D. M. Murray |  defendants - Went and set as one of the justices that
   ==================|  composed the examining court - Said defendant admitted he killed the man but that he did it in self-defence. Deceased was shot about half way between the nipple of the left breast and the collar bone, the bullet came out near the lower left edge of the right shoulder blade, broke the shoulder and the ball lodged and stopped at the skin - witness cut it out, was very muched brused. Upon the trial before the magistrates, the smallest rock and the stick which are now shown was produced as being the weapons used by Walker in the
   
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   fight - is certain they are the same, because he (witness) took possession of them after the trial was over ; and kept them eversince, and brought them with him to court. The place in the yard where deceased was lying was about eightiin inches lower than the level of defendants floor. Witness said a ususl load of power in the ordinary atmosphere would all burn up within four or six feet from the muzzel of the gun. Witness being called back said it was a very windy day, and that the wind blew very strong from the South - Witness examined the deceased clothes for weapons and found mothing but a twist of tobacco - He also examined in the house for blood and also the platform before the door and found none. He also said that Mary Fentress on the trial before the justices did not speak of but one stone being thrown by defendant at Walker, and said that it rolled under the cupboard when it was thrown.
   ==============|  (Son of deceased) Said the parties some years back had
   Wilson Y. Walker |  quarrelled about the land, after they fell out defendant
   ==============|  abused his father about once a week and sometimes two or three times a week up to time of deceased's death that his father never made any replies to defendant's abuse - his father always spoke low and defendant very loud - had often seen his father go after defendant into his fields to whip him, when he would be cursing him, but defendant would always get his gun and run home into the house, and threatened, if his father came upon his premises he would kill him or shoot him, but his father never would catch him - had heard his father tell defendant if ever he caught him out in company he would thrash him for his abuse to him - heard defendant abusing his father on friday - heard him repeat over the story about Miller's whipping him, in substance the same as was stated by Elisha Walker - Was about three of four hundred yards off - The parties had another quarrel Saturday morning before breakfast, and another about twelve oclk, but witness was too far off to hear what was said. Soon after saw his father going down to where defendant was in his tobacco ground - Was at this time about four hundred yards off at work in the tobacco - heard defendant abusing his father - saw his father cross the road - go to the fence, and get over the fence - Defendant called to his daughter to bring him his gun - he started to the house - met his daughter with the
   
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   gun - he set off in about half run towards his own house talking very loud and abusing his father, and his father followed in after the defendant in a very fast walk, with a tobacco stick in his hand, at the distance of about about twentyfive or thirty yards behind - defendant kept constantly looking back at his father as he was going along - Defendant went on, crossed the yard fence which was about twentyfive or thirty yards from the house, and went on with his gun in his hand, almost in a run into the house - When his father came to yard fence he stopp'd and set on the fence a short time, how long he could not say, but it was a very short little while - he got down off the fence and advanced with the tobacco stick in his hand until he came within about twelve or fifteen feet of the door where he stop'd - set one end of his stick upon the ground, holding the other end in both of his hands, and where he last saw him fefore he heard the gun apparantly leaning upon his stick with his face to the door and directly in front of it. His father stood there about five minutes = WWitness had heard the horn blow for dinner and told the hands, that they must finish the work before they would go to dinner, and witness commenced picking up tobacco plants which had been cut, and had picked up five or six plants, when he heard the gun fire - looked and saw his father falling in the yard, his face had nearly reached the ground - Witness then started and run as fast as he could to his father, but before he got there, his brother Elisha had got there and turned him over - His father fell directly before the door, and across the door, and his head up the hill, and it was at the south door. His father fell at the same place where he was standing leaning upon his stick before the gun fired. Witness'e eyes was not off of his father more than about one minute before he heard the gun fire. Witness saw his father and brother Elisha at the yard fence of defendant the day before - Elisha came home, but this father had been drinking for about a week before he was killed, and at the time he was killed, the jug was nearly empty.
   =============|  (Brother of deceased) Says he lives about three or four
   George Walker |  hundred yards from defendant and deceased - had frequently
   =============|  heard defendant cursing and abusing deceased, as far as to his house. Could not hear deceased say
   
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   anything - had frequently seen defendant standing at his own house and deceased at his, and defendant was cursing and abusing deceased, and he making no reply. Had heard defendant accuse deceased of going at night after negro women. Said the deceased and defendant had been on very bad terms ever since defendant moved to that place. - Witness in order tp keep peace offered defendant two hundred dollars for the land - defendant refused to take it - On the day before the killing witness told Hiram Johnson to offer defendant three hundred dollars.
   =============|  , a little boy, said that in February or March last he had
   Orthiel Johnson |  heard defendant say that if Walker ever pressed(?) upon him
   =============|  he would kill him - that when defendant first came there to live, Walker had been very troublesome to him, and that he could hardly drive him with double lines, but he had then got him so that he could drive him with single lines.
   =============|  stated He arrived at Fentress' some time after Walker was
   Thomas Phelps |  dead and found the body lying a little to the right of the
   =============|  door as you enter - the head was farther to the right and farther from the house than the feet, it was also on higher ground than the feet. It was about three feet from the end of the platform. He saw Squire M. Murray cut out the bullet from under the skin, about the lower part of the right shoulder blade. The ball seems to have entered about midway between the left pap and collar bone, making a descent in passing through the body of about four or five inches - Saw no signs of any powder burn of powder stain. Walker had on a very dirty shirt, such an one as a man must have after having worked during the week in a tobacco field - He was in his shirt sleeves - The blood had covered the bosom of the shirt all around the wound, and indeed pretty much the whole upper part of his body was covered with a gore of blood, and it had even run into his shoes - He also searched the house for blood, but found none except he saw some blood upon the steps, which from the sand that was mixed with it when he saw it, appeared like it might have been brought there by a foot that had been trod in the blood on the ground and then steped on the puncheon(?). On cross examination he said that powder would stain eight of ten feet from the muzzle of the gun which might be seen by an experiment on snow which he had frequently made.
   
