Commonwealth of Kentucky v. Daniel W. Clark, Transcript

KYR-0001-021-0014.xml

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Citation
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Accession Number

KYR-0001-021-0014

Document Genre

Legal/Financial

Repository

Kentucky Department for Libraries and Archives

Collection

Office of the Governor, Beriah Magoffin: Governor's Official Correspondence File, Apprehension of Fugitives from Justice Papers, 1859-1862

Item Location

MG8-87 to MG8-94

Place of Creation

Kenton County, Kentucky

Date of Creation

14 January 1861

Dates Mentioned

1861-01-14

1860-12-29

1860-11

1861-01

1861-01-09

1860-11-05

1860-11-02

1861-01-18

1861-01-24

Commonwealth of Kentucky v. Daniel W. Clark, Transcript, 14 January 1861, Office of the Governor, Beriah Magoffin: Governor's Official Correspondence File, Apprehension of Fugitives from Justice Papers, 1859-1862, MG8-87 to MG8-94, Kentucky Department for Libraries and Archives, Frankfort, KY. Accessed via the Civil War Governors of Kentucky Digital Documentary Edition, discovery.civilwargovernors.org/document/KYR-0001-021-0014, (accessed April 26, 2024).

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< 1 >
State of Kentucky
Kenton Circuit Court

Pleas before the Hon S, M, Moore Judge of the Kenton Circuit Court at the Court house in Covington on the 14^th day of January 1861 -- viz

Commonwealth of Kentucky agst Daniel W Clark, Indict for Horse Stealing,

Be it remembered that heretofore viz on the 29^th day of December 1860, the Grand Jury of this County Came into Court and returned an Indictment against the Defendant, in words and figures following viz --

Kenton Circuit Court

Comwth of Kentucky
agst } Horse Stealing
Daniel W Clark

The Grand Jury of Kenton County, in the name and by the authority of the state of Kentucky accuse Daniel W Clark of the Crime of horse Stealing Committed as follows -- to, wit --
< 2 >
of the said Daniel W Clark on the [ ] day of November, in the year of our Lord one thousand eight hundred and Sixty, and before the finding of this indictment in the county aforesaid, a certain horse, Then and There being, and of the personal property goods & chattels of one James C Foy, unlawfully and feloniously, did then and there Steal take and carry away -- against the peace and dignity of the Commonwealth of Kentucky

W, E, Arthur
atty for Comwth

witnesses
James C Foy
C Butts
James McPherson
Alfred Brown
Wilson Horn

and afterwards to wit on the 8^th day of January 1861, the following Entry and order was made in this case viz --

<< Order Court >

The Defendant being put upon his trial plead not Guilty, and thereupon came a Jury viz- V B
< 3 >
Wood, Wm Maloney, W, H, Taylor, J, A, Bowen, Hiram Bond, Adam Glove, Thomas Dempsey, James Steers, F Rogers, Willis Daniels, Lucien Smith & Robert Center, who were duly sworn well & truly to try the issue, after hearing the Evidence and agreement of Counsel, for want of time the cause & Jury are adjourned over until tomorrow morning 9 oclock

And afterwards to wit on the 9^th day of January 1861 the following entry and order was made in this cause viz --

<< Order Court >
Came same Jury as on Yesterday and returned the following verdict -- "we the Jury find D W Clark the Defendant Guilty of the charge in the Indictment and fix the sentence at four years in the penitentiary," S Smith Foreman"

<< Bill of Evidence >
Testimony Introduced by the Commonwealth James C Foy, Called to the Stand, Sworn
< 4 >
I am a Livery Stable Keeper in the City of Covington Ky, and was so at the time of the crime alledged, my Stable is on Sixth street, on the evening of the 5^th day of November last, Deft came to my stable about 6 or 6 ¹/₂ O clock and asked to hire a horse to go two or three miles into the country to see his mother, I refused to Let Deft have a horse, & Deft offered me $4⁰⁰ for the use of one, I still refused saying my horses were muddy & tired & Just come in, but I offered to send him to where he wanted to go, in my hack, he said he did not want to go in that way, I did not know Deft at first, but when I saw him in full Gas Light, I did recognize him, for he had once been in my Employ, but still refused to let him have a horse, Deft Clark then went away from my Stable, and I saw no more of him, until after his arrest, after he Deft went away, my ostler went to the country with a hack, I remained about half hour longer at Stable, and pulling the Door together without fastening, I was absent about half an hour, at Barber Shop, I
< 5 >
returned to the stable, and after remaining a short time I went home, about half an hour after I had been at home, my Ostler came, and told me my dark bay mare was Gone, and asked me if I had hired her, I said no, when I returned to the Stable, I first thought the mare had sliped the halter, and gotten out, but when I Examined the premises, and the mare & a saddle & Bridle & whip were gone, Said to my Ostler, Clarke has stolen that mare, I then sent my Ostler to the Main Street ferry, & I went to the Newport & Covington Bridge, where I learned, a horse answering the description of mine, had gone over to Newport, with some one on her, I then returned to the office of C Butts procured his services & he & I went to the Newport & Cincinnati Ferry, & there learned a horse answering to mine had crossed, over with a Rider, we went over to Cin, and after staying a while I returned probably about 10 O, Clock leaving Butts in Company with officer Bloom to prosecute the search, The mare was returned to my stable about 6 Oclock the morning after she was taken away
< 6 >

