1^st

The defence then introduced Michel M^cCollister who after being duly sworn testified to the jury in behalf of the prisoner that he was at the house of the deceased on the evening after he was shot. Saw deceased and the wond which caused his death & was there on the morning after the killing saw a large spot of blood in the path in the orchard where deceased was Said to have fallen, and in Some two feet of that blood he Saw a large flat stone with two or three drops of blood on it — The stone was from Seven to Ten inches long and five or six inches wide — was rather narrower at one end than the other, could not have been grasped around by the hand to be thrown — it might have been caught edge wise and thrown — did not examine the bedding of the stone to see how long it had been laying there — Said the fence was Seven or Eight rails high, Saw where a ball had Struck the fence, the shot had just tipped the upper angular edge of the rail next the top rail, had cut into the rail one half or two thirds of its thickness was not exactly at the middle of the rail — rather nearer one and than the other. If the person who shot had stood in the Middle of the highway to have struck smith in the

upper part of the body where his wound was, Smith would necessarily have stood close up to the fence where the ball struck — because the ground at that point was low — and if he had been standing in the path where he fell — the ball to have passed beteen the upper and rail next to it would have struck Smith in the feet — but if the man who shot had stood near to the fence in the road on the other side from where Smith was there was a gulley there in the road, and a pistol shot by one stood there could have tipped the rail next the top rail and struck a man standing where Smith — in the region of the brest — Saying that he fell where the large spot of blood was — Smith seemed to have fallen nearer the house by Some fifteen feet though the mark of the ball was on the fence, he made this Examination of the ground early in the morning after the killing, He saw thee tracks of Some one who had Stood in the big road in the gully near the orchard fence — Saw the mark where a stone had struck on the fence on the opposite side of the road from where Smith fell Seemed to have been thrown from the direction of the orchard. Saw the tracks of a Horse that had been hiched

on the opposite side of the road from where Smith fell, the horse seemed to have pulled back and tried to get loos from his fastening, two rails had been displaced — He Examined Smiths wounds, the ball entered from behind in his opinion, there was a hole under the left shoulder blade around on the side like under and another one on the right brest the wound in the front of the body was Several Inches higher up than the one behind, the ball that made these wounds passed in his opinion straight through the body beteen these two points. There was another wound on Smith a gash about One inch long cut in just above the Eye, believed the wound in the forehead was made by Smiths fall to the earth when shot — as if his head had struck on a rock or something of that kind — If Smith had been standing in the path leading from the tobacco patch to the house with his face looking towards the house where the Spot of blood was, a ball fired from where the tracks in the gully were, and had tipped the rail at the point where the bullet mark was — it could have struck Smith under the left shoulder blade and have come out on his right brest — the tendancy of a ball would be to glance up a little striking on the upper edge

of a rail, the ground was much higher where Smith fell than it was just at the fence where the bullet struck —

Kelly — States that he was on the ground some days after the Killing saw a rock in the path examined the premises and found the bed of a rock some 15 feet from the path and near the bullethole in the fence the bed fitted the Size and shape of the rock found in the path — Saw a bruise on the fence opposite where the bullet hole was in the rail, The bruise on the fence opposite —

Dr Dulaney being sworn stated that he is a Physician by profession. Examined the man Smith at the instance of his friends after he was shot — is satisfied that the bullet entered the brest near the right niple and came out under the shoulder blade the bullet came out under the shoulder blade some two or three inches lower down on the body than where it entered he is satisfied the bullet did not enter the back or under the shoulder because where the orfice was made on the brest it was much smaller than the opening in the back where the ball came out

2^d
on the back the hole was ragged & torn and bled more freely than from the hole in the brest, this satisfied witness that the ball must have entered the brest and not the back. He probed both sides of the wound, the clothes were on him at the time.

Miss Roberts Examined — sworn states that on Friday evening previous to the Killing she was at home, that Smith the deceased his wife & daughter & son Presley were all at home, that Witness and the family of deceased all lived in the same house. The big road leading to Lockport passed by witness & Smiths residence — Sol Roberts the father in Law of Mitchell the prisoner lived below Smiths (the deceased) residence and Mitchell live above. Mitchell had to pass along the big road in going from his home to his father in Law Sol Roberts Witness Saw Mitchell pass by the house or residence of Smith in the morning going up the road with a load of grain — in the Evening — Witness & deceased as well as several other members of the family were in the porch — Witness, Sister M^s Brewer being one of them and they saw Mitchell the prisoner coming back with his load

of grain going to his father in Law — (Roberts) or in that direction — Smith the deceased saw Mitchell coming left the house and started up the road in the direction of (Roberts) where Mitchell had not then passed but Smith was ahead of him, presently Mitchell came along and went on up the road & when he passed the house & garden & about 150 yards from the house or farther she heard Mitchell & Smith quaralling — Presly Smith a son of Smith about 16 years old followed on and went up to where they were in a little while Smith the deceased returned and his wife M^s Smith who has been examine in this case when he came back asked him if he went up there to have a quarrel with Mitchell — He said he did — that he went to give him a good thrashing, the old lady replied and said he ought to have a good thrashing the deceased Smith said Mitchell was a dam son of a bitch and a damned abolitionist and he intended to kill him the first chance he got — That he had not forgotten the Lincon guns he Mitchell had been packing around — when Smith came back he had a stick in his hand, not very large, He was not in the habit of walking with a stick — That when Smith was found dead on