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   ==============|  said that he heard a conversation to this effect about six
   James Flanagan |  months before Walker was killed, Fentress told one Hughes,
   ==============|  that Walker had come at him in his own enclosure to beat him - that he (Fentress) had a sword and struck at Walker twice with it, but missed him - but if Walker ever came at him again in the same manner and inside of his enclosure that he would kill him.
   ============|  , said - That some time about June or July was a year ago.
   Rowland Clark |  he was at Fentress' house - that he heard defendant appaently
   ============|  in a passion say, that Walker had killed some of his hogs, and if Walker ever came into his yard fence abusing him and his family again, he would put a ball as near his heart as he could if his gun would go off. He also said that he had heard Walker call Fentress a rogue and a rascal. That he had seen Walker frequently following Fentress towards his house when they were quarrelling, but that he had not seen Walker go inside of Fentress' yard.
   ==================|  Said - That at one time he saw Fentress throw stones at
   Richard Brown Junr. |  Walker when they were fifty yards distant from each
   ==================|  other - That at another, he heard Fentress say that he lived where he did to aggrivate Walker. That at another time, about eight months ago, he heard Fentress call Walker a damned rogue, that he would be hung and that he defendant would be there to put the rope round his neck. This last was said to Walker in Fentress' tobacco field as witness rode by - witness had hon heard what was said before, he did not stop and did not hear Walker answer, for he was about three hundred yards from them.
   =================|  Said - He heard Fentress say he would not sell his land,
   Richard Brown Senr. |  that he would not be drove from it, but that he would
   =================|  stay there to fret Walker. That his son in law George Walker, the brother of deceased, had frequently proposed to buy it, but that Fentress would not sell it for less than four hundred dollars, which he considered more than its value. He examined for blood but found none in the house at any place. He said that powder will stain from six to ten feet from the muzzle of the gun. He believed that the patch would in ordinary cases be shot from eight to ten feet. He and others looked for a patch and found none.
   
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   ============|  - said. That some time last summer he was at Walkers - that
   Albert Burton |  Walker's mule jumped into the lot of Fentress. That Walker
   ============|  saw the mule going into defendants pasture lot and used no efforts to get it out - Fentress drove the mule out and said to Walker, your niggardly rascal if you do not keep your mule out I will kill it - and said that Walker was - damned old rascal and was not fit to keep company with anybody but negroes.
   ============|  said - That when he arrived at Fentress' there were many
   David Burford |  persons around the dead body - He asked for Fentress and was
   ============|  told that he had locked himself up in his house, but if he would go around to the back door he might be admitted. Witness accordingly went around to the back door and applied for admission which was refused. Mrs. Fentress enquired when he knocked who he was, he did not tell his name, but insisted on admittance, she still asked who it was, he refused to tell her, She enquired the third time who he was, he still did not tell her his name but broke the door open - He thought the whole a stratagem to cover the retreat of Fentress who he supposed had left the house. Under this impression he forced the door which opened without any great resistance and seems to have been fastened by a latch - the bed he believes had also been pulled so as to prevent its opening. The door being opened he entered and saw nobody but Mrs Fentress who was weeping and complaining of the manner in which her door had been broken open - Witness saw no other person in the room besides Mrs. Fentress - Witness asked for Mr. Fentress - he was answered from above stairs by a question either in the voice of Fentress of Mr. Dias, asking whether that was Major Burford. He answered in the affirmative and requested Fentress to comedown, who answered that he was willing to be taken into custody of a proper officer. Fentress as he said this, came forward and came down stairs, he met Fentress on the steps and gave him his hand - Witness went up stairs and found a loaded gun and a sword on the bed. Fentress did not deny having killed Walker but said he did it in self defence. Witness asked defendant why he refused to permit any one to enter the house and why he had closed his doors. Defendant answered that the young Walkers (Elisha and Wilson) had repeatedly threatened to beat him, and that he found that they would come in and kill him, he therefore shut his door
   
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   and determined to defend himself against them upstairs until an officer should come. That he was perfectly willing to give himself up to the Sheriff and had sent a messenger after him. Witness says that defendant appeared perfectly willing nay even anxious to give himself up to the state authorities to stand his trial and abide by the laws of his country - Witness further stated that he was told by defendant at same time, that Walker threw two stones at him, while in the house, that one struck near the fire place which was in the right end of the house as Walker and Fentress entered. And a rock was produced, and on the trial laid on the table, which was said to be the one thrown - He looked on the wall but found no bruise upon it - He searched the house for blood and found a blot upon the tablecloth, which appears as if it might have been two drops near each other which had spread until they met and made one blot. He also heard Mary Fentress (defendant's daughter) tell the circumstances, she told the same story as her father except that the stone which the old man said struck near the chimney went out of doors into an open passage which was between the main part of the house and the back part or kitchen, where she said she had found the stone, and where she saw it fall. All this examination occurred about three or four oclk in the evening - the killing he understood took place about 15 minutes after dinner. Witness said that rock here produced and shown to him is not the rock produced and laid upon the table on the trial before the committing magistrates, that rock was larger than this this, of different shape and colour. The table cloth was also produced and shown to him - he said he did not believe it was the same, the spot of blood was different - He said he enquired into the circumstances of the murder and a stick was produced to him as the stick that Walker brought with him into the house - it was a tobacco stick - the stick was produced to him in the house, he thinks it was picked up in the floor by one of the girls - she picked it up in his presence while he was enquiring into the
   
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   circumstances of the murder - Witness looked for blood in the house at the same time that he was so enquiring of Fentress, could find none on the floor, someone mentioned the table cloth which was still on the table, and suggested the idea of examining that - he does not know who suggested it - the cloth was on the table either turned up or folded he cannot remember - they looked at it, and found two spots of blood, they appear to have fallen near each other and appeared to have spread so as to have connected themselves together, the blood looked like it was fresh, though he did not examine it particularly - Maj. Burford being interrogated, said Fentress was a taller man than Walker - Walker was a stouter man in appearance and heavier than Fentress - He was also a younger man than Fentress and had a more healthy appearance and that his appearing more healthy might proceed from his drinking more Whisky than Fentress.
   ==============|  - said, he was in the house of defendant at the time of the
   George T. Wright |  conversation between him and Maj. Burford, defendant
   ==============|  appeared very willing to surender himself up - and appeared very willing to answer any question that was asked him - he said W. Walker had thrown a rock at him in the house which nearly brushed his hair - said he had shot him in the house as Walker advanced upon him with a stick drawn - that when he shot he was not certain whether he had hit him or not and ran out at the front door - An examination was made for blood none was found on the floor - Someone looked on the table cloth and found a splotch - the table cloth was produced to him - he recognized it as the same. The stick was also picked up in the house and shown as the stick that Walker brought in with him - all this took place before the front door was opened. After the door was he heard someone say that blood had been discovered on the platform - he took particular notice of it - it had the appearance of having been put there by the shoe of some one who had trod in blood and trod on the steps - it also had sand mixed with it. He also said he did not see any body in the house when he entered but Mrs Fentress. He went into the house immediately after Burford went in. This witness on crossexamination was asked who first suggested the probability that there was blood on the table cloth - he answered that he thought it was some one of the gentlemen present.
   