-- Cross Examined --

Said the Deft had often hired horses & buggies of me, and always paid me for them, upon their return, at one time he had been employed in my stable by me for several months, when Butts & I went to Cincinati in Search of said horse, we found a torch Light procession moving through the streets on foot and on horse back, but did not see my animal,

James M^cPherson, sworn, Said, I am a night watch at the Cov & Newport Bridge, about the ~~Last~~first of ^last^ November, I saw a man about the size and looking like the Deft pass the Bridge on a bay mare, rather tall, the mare jumped around being cut with a whip, in the hand of the rider, he paid me his toll, not long after the horse passed, M^r Foy came to the Bridge, described his horse, and asked me if any had passed, answering said description, I told him there had, He said it was a Dark bay mare, He went away, and in a short time he and Officer Butts returned and passed over the Bridge,

"Cross Examined"

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Said, I do not think the moon was shining, but there was a Gas Light, just at the office, my attention was attracted to the horse & rider, by the horse jumping arround, by a Lash from the rider, and jumping on the side walk, I think the horse was a red bay mare, rather Blood red, A great many persons pass over the Bridge, day & night, on foot & on horseback & otherwise, Several had passed that night, The Deft looks about the size of the person on the horse the time I speak of, I do not know him, am not acquainted with him

Wilson Horn sworn, -- Said -- I was with the Deft on the 2^nd of Nov^r last we were on 6^th Street, & I heard the Deft say he intended to have a horse if he had to steal one, I Separated from him, and after he was arrested and put in Jail, I was then talking with him through the bars, and he asked me if I saw him take the horse, I told him no,

Clinton Butts sworn -- Said -- M^r Foy came after me about 8 or 8 ¹/₂ Oclock on the evening of the 2^nd
< 8 >
of November last, stated he had lost a horse, I went with him to Cincinati we stayed together until about 9 or 10 oclock, when he left me, I was in company with M^r Bloom officer of Cincinnati, we found the mare at the Tavern of the Black bear, She was in the stable, Deft was not there, I brought her to M^r Foy and he recognized her as his, I left her there, She was a little bay mare, I arrested the Deft & put him in Jail, about ten days afterwards, at Robson's black smith's shop in this city,

The testimony here closed, The Deft offered none,

The attorney for the Commonwealth asked for the following Instructions which were given, Being modefied by Defts suggestions, they are as follows viz --

<< Instructions >
1^st If the Jury find from the evidence that the Deft in this County, before the Indictment was found & as charged therein, with the felonious intention of appropriating the same to his own use, & against the knowledge
< 9 >
& consent of Foy stole took & carried away the horse of S^d Foy, then they will find Deft Guilty, & fix his punishment by Confinement in the Penitentiary for not less than four nor more than Eight years --

2^nd If from all the Evidence in the case, the Jury Entertain a reasonable doubt ~~of the Guilt~~ as to whether the facts, constituting the offense charged have been proven, then they will find the Deft not Guilty,

3^rd The Law implies Guilt from the possession of stolen goods unexplained, and the burthen of disproving it, is on the Deft,

After argument the Jury retired & returned with the following verdict (Copied on page 3)

and afterwards towit on the 14^th day of January 1861 The following entry and order was made in this cause viz,

<< Order Court >
The Defendant filed the affidavits
< 10 >
<< Order Court >
of William Bridges and William Chester herein, and moved the court for a new trial, and filed Grounds therefore, motion heard and overruled & defendant Excepts