Monday was near the place where they had the quarrel on the Friday previous the Same the Witness speaks of

M^rs Brewer Examine states, that she was at Smiths on the evening (hy) Friday evening previous to the killing lived in the Same House with Smith — That they Saw Mitchell returning from mill — Smith the deased left the house & went on up the road where Mitchell had to pass along — Smith was ahead of Mitchell. Mitchell come along the road by the house whistling when he got up to where Smith was She heard quarelling — The old lady was in the yard and told her son Presly to go up — her son went — in a short time Smith the deceased returned — and upon bing asked by his wife if he went up there to pick a quarrell with James Mitchell he said he wanted to give him a good thrashing and the old lady said he deserved it, Smith then [...] Mitchell for every thing he could think of Said he was a damn sone of a bitch and a damned Abolitionist and he had not forgotten the time when he Mitchell packed Lincon guns — That on Mondy Evening just before the Killing James Mitchell passed along — witness was near the road stopping Some

Some Hogs when Mitchell passed — He Said to witness good evening She returned the salutation and Said Jim you seem to be on the move — this was then late in the evening. She went on up to the house and just before she reached it she heard Smith & Mitchell quaralling and went & told Smiths wife & daughter and in a few minutes she heard the report of the pistol — The quaralling Seemed to be about the same place of the quaralling on Friday evening. Witness got to the big road as quick as M^s Smith and her daughter who have testified in the case and when she reached the road She saw Mitchell riding off from where the firing took place —

Jerrod Rankin Sworn States — that he was at Smiths on the evening he was killed & helped to take him in the house — when he got to the house with the body his (Smiths) wife remarked that he was too passionate and if he had minded her this would not have happended — Smiths body was found about 15 feet down the path from where the bullet made the hole or mark on the top of the rail.

3^rd

Thurston Carter, Sworn, States that he was a neighbour of Smiths lived about one & a half miles from him on the Sundy before the Killing Smith came to the house of witness about 11 oclock and Said he wanted to look at witnesses crop of Tobacco — On the way to the barn witness proposed to witness to borrow a pistole, Said that he had a dificulty with Mitchell On Friday before, that he Mitchell would not fight, that he had tried him — That he was a damned coward — He wouldent fight unless he had weapons — witness told Smith that he had no weapons Smith remarked to witness to say nothing about it and that in a few days Jim Mitchell would come up missing —

Being asked if he had not told John Wainscott that what he knew & would sware was against Mitchell & that Smith wanted to get a pistol to defend himself against an expected attack from Michell, and he answered that he never made any such statement to Wainscott

Captain Hunt, Sworn States, That he examined the ground saw bushes near the fence where the bullet hole was — William Smith the son of the deceased made different statements on the examining tryal of this case from what he made to day — He

said on the Examining trial that he did not see Mitchell untill he got on his horse to ride off —

Squire Bush States, That he was one of the justices that held the Examining trial of this case in the country and the young William Smith who had testified in the case to day, made different Statements from what he made on the trial in the examining Court —

John Wainscott was introduced by the Commonwealth & sworn — Stated that Thurston Carter told him that he did not want to come to Court and be a witness. because he was a friend of Jim Mitchell and if he had to give testimony he would be compelled to testify his testimony would injure Mitchell — for what he knew was against Mitchell — That Smith had been at his house and had told witness that Mitchell would shoot or kill Smith — and that Smith only wanted a pistole to defend himself agst an expected attack from Mitchell —

This being all the evidence in the cause the Atty for the Commonweth asked the

the following instructions No 1, 2, 3, 4 to the giving of said instructions difendant excepted objections to instructions overruled and instructions given to which deft excepted The following instructions 1 2 3 4 were asked for by Deft and instructions given —

The following instructions were all the instructions offered or given in the case — The jury retired and returned the following verdict Vis

We of the jury find the Deft guilty of manslaughter and Sentence him to two years imprisonment in the Penitentiary at hard labour

The defendant moved the Court to set aside the verdict of the jury & grant him a new tryal was overruled to which defendant Excepted and the following Judgement or Sentence of the Court rendered all of which is required & made part of the record in this case —

Geo. C. Drane
Circut Judge

State of Ky

I Georg T. Hernston clerk of the Henry Circuit Court do certify that the foregoing 19' pages contains a complete record of the Evidence for the Commonwealth and for the defence in the case of the Commonwealth of Kentucky against James Mitchell as furnished by the council for the same, Given under my hand as clerk of Said Court this 14^th day of April 1864 —

George T. Hernston clk H C C