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   =============|  said - that Walker and Fentress had several neighborhood Law
   Hiram Johnson |  suits within the three years past - that the original dispute
   =============|  was about the tract of land on which Fentress lived. That Walker was dissatisfied with the manner in which Fentress got possession of said land which origionally belonged to Walkers mother, who was also Fentress' mother in law. Fentress and the old lady had swaped homes. About the 16th September last witness was riding with defendant who complained of the treatment he had received at Walker's hands ever since he had lived hear him (about three years) and said that when he, defendant, first came there he could scarcely work Walker with double lines, but he had got him so he could work him with a single line and damn him, he would get him so after a while that he would work him without any. Witness searched for the patching for the bullet and also examined whether there was any powder burn - he found neither - but the bosom of the shirt was covered i blood. He believes that the step of the door of Fentress' house is eighteen or twenty inches higher than the plane where Walker lay. In the morning of the day deceased was killed George Walker brother of the deceased requested witness to offer defendant three hundred dollars for his land - He did not see defendant before deceased was killed, and so did not make the offer. Witness says he examined deceased particularly and unbuttoned his pantaloons, and the blood had not run down below the waist band of his pantaloons inside of his clothes, but he was bloody from his knees down even into his shoes, the blood having run out and run down against his knees as they lay upon the ground.
   ============|  , one of the committing magistrates says - that some time
   Frederick Uhls |  before the transaction he heard Fentress say that if Walker
   ============|  did not cease abusing him on his own premisises would blow a ball through him. On being interogated as to the confessions of the defendant before the committing court, he said that, Fentress asserted that he shot Walker in his defendants own house and that he had done it in self defense - That defendant stated before that court, that Walker came to his tobacco scaffold where defendant was hanging tobacco - that defendant
   
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   called to his daughter for his gun - that it was brought to him by Cynthia his second unmarried daughter - that he started towards the house before the gun came and met it at the fence of his tobacco patch, after recovering the gun he kept on to the house - that walker followed him - Defendant crossed the two fences - Walker crossed them after him carrying two rocks and a white oak tobacco stick - that defendant went into his house door - Walker followed him into his (defendants) yard - that he stopped about a minute fifteen feet from the door - some abusive words passed between them - That Walker then advanced upon him - that he, Fentress, gave back and went round the table which stood in the middle of the floor so as to leave the table on his right hand as Walker entered the house he threw a stone as he stepped in the door which he Fentress dodged - Walker then went round the table leaving it on his left side - that in passing around the table he threw another stone which also missed - that he then raised the tobacco stick - that he, defendant, then shot at him and thought he had missed him - under this impression he he ran out the door through which he had entered and ran around the end of the house and came in at the back door - that when he turned Walker followed him and struck at him twice - that Walker followed him to the door where he fell - He saw Elisha Walker coming through the tobacco field and on that account fastened his doors - he also stated that he sent for Mr. Dias a near neighbor to stay with and protect him against the Walkers until an officer could be found - that he had sent for an officer to surrender himself up. The trial of Fentress took place directly after the killing in Fentress' yard and in the presence of the dead body - Fentress was committed and sent off that evening to jail.
   ==========|  , constable - says that a messenger came to the point, a place
   William Kyle |  near Dixon's Spring and told him that Mr. Fentress had killed
   ==========|  Walker, and that Fentress wished an officer to come to his house as soon as possible that he might give himself into his custody - That when he arrived he heard defendant say, that the first rock struck about the chimney. He examined for blood but found none
   
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   in the house or on the steps or platform in front of the door - He heard the defendant say that Walker was striking at him with the stick he when he shot at him - That Walker struck twice after he was shot as he pursued him (Fentress) around the table - that Walker struck his foot against a rock and fell - Defendant also said that Walker was on the door when he threw the first rock he rushed into the house striking at him (Fentress) & he shot him. He said he looked at the bullet hole in Walker, and also at the place where it was cut out - he said the bullet went in below the nipple, it made a very large hole, he said he noticed it particularly and was confident it went in below the nipple. After this witness had given his evidence and retired, he came back and asked leave to explain, and said, he was mistaken in saying the bullet entered below the nipple, that it was above, being asked how he found out his mistake, he said he found it out by noticing his own nipple, and it was lower down than he thought it was, he had never noticed it before, he also stated that he had talked to _____ who told him the bullet entered above the nipple. He saw nobody in the house when he entered but Mrs. Fentress - he said he entered immediately after Burford entered the house and said he did not consider the stick a very dangerous weapon that he had beat many a nigger over the head with as large a stick as that was.
   ==============|  - says - That he examined for blood but found none anywhere
   Thomas W. Page |  in the house - the blood was all around the wound, and the
   ==============|  bosom of the shirt was very bloody, the blood extended above and below the bullet hole in the shirt - it was so bloody that it some time before he could find the bullet hole in the shirt - The shirt was dirty, such as is usual with farmers on saturday evening - Saw no powder stains on the shirt.
   =================|  says , That he heard defendant say that Walker treated
   William M. Clanahan |  him badly, but never heard Fentress make any threats.
   =================|
   ============|  says - that he Miller never whipped Walker in his life - there
   Martin Miller |  never was a word of difference betwnn them in their lives.
   ============|
   
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   =========|  says - That he believes the ball would not strike the heart if
   Doctr King |  it went in the direction and struck in that part of the body
   =========|  described - that it might and probably would strike the great artery leading from the heart, if so, there could be no healthy respiration afterwords though the man might run a few steps after the shot - but that the blood would very soon gush out of his mouth and nostrils. He said a shot produced a sort of deadening sensation, but not much pain - he mentioned instances of men being shot in fight and not sensible of it until the fight was over - said such a shot as this bruised the parts in such a manner that the wound would not bleed freely immediately - thinks the first bleeding from this shot would be at the mouth, that is, if he was breathing through his mouth - or at his nostrils, if breathing through his nose. Said a man might walk fro ten to twenty steps after receiving this shot before he would fall. Ordinarily if a man was standing and received such a shot as this, he would give way in his knees, and sink in his tracts, but if in motion, would most usually continue in the motion, in the same direction he was going until he fell. Supposed it likely if a man was going backwards, he would continue to go backwards until he fell. He mentioned an instance in which he had shot a dog through the heart and he ran some distance about twenty steps. Upon crossexamination he said Walker might have spoken and uttered a whole sentence after receiving the ball - that some portion of blood would probably rise to his mouth at the first respiration, but might not fly out if he was breathing through his nostrils - At the second respiration a greater quantity of blood would probably rise, he cannot state anything with certainty as to the quantity that might be thrown out. He would necessarily fall dead from this shot when he fell, and then bleed very freely at the mouth. ---
   The following evidence was then introduced in behalf of James Fentress the defendant viz. ---
   