The following is the affidavit of W^m Bridges refered to in the above order

<< Bridge's affi >
W^m Bridges states that on the [ ] day of January 1861, he heard one of the men who said he was a Juryman in this case remark to Deft, That it was not worth while for two Jurymen to hold out against ten, I heard this when he was in Conversation with a man by the name of Chister in the ~~Jail~~ Cell with Deft Clark

W^m Bridges

Sworn to before me by W^m Bridges the 14^th day of ~~[...]~~Jan 1861

R K Sumerwell N, P, K, C,

The following is the affidavit of W^m Chester refered to in the foregoing order
< 11 >

<< W Chester's affi >
W^m Chester states that on the [ ] of January 1861 he heard a man say he was on the Jury in this case, that he saw no testimony sufficient to convinct Deft, but it was no use for one or two to hold out against the rest, for they would be discharged & Deft Convicted without them,

W Chester

Sworn to before me the 14^th day of January 1861 by W^m Chester

G Clay Smith, N, P, K, C

The following are the Grounds for a new trial filed herein,

The Deft asks the court to grant him a new trial because

<< Grounds for new trial >
1^st The verdict of the Jury was not warranted by the Evidence, in the case, for there was no proof of sufficiently identifyinig the Deft as the person, having the horse of Foy in his possession, nor was there any profof that the Deft, did feloniously take said Horse, from the Stable of Foy for the purpose of converting the same to his own use

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2^nd The verdict of the Jury was contrary to the Law Given in this Case, because the 2^nd instruction of the court was as follows "If from all the Evidence in the Case the Jury entertain a reasonable doubt as to whether the facts constituting the offense charged, have been proven, then they will find the Deft not Guilty", The first instruction was that if the Jury find from the Evidence that the Deft with the felonious intention of appropriating, to his own use, stole took and carried away the horse of said Foy, then they will find said Deft Guilty

The Deft believes there was no Evidence in this case to justify the verdict, and therefore they have adjudged him Guilty, contrary to Law or Evidence

3^rd Because of the misconduct of the Jury in arriving at their verdict,

And afterwards towit on the said 14^th day of January 1861, The following entries and orders were made in this cause as follows viz --
< 13 >
Comwth of Ky agst D, W, Clark Indict
same " same "

The Defendant was brought into court in custody, and being informed of the nature of the Indictments, pleas, & and verdicts, was asked if he had anything to say why Judgment should not be rendered against him, and saying nothing It is adjudged that the Defendant be taken back to Jail and from there by the Sheriff of this county, to the penitentiary at Frankfort, and there confined at hard Labor for the period of Four years for stealing the horse, of James C Foy, and at the expiration of Four years, for the further period of one year for stealing the Knife of Samuel B. Laird,

And afterwards towit on the 18^th day of January 1861 the following entrieys and order was entered of Record in this cause viz --

<< Order Court >
The Defendant filed a bill of evidence & exceptions herein, signed sealed & enrolled and made a
< 14 >
part of the Record herin, The Defendant prayed an appeal to the court of Appeals

The motion of the Deft for arrest of Judgment & for a new trial were Each overruled, to which opinion of the Court the Defendant Excepted & Still Excepts, and ~~[...]~~asks that this his bill of Evidence & Exceptions be signed and made a part of the Record which is done --

S, M, Moore

Index

Indictment	page 1 & 2
orders court	" 2, 3, 9, 10, 13 & 14
Bill Evidence	" 3, 4, 5, 6, 7, 8
Instructions	" 8, 9,
Bridge's affidavit	" 10
Chester's affidavit	" 11
Grounds for new trial	" 11, 12,
Judgment	" 14,

Commonwealth of Kentucky Kenton County & Circuit Sct

I Napoleon B Stephens
clerk of the Kenton Circuit Co~~mth~~urt do certify the foregoing 14 pages contain a full and complete transcript of the Record of the cause therein Stated witness my hand as clerk of the said Court this 24^th day of January 1861

N. B. Stephens ck
Kenton Ct Ct --

Kenton Circuit Ct

Comwth of Ky
agst } Transcript of Record
D. W. Clark

The instructions in this case were misleading and wrong there was no evidence upon which to base the 3^rd. The finding was not sustained by the evidence and the Indictment is bad. I have no doubt but this case would have been reversed by the court of aAppeals and rightfully reversed. The punishment already completed has been at least sufficient for the evidence. And as he is the only help left for ~~[...]~~ widowed mother, where other sons have fallen in defence of our Country a pardon is ordered --

Thos. E Bramlette

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