   
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   ==============|  gave in evidence that her father, the defendant and Walker
   Mary L. Fentress |  had disliked each other for some time past, ever since her
   ==============|  father had moved to the place where he now lives which was about three years since - that they had repeatedly quarreled and that they mutually abused each other - that the quarrels were usually begun where her father was at work on his farm, and that she believes that Walker commenced them. On friday the day before the defendant shot Walker, he (defendant) was driving hogs out of his lot which was near Walker's house, when Walker began to abuse defendant - that defendant cursed Walker also but drove his hogs on - that Walker came out of his house, and set on the blocks of the yard fence, that they abused each other defendant still driving his hogs - Walker left the blocks and came to Fentress' fence near where it crossed a branch - When Walker got to the fence, both parties threw rocks at each other and Fentress called for his gun, which was carried to him. After Fentress got the gun he came on to the house. Walker followed him up to the yard fence, both parties abusing and cursing each other. While they were quarrelling in the lot she heard Walker accuse her father of stealing he said her father got his living our of his (Walker's) corn crib and smoke house - her father told Walker that Mr. Miller had whipped him with a cow hide - She saw her father rub his back in immitation of Walker while Miller was whiping him. While Mr. Walker was at the yard fence quarrelling with her father Elisha Walker came up. Fentress stood in the door of his house - Walker and his son repeatedly dared Fentress to come out and fight - Walker said he could whip him with his gun - Elisha said, if it were not for your family, I would come in your own house and beat you to death. Fentress abused and cursed them in return but would not go out. After quarrelling for some time Elisha Walker proposed to go home. Walker told him to go and look in his desk and bring him that best knife for he intended to kill the old rascal. Elisha started off - Walker said he would kill the damned old rascal if he went a hen scratch from his house, and gathering some rocks around him he lay down in the corner of Fentress' fence about fifty yards from his house and on the path to his tobacco field. He lay there until Debow's cart came along then left there, and the quarrel ended for that time. Same evening she saw and heard her father and Walker quarrelling in defendants tobacco field - She does not know which
   
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   commenced the quarrel further than that Walker came into defendants tobacco field where defendant was at his labor. This time her father did not send for the gun - The quarrel the next morning before breakfast did not hear. About 12 oclock on saturday defendant was in his lot and Walker came near to where Fentress was in the lot and they began to quaarrel and abuse each other - Walker got over into the lot and came towards her father, who started to the house and called for his gun - the gun was carried to him by one of the children - he did not stop when he got the gun, but still kept on to the house, Walker still following him. Defendant went to his house and Walker came as far as the yard fence and dared Fentress to come out and fight. Fentress told him if he rushed on him on his own premises he would kill him, but would not go out to fight. Walker turned off and went home as witness believes. After dinner Fentress went to his tobacco field to hang tobacco - Witness saw Walker going from his house towards where defendant was hanging tobacco and knowing the quarrel between them, she kept her eyes on them and saw Walker come near to where her father was hanging tobacco, that her father started home and called for his gun, it was carried to the bars by Susan where it was taken by Cynthia who was on her way to the spring and carried to her father, defendant met Cynthia with the gun and took it - they were coming to the house very fast, her father got into a run before he got to Cynthia and got the gun - Mr. Walker was in a very fast walk or a kind of a run behind him. They made no stop when her father got the gun, but continued on the same way across the road and across the yard fence to the house - Walker was not far behind her father - he followed very fast and appeared to be very mad, he made no stop until he had crossed the road and got to the yard fence - He sat on the fence a short time and whittled upon the tobacco stick - He had got the stick from the scaffold where her father was hanging tobacco - He had two rocks, which she supposed he must have brought with him. When Walker got on the yard fence, Fentress was in his house door - Walker sat on the fence a moment and began to whittle the tobacco stick - He then jumped off the fence and came within about fifteen feet of the house door, when he again stopped , holding in his hands the stones and the before mentioned tobacco stick - All this time the quarrel kept up on both sides. Fentress threatening that if Walker rushed on his house he would shoot him - Walker stood a minute or two then started in a very fast walk towards the door - Fentress told him again that if he came in his house he would shoot him, at the same time giving way from the door - Walker
   
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   put one foot upon the door sill, and threw a stone at Fentress which passed through the house and stopped in the passage, between the back door and the kitchen - Fentress had gone round the table which stood in the middle of the room so as to leave it on his right between him and the fire place - Walker entered and went the other way leaving the table on his left and between the fire place - When Walker had entered the house he threw another stone at defendant which defendant also dodged - it rolled under the bed - As soon as he had thrown his last rock Walker raised the stick - Walker was by this time at the corner of the table next to the fireplace - her father was near the back door - Walker had his stick raised and made a kind of a halt as the gun fired - As soon as the gun fired her father ran out of the same door he came in at. Walker followed him as he went out when he got near the door his (Walker) arms fell by his side and the stick fell from his hands as he stepped out of the house he staggered first one way then the other and with the appearance of a spring fell on his face in the yard - Her father came around the house and came in again at the back door. She said she stood in the passage between the house and kitchen and saw all as it happened - Her mother was standing not far from where she was - her mother appeared very much alarmed. They was the two Mr. Walkers both young men grown coming running to the house her father appeared to be afraid they would kill him and went up stairs, her mother fastened the doors and staid below to keep them out of the house - the front door was fastened and a bed was drawn across the back door to make it more secure to keep them out. Her father sent Susan for Mr. Dias - Witness says she was in the house when Maj. Burford came in - She said when he demanded admittance, her mother kept asking who he was - he did not tell but forced the door open her mother was against the door and came very near being pushed down - she further stated that when Major Burford was enquiring of her father about the fight and the tobacco stick was mentioned she picked it up off of the floor from the place where Mr. Walker had dropped it - She also saw the blood on the table cloth it was fresh - the stick, the stone and table cloth here produced are the same which were produced upon the ground and shown before the magistrates on the trial. She said her sister Cynthia was not in the house at the time. When she handed the gun to her father she went towards the spring - There was only one rock produced at the trial. She saw Mr. Walker throw two rocks at her father, the other rock which is here produced was not found until the next morn-
   
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   ing, the trundle bed which had been drawn before the back door, had not been put back to its place until the next morning, when they pushed it back, they found the other rock had rolled under - This last Rock would weigh about two pounds, that produced on the trial would weigh about half a pound - She stated she had never seen or heard of any quarrelling between her father and Mr. Walker except upon her father's own land - She said it had very often happened. She could not tell how often, that Mr. Walker would come to where her father was at work, and drive him to the house - Her father would very often call for his gun as he came to the house, but never attempted to use it or to defend himself - Mr. Walker had always stopt at the yard fence before this time - He had not been in her father's yard before, since they moved to that place. After Walker had passed the corner of the table next to the door, and had thrown the second rock, he raised the stick to strike and made a stop at or near the second corner of the table to which he came as he passed around it, and while in that position the gun fired - As deceased passed towards the front door some blood flew out at his mouth and fell on the table cloth - She also said that she and one of her sisters was near the foot of the stairs when Maj. Burford first entered the house - This witness, being further examined as to the distance between the house of defendant and that of deceased said she supposed it was fifty yards - This witness was a girl about fifteen years old.
   ================|  , a daughter of defendant says - That her father and Mr.
   Cynthia L. Fentress |  Walker have been in the habit of quarrelling with each
   ================|  other for some years past - She believes that the quarrels were generally commenced by Mr. Walker, but that her father almost always quarrelled back - (Council for the state - Give an example in which Mr. Walker began the quarrel ? witness - remembered that some time before Walker was killed my father and myself were loading a waggon with wood to be hauled to the house, when Walker came near to where we were and began to abuse us and threw stones at us, so that we had to run to the house. Walker followed us until father called for his gun, and then Walker stopt.) This quarrelling had been kept up for several years in that way, that Walker when ever he was in a drinking spree, would come to where defendant was at work and a quarrel would certainly ensue - They seldom quarrelled except when Walker was drinking - for they did not speak to each other at any other times - Witness believed,
   
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   that Walker did not absolutely become drunk, but he would occasionally keep himself in a constant state of excitement for several days in succession and in such cases was generally a quarrel. Witness believes that Mr. Walker had been in such a state for several days before his death. On friday, the day before Walker's death defendant was driving his hogs from his lot, when a quarrel arose between Walker and defendant - Witness heard the whole not being more than a hundred yards off, and heard Walker curse defendant distinctly - defendant returned the abuse - Walker in his yard - defendant in his lot - Walker came towards where defendant was - They both threw stones at each other - Witness believes that Walker threw the first stone - Defendant came on towards the house - Walker following him and both cursing each other. Fentress at length called for his gun which was carried to him, both men still came on, towards the house. Defendant came into the house - Walker followed to the road both still quarrelling. At the road Walker was joined by his son Elisha. They both stood at defendants yard fence and abused abused defendant who was in his own door both dared defendant to lay down his gun and come out and fight - defendant would not - but returned the abuse - they said if he would come out they would whip him. Elisha then went off - as he started Walker told him to look in his desk and bring him his knife - Elisha went off and did not return - Walker said he would beat the damned old rascal to death if he could catch him a hen scratch from home. After he had lain there some time he went off. The quarrel in the morning of the same day she related substantially as Mary had done. The quarrel early in the morning she told as was told by the young Walker, except she believed that Walker commenced the quarrel for she saw him going to where defendant was - heard him speak, but could not distinquish what he said - the quarrel arose immediately. About fifteen minutes after dinner was over witness was going to the spring. She saw Walker coming through the tobacco field in a very fast walk. She looked to the tobacco scaffold where she knew her father was at work and which was not far from her at the time and saw her father hanging tobacco. When Walker got near her father he started to the house and called for his gun. Susan brought it to the fence
   
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   and witness carried it from there until she met defendant at the fence of the tobacco field - When defendant received the gun he passed her and went on towards the house, Walker followed him and also passed her. Walker had in his hands two stones and a tobacco stick - She went on towards the spring. Fentress was part of the time in a run - Walker walked very fast, they both came faster as they came near to where she met her father with the gun - Walker followed defendant across the bars and to his yard fence before he stopped. By the time that Walker had got on the yard fence Fentress was in his house door - Walker sat a moment on the fence - then jumped down into the yard and advanced within fifteen feet of the house door, where he again halted for a time. All this time the quarrel was constantly kept up in a loud voice. Fentress repeatedly told Walker that if he rushed upon him in ins own premises he would shoot him - Walker said damn him he would kill him at the risk of his life. Walker started again to wards the house - Witness was between the house and spring - the spring is apposite the end of the house - from where she stood she could see the front door. She saw Walker go to the steps place his right foot upon it and and throw a stone in the house - he then entered almost immediately afterwards the gun fired. Then defendant came running out of the house - Walker followed him - just as Walker stepped out of the house he stopped and with a kind of a spring fell on his face - Defendant ran around the house to the end opposite to where she was, but she saw him enter the back door - She ran towards the house - Mr. & Mrs. Williamson came up she let down the fence for them to ride around through the orchard - She jumped over the barr and went the nearest way to the house - When she jumped over fence Wilson Walker was just behind her - Elisha Walker was already at the dead body - she went on before Wilson Walker and arrived at the house first - She was admitted at the back door - Her father expressed great fear of the young Walkers - When Maj. Burford came she was setting by the side of the stair case below-stairs - The bed had been pulled before the door to prevent its opening.
   
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   Maj. Burford pushed it open and entered - Her father came down and surrendered himself up - She also said that just before the gun fired she had seen her father at the back door. That after the gun fired she went to the house and got there a little before Wilson Walker did.
   ========-======|  says - That she and her husband were going to her fathers,
   Sarah Williamson |  to go from there to the campmeeting. That when she came
   =======-=======|  to the fence of defendant she saw Cynthia Fentress who told her what had happened. Cynthia threw down the fence and she rode through the orchard to the back door of the house - When she left the road she saw Wilson Walker and observed to him that she had expected this to happen he replied yes one way of the other. She and her husband rode on - She does not know whether Cynthia came on behind her, or went the nearest way to the house. When she and Mr. Williamson came to the back door her father sent Mr. Williamson for the sheriff - So that Mr. Williamson did not enter the house at all at that time. She however went in and went up stairs where she stayed until Maj. Burford came - She says defendant had prepared above stairs to defend himself against the young Walkers. The next morning after the death and before the committing magistrates she was sweeping the house and found under the bed the second stone - it was a large one - She also saw the tobacco stick lying on the floor when she first got in - She was married in August last. Her father and uncle Wm Walker had been at enmity ever since her father moved to that place. She had seen her father driven from his work and followed up to the house by Walker a great many times - She cannot tell how often from the time they first moved there until about eighteen months ago, it happened almost every week, sometimes two or three times in a week, then again not so often - Her father would almost always call for his gun as he was coming to the house, but when he got it he would not stop nor attempt to defend himself - Walker never followed him into the yard. She had never seen Mr. Walker in her fathers yard from the time they moved there, until she saw him lying there dead. She never heard of er father going to Mr.
   
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   Walkers to quarrel or to drive him from his work. For about eighteen months past they had been more peaceable - She had heard of the quarrel on friday, before she left home on saturday - Her husband had sent a couple of negroes to assist her father, they came home and told her of it - that was the reason why she said to Wilson Wilson Walker she expected something the kind to happen. She said when the quarrels would begin between her father and uncle, she could not tell which was most abusive - She has often heard her uncle accuse her father of stealing, and her father would reply back to him in the same way. She said the said the small rock weighing about half a pound, the table cloth and tobacco stick here produced, are the same that were produced on the trial before the magistrates. The large rock weighing about two pounds, here shown her, is the same which she found on the trunnel bed the next morning - When Maj. Burford broke into the house, she was upstairs with her father, and came down with him - heard Maj. Burford enquiring how the killing took place - her father answered all his questions - the stick was spoken of - it was lying on the floor towards the front door, and picked up by her sister - Search was made for blood - none was found on the floor - the table cloth was examined and a splotch of blood found on it - it was fresh - She said her father had loaned out his gun for some time prior to the killing, but that it had been at home for about three or four weeks before the killing.
   ================|  says that he arrived at Fentress' a short time after the
   John N. Williamson |  death - Saw Cynthia in the road - she pulled down the
   ================|  fence - he and his wife went to the back door - his wife entered - Fentress met him at the door and told him to go to the camp meeting and bring the sheriff - if he was not here, to Carthage - that he must bring him as soon as possible - Witness went to the camp meeting, but before he got to the camp ground he met Rich Tompkins, who told him that any constable or Justice of the Peace was sufficient - They then went to the camp ground and found 'Squire McMurray, but before they returned to Fentress' house Maj. Burford had already arrived together with Mr. Kyle a constable.
   
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   ===========|  said, that a short time after dinner Susan Fentress a daughter
   Thomas Dias |  of defendant about twelve years old came to his house and
   ===========|  requested him to go over to her father - telling him that defendant had killed Walker and that her father wished to see him - he went and found Fentress up stairs - defendant told him that he had killed Walker in self defence in his own house - Dias staid up stairs until Maj. Burford thrust open the door and entered - he then heard his voice and asked whether that was Maj. Burford - Burford said it was. He told Fentress to come down and surrender himself to Burford - defendant did so. When they came down stairs Maj. Burford enquired about the circumstances - Fentress answered all his questions - his statement of it amounted to about this - that Walker had pursued him from his tobacco ground to the house with rocks and a stick, had followed him into the house and had the stick drawn to strike him at the time he shot - Maj. Burford enquired where the rock struck which he said had been thrown at him in the house, he said somewhere about the fire place. When the stick was enquired for it was lying on the floor and picked up by one of the children - search was made for blood, but none was found on the floor - Some one said let us examine the table cloth - Fentress had said Walker was near the table - they went to the table - the corners of the cloth had been turned up over some things that were on the table - when they turned down the corners they saw a splotch of blood, it had fallen upon that part of the cloth which was near the corner of the table - the cloth here produced is the same - The front door was afterwards opened and a spot of blood was discovered on the platform before the door - Witness examined it particularly, it had the appearance of blood that had fallen there the sun had dried it and it glistened like the blood which had been dried by the sun in the yard, it appeared to be fresh, there was sand on the platform, and some sand in the blood, but it did not have the appearance of having been brought there uppn and persons foot - he said the platform before the door is about eight feet wide, that is, it extends eight feet from the house before the door - the blood was neared to the door than to the outer edge of the platform - he thinks it was between two and three feet of the door sill - someone mentioned at the time that
   
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   it might have been brought there upon the foot of some person, and careful examination for another track either going out or coming in - but none could be found - there was no appearance that any one had trodden in the blood out of doors. The stone here produced is the same that was produced before the magistrates - the stick is also the same.
   =============|  - said - that the saturday before that on which the occurance
   Nathan Brewer |  took place - He and William Walker were riding from Dixon's
   =============|  Spring - that Walker told him that he had tried to settle the matter some way with Fentress - and that he would settle at the risk of his life. And if witness staid in this country he would hear that it was settled or else he would hear of the death of one of them. Witness remonstrated and tried to dissuade him - he said no - that he would make defendant settle the matter before christmas or that he would kill him, for he was tired of living in that way - Walker had been drinking something at Dixon's Spring that day.
   =============|  said - that he passed Walker and one Carter Guthrie on their
   James Hastings |  return from Dixon's Spring some time before Walker's death -
   =============|  He heard Walker tell Guthrie, that if Fentress did not behave himself he would kill him.
   =============|  - said - that Walker was rather a silent man than otherwise,
   John A. Debow |  but that he was quarrelsome with his neighbors - and was not
   =============|  considered a pleasant neighbor - That Fentress was more noisy when excited talked more but he had never known him to have a fight. He could by no means be called a quarrelsome of contentious man. Said he had been acquainted with Fentress and lived a neighbor to him for about thirty years - He was a very peaceable orderly man in society, of very industrious habits and good character - never heard in his life of his being disguised in the sleightest degree with spirits. Fentress has a large family of children, eight or ten - principally daughters. The fresh last spring washed away the fence of Mr. Fentress the rails were carried down upon Mr. Walker's land - Walker's rails were also washed down - Witness sent his cart to help Fentress to get his rails back - Understood he did not get them - Knows Fentress had to break a crop fence. Walker's fence was made up much better than before.
   
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   ==========|  - said - that he had known these two men to quarrel several
   Bird Debow |  times. About eighteen months or two years before the death
   ==========|  of Walker he (W) had told witness an anecdote to this effect that he (W) had gone on a bluff near Fentress' cornfield - Fentress was ploughing and the rows ended near where Walker sat - When Fentress would drive to that end of the row, he would cry wo! to the horse - the horse being young he would stop, and Fentress could not start him no more until son Edward who was hoeing in the same field would come and lead the horse so as to start him, he would then go until he came again to the same end where Walker was who again cried wo! and the same result would follow. At length Edward became impatient and told Walker if he did not quit, he would throw a stone at him, and when the repetition of the same thing he did throw at Walker - who picked up his hand full of rocks and made him leave the field. Witness said he had heard Walker commence two quarrels with Fentress - and he had heard Fentress commence one quarrel with Walker - which is all the the quarrels he ever witnessed between them. Said he had known the general character of Fentress for thirty years, and lived a neighbor to him all that time - Fentress has always maintained a good character - Witness never heard his integrity or honesty impeached in any way - he is a man of very peaceable orderly industrious habits with a large family upon his hands - At one time witness and defendant was together in conversation - Walker came along not far from them, when defendant said to Walker - you cannot come along here God damn you, but you can go to Brook's negro kitchen.
   ===============|  son of defendant says - That he has not been living with his
   Edward Fentress |  father for a year or two - that when he lived there, Walker
   ===============|  and defendant frequently quarreled - That he believes Walker generally commenced it because he was mad with defendant about the land on which defendant lived - He says that just before he left his father Walker came to the field and stopped his fathers horse repeatedly by telling him to Wo! - That he witness threw a stone at Walker, and Walker threw back and drove him out of the field into the tobacco ground. This was all the Evidence. ---
   --- In the progress of this trial defendant produced his daughter Susan and proposed to
   
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   examine her as a witness - She is within a few months of twelve years old - she was interogated by the court and asked who made you ? to which she made no answer and seemed to be at a loss for an answer - She was then asked if she knew anything of the consequences of telling a lie ? to which she made no answer - she was then asked if she knew she would be punished when she died if she told lies - she said she did. She had been examined before the magistrates, but the court thought her inadmissible as a witness - The court charged the jury as follows :
   ======|  - If they were satisfied from the proof that defendant and the
   Charge |  deceased commenced a quarrel in the defendant's tobacco patch and
   ======|  that he retreated from there to his house with the view and design of inducing the deceased to follow him into his own yard or house that he might have a pretext to kill Walker under circumstances which would have the appearance of killing in his own defence and if he had previously deliberated and meditated upon decoying Walker to his house for that purpose and resolved to resort to that stratagem, and his retreat on that occasion was not dictated by fear or cowardice, but to effect a design thus deliberately formed, the killing of Walker under such circumstances would be murder in the first degree - Altho Walker might have pursued Fentress into his own house and there assaulted him with rocks or a stick before he was shot. They might look to former quarrels previous threats and menaces and previous malice if any existed as circumstances from which they might or might not infer such a previous deliberate premeditated purpose. But altho there might have been such previous threats and Menaces made by defendant and altho there might have been previous quarrels and long standing enmity between Walker and defendant there was no rule of law that made it imperious upon them to refer the killing to such previous threats and malice unless all the circumstances in the case warranted them in drawing such an inference. If they thought it most likely that Fentress would have shot Walker for the provocation given him on that occasion provided that had been the first quarrel between them it would be safe for them to
   
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   refer the killing to the provocation then given rather than to previous malice and threats. In the event you should not believe the killing was upon previous malice and in pursuance to a purpose formed upon deliberation and premeditation your next enquiry will be whether the killing under the circumstances amounted to murder in the second degree manslaughter or excusable homicide. To constitute murder in the second degree the killing must be upon malice aforethought also - but malice aforethought as applied to murder does not necessarily imply the slayer cooly determined to kill. It does not require prior or previous threats but the law frequently implies the killing was with malice aforethought from the act of killing itself. If a man killed his fellow by using a deadly weapon which he must know would endanger life without any provocation such killing would be murder in the first degree the act of killing in such case would be evidence of a wicked, depraved and murderous heart and no provocation having been given would be evidence that slayer had cooly designed to kill upon deliberation. But if the killing took place immediately upon a great provocation given such as should excite a man with great passion the killing would not be murder in the first degree but it would be murder in the second degree or manslaughter depending upon the mature and extent of the provocation and the instrument used. If the provocation consisted of abusive epithets irritating and provoking language the slayer accted under the influence of passion thus excited before passion had time to cool it would be murder in the second degree altho he killed with a deadly weapon which he knew would endanger life. But if the slayer should be first rudely assaulted under such aggravating circumstances that would likely excite such such a tempest of passion as would dethr(?) one his reason and while in this fury and storm of passion he killed the assailant altho with a deadly weapon it would be manslaughter. With this view of murder in the second degree and
   
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   manslaughter you will apply the facts in the case and see whether the killing amounts to either of these offences and which of them. Should you believe that Walker commenced quarrelling with Fentress on Fentress' own premices and Fentress retreated to his house and Walker pursued him to Fentress' own house and threatened to whip Fentress in presence of his family and at his own house and should you further believe that Walker halted within ten or twelve feet of Fentress's door and was there shot down by Fentress before he had assaulted him in that case as the provocation was merely irritating and provoking language threats and gestures and upon this provocation there given Fentress shot him under the impulse of passion then excited it would be murder in the second degree - but should you believe Walker had thrown a rock or a stick at Fentress when at his house within throwing distance this would be an assault and being at his own house in presence of his family it was immaterial whether Fentress was hit or not. If he then shot Walker for that Assault immediately while under the influence of passion ; and when he shot, Walker was not following up the assault and was not at the time aiming another blow, which might endanger life or great bodily harm the killing would be manslaughter. But should you believe that when Walker came up within ten or twelve feet of the door of Fentress' house he then threw a rock or struck upon Fentress and was aiming a blow within throwing distance and Fentress hot him to protect himself or any of his family in the house from bodily harm this would be excusable or justifiable homicide provided Fentress could not have protected himself or family in any other way. If he could have protected himself and family in some other way he done wrong in shooting Walker with his gun which he knew would destroy Walker's life and it would in that view be manslaughter because a man who kills another must show he was under a necessity to kill or incurr the hazzard of being killed himself or receiving some great bodily harm or of having his wife or children or some of them killed or a great bodily harm inflicted upon them. You will then consider in this case whether Fentress could have protected himself and family from the blow that was aimed by shutting his door. If the assault was so sudden he had not time to
   
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   shut his door and there was no other way to afford the protection he would be justifiable in killing. If the range of the ball thro the body of Walker satisfies you his left side was presented to Fentress and he was standing fronting Fentress the moment before he was shot then it might be important to why he changed the position of his body - would presenting the gun against him cause him to shift his position or did he place himself on that position to throw a rock or stick at Walker (sic) and if the latter did he aim the blow after the gun was presented with a view to protect himself or did he first aim the blow and Fentress then presented the gun and shot to protect himself or family. If Fentress first presented the gun and Walker drew a rock to stick to protect himself and had not before assaulted Fentress by throwing a rock or stick the killing would be murder in the second degree - otherwise it would be justifiable or excusable homicide - If there be and proof in the case to enable you to determine how that fact was you will decide accordingly but if you are unable from the proof to ascertain how that fact was then it is proper I should state to you this rule of law when a man is killed and you have the slayer before you the law presumes the killing was unlawful and malicious which presumption stands until the slayer removes the presumption by proving facts or circumstances to show he was excusable or justifiable. The foregoing view is predicated upon the supposition only that you should believe Walker was shot in front of the door and before he entered the house of Fentress. But if you should believe from the proof that Walker entered Fentress' house and threw a rock or stick at Fentress in his own house and was pursuing up the assault and was aiming another blow with a stick in the house when Fentress shot, in that view he would be excusable also altho no rock had been thrown if Walker entered the house with a stick in his hand and assaulted Fentress by drawing the stick to strike within striking distance : Hence it is all important for you to examine the facts coolly and dispassionately to see how the truth is whether he was shot in the house or in front of the door. The testimony of the witnesses should be reconciled providing you can do so by a reasonable construction of their evidence if you cannot reconcile them or if facts sworn to by different
   
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   witnesses clash so they cannot all be true you will then consider the degree of credit which ought to be given to the witnesses. If from the manner of their giving testimony you discover any of them possessed great feeling and anxiety in favor of one side or that they had prepared their story before hand or that they swore differently before you from the way they swore before the committing court or that the account they gave is unreasonable or improbable or inconsistent with other facts which you are satisfied did exist these circumstances would detract from their credit. And if you are satisfied any one or more of the witnesses did willfully and knowingly state a falsehood even on a collateral mater that ought to destroy evidence with you altogether. The court further charges the jury if they were not fully convinced the killing was murder in the first degree but it was murder in the second degree - Or if they were not fully convinced that it was murder in the second degree but it was manslaughter - Or if they were not fully convinced it was manslaughter such doubt if reasonable and not sought after should incline them on the side of mercy - And it would be their duty to find it murder in the second degree in the second degree in the first doubt, manslaughter in the second doubt and justifiable homicide in the third doubt. Should you find it murder in the first degree you will say so in your verdict and no more - it you should find the killing justifiable you will render a verdict of not guilty. But should you find it murder in the second degree your will say so and in that case you must fix the period the defendant must be confined in the penetentiary which must not be less than ten years and not more than twentyone years but any intermediate span between these periods. And should you find the killing manslaughter say so and you must then fix the period he must be confined in the penetentiary which must not be less than two years and not more than ten years but you can fix it at any intermediate space between these periods. -----------
   The Jury after deliberating some time upon their verdict, returned into court and requested a repetition of that part of the charge in relation to shutting the door - The court repeated to them the same in substance as is stated in the charge.
   
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   Defendants council moved the court for a new trial, which motion was overruled by the court and this bill of exception signed and sealed by the court and made part of the record. (signed) S. Anderson
   

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   Bill of Cost
   ---
   (A detailed - nearly one page - list of court costs is laid out, but being of little relevance has not been transcribed.) Total was $192.16½
   
   Page 41
   
   ===========
   TENNESSEE
   ===========
   (I) William Hart clerk of the Circuit Court for Smith County do hereby certify ; to whom it may concern, that the forgoing transcript is a true copy of the record and proceedings in a certain suit lately determined in said court between the State of Tennessee plaintiff and James Fentress defendant, on an indictment for Murder. And I further certify that the taxation of cost amended thereto is also a copy from the Records of said office.
   In determining whereof I have here unto set my hand, and affixed the seal of said court, at office 14th December 1835. (signed) William Hart
   

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   Index
   ---
   Grand jurors p 2
   Indictment p 2
   Plea & issue & jury p 4
   Verdict p 6
   Motion for new trial p 6
   Judgement & Appeal p 7
   Recognizances on appeal p 7
   Orders on taxation of cost p 8
   Bill of Exceptions & begins p 8
   Charge of the Court begins p 35
           depositions
   Elisha Walker p 8
   Wilson Y. Walker p 13
   George Walker p 14
   Samuel D. M. Murray p 15
   Orthiel Johnson p 15
   Thomas Phelps p 15
   James Flanagan p 16
   Rowland Clark p 16
   Richard Brown Junr. p 16
   Richard Brown Senr. p 16
   Albert Burton p 17
   David Burford p 17
   George T. Wright p 19
   Hiram Johnson p 20
   Frederick Uhls p 20
   William Kyle p 21
   Thomas M. Page p 22
   William M. Clannahan p 22
   Martin Miller p 22
   Dr. A. H. King p 23
   Mary L Fentress p 24
   Cynthia L Fentress p 27
   Sarah Williamson p 30
   John N. Williamson p 31
   Thomas Dias p 32
   Nathan Brewer p 33
   James hastings p 33
   John A. Debow p 33
   Bird Debow p 34
   Edward L. Fentress p 34
   
   Page 42
   
   (cover)
   The State
         vs   Homicide
   Ja. Fentress
   =================
   from Smith Circuit Court
   =================
   Carthage 18.Jan.1836 State
   (next part of cover hard to read)
   James Fentress
   (?)
   Seld(?) Jany 25 1836

2. ↑ ^{2.0 2.1} The circuit court minutes for the first trial of James Fentress can be found in the FamilySearch Catalog under United States, Tennessee, Smith - Court records. Volume A-B, D-E 1811-1836, Film 319187, image group number 8657502.  The film includes the Circuit Court minutes for 1829-1836.  The minutes for the October 1835 term of the Smith County Circuit Court can be found on-line here starting on image 771 (page 416) starting with the appointment of the grand jury for the term.  The text relating to the grand jury findings and the first trial are on images 776, 778, 779, 785 and possibly more.  This has not been detailed here as the content is repeated with far more detail in the primary source above.
3. ↑ ^{3.0 3.1 3.2} The circuit court minutes for the second trial of James Fentress can be found in the FamilySeaarch Catalog under United States, Tennessee, Smith - Court records.  Volume F-G 1836-1842, Film 319188, image group number 8657503.  The film has court minutes 1836-1838 starting at the beginning of the roll.  The text relating to the second trial can be found on-line here in the record for the April 1836 and August 1836 sessions of the circuit court.  Relevant images are image 13 (Apr 1836 session of the circuit court, page 16 - bail ($3,000) posted to ensure that James Fentress would reappear re-appear for a second trial with a new jury in August - co-bondsmen were John Y. Roper and John N. Williamson - bonds were also signed by a number of witnesses that they would appear to give evidence at the trial in August), image 34 (August session of the circuit court, page 59 - impanel the jury and start the trial on 18 Apr 1836), image 35 (trial again lasts several days), image 38 (not guilty verdict on 23 Apr 1836), image 49 (expense claim for entertaining jurors), image 50 court costs) and image 76 (expense claim for Constable Kyle).  This has not been further detailed here as it is not very easy to read the handwriting.  Like the first trial the testimony of the witnesses is not recorded in the circuit court minutes so while we have some of the names of people who testified at the second trial there nothing about what they said.

Acknowledgement

I am indebted to Ms Brenda Cowan Francis who pointed out to me that James Fentress Sr. had been tried for murder and told me where to find the principal trial record.