Henry Gallespie Appellant
Against } Appeal
The Commonwealth of Ky Appellee

On Appeal from the Washington Circuit Court to the Court of Appeals of Kentucky

Hon. John E. Newman Judge

L. H. Noble Commonwealths Attorney & C. B. Butner Esqr. & W. B. Harrison Esqr Attorneys for Appellee

Hardin & M^cIlvoy and W. O. Cunningham Esqr Attys for Appellant

Jas. P. Barbour Clerk

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State of Kentucky
Washington Circuit } Sct

Pleas before the Hon. John E. Newman Sole Judge of the Washington Circuit Court at the Court House in Springfiled on the [...] day of October 1865.

Be it known that the Grand Jury empannelled for the April Term 1865 of the Washington Circuit Court returned into Court the following indictment to wit

Indictment
The Commonwealth of Kentucky
Against } Washington Circuit Court
Henry Galispie

The Grand Jury of Washington County, in the name and by the authority of Commonwealth of Kentucky, accuse Henry Galispiey; of the Crime of "Murder" Comitted as follows: The said Henry Galispy, on the 26^th day of December 1864, in the County aforesaid, did wilfully, feloniously and of his malice aforethought kill and Murder John B. Lawrence by shooting him

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with Pistol, Against the peace and dignity of the Commonwealth of Kentucky Witness before the Jury, Thomas Graves Woodford Grave's Elliot Wilkerson

April Term 1865
And at a Court held for the Circuit aforesaid to wit on the 22 day of April 1865 the following order was made to wit

Order
Ordered that a Bench Warrant issue against Henry Galispiey indicted for murder at this Term

Bench Warrant
Bench Warrant issued on the 18^th day of July 1865, And was returned by the Sheriff of Washington County on the 31^st day of August 1865, Which return is in substance as follows, "Arrested the Defendant Henry Galispie and delivered him to the Jailor of Washington County, the 31^st August 1865. C. F. Bosley S. W. C,"

Octr Term 1865
And at the Court held for the Circuit aforesaid to wit on the 10^th day of Octr 1865. the following order was made

Order
It appearing to the Court from the papers filed in this cause that an

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order has been made heretofore by the presiding Judge of the Washington County Court transfering the Deft Galispie to the Jail of Marion County Ky. It is now ordered on motion of the attorney for the Defendant that the sheriff of Washington County proceed immediately to Marion County, and that the Jailor of Marion County deliver up to the custody of said sheriff, said prisoner and that the sheriff convey said prisoner immediately to this County (Washington) and that said sheriff deliver the said prisoner to the Jailor of Washington County at the Jail house thereof in Springfield who is ordered to receive said prisoner into his custody and him safly keep subject to the orders of this Court and the sheiff is authorized to summon guards not exceeding two to be subject to his Control in executing this order

Octr Term 1865
And at a further day of this Term to wit on the 16^th day of October 1865 the following Order was made "to wit"

Order
This day came the attorney for the Commonwealth and the Defendant ^Henry Galispie^ also appeared in Court in custody of the

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Jailor. The Defendant waived arraignment and pled not guilty, and thereupon the following Jurors were examined and selected "viz" Augustin Cooper, John Smith Joseph Blanford, Abel Thomas, Jonathan Edwards, R. P. Goatly, George L. Helm, Patrick Lyddan and James Ward and James Riney, and not having time to proceed further at this time said selected Jurors who were charged by the Court as required by law and placed in charge of the sheriff who took the necessary oath, and were adjourned until tomorrow morning at 9 O'clock, The Defendant was then remanded to Jail in custody of the Jailor

Oct Term 1865
And thereafter at a further day of this Term "to wit" on the 17^th day of April 1865 the following Order was made

Order
This day came the Attorney for the Commonwealth, and the Jurors selected on yesterday came also in charge of the sheriff, the Deft was then brought into Court in custody of the Jailor and thereupon the following named Jurors were selected as Jury, to wit, Augustine Cooper John Smith Joseph

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Blanford, Abel Thomas, Jonathan Edwards, R. P. Goatley George L. Helm Patrick Lyddan, James Ward, James Riney, Valentine Mudd, and Ignatious Corbitt, who were sworn to try the issue and render a true verdict in the case of the Commonwealth against Henry Galispie charged with murder and also took the oath of fidelity required by the statutes law's of Kentucky, and after hearing the evidence in part, are adjourned until tomorrow morning 9 O'clock said Jury was then charged by the Court as by law required and placed in charge of the sheriff to whom was administered the Oath required in such cases and the prisoner by order of ^the^ Court was remanded to Jail in custody of the Jailor

Oct Term 1865
And at a further day of this Term "to wit' on the 18^th day of October 1865 the following Order was made "to wit"

Order —
This day came the attorney for the Commonwealth and the Jury heretofore impannelled also came into Court in charge of the sheriff and the Defendant was then also brought into Court in

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Custody of the Jailor,

On Motion of the attorney for the Deft an attachment is awared him against Ben Powell a delinquent witness for deft in this cause returnable to the next Term of this Court and evidence having been heard in full and the instructions of the Court an argument of counsel the said Jury retired to Consult of their verdict, But not being able as yet to agree upon a verdict were adjourned until tomorrow morning at 9 Oclock and here charged by the Court as required by law and placed in charge of the sheriff, and the prisoner was remanded to Jail in custody of the Jailor

Octr Term 1865
And thereafter at a further day of this Term "to wit" on the 20^th day of October 1865 the following Order was made "to wit"

Order
This day came the attorney for the Commonwealth, and Henry Galispie who stands indicted for the crime of "murder" was brought to the bar in the Jailors custody and thereupon the Jury heretofore impannelled in this cause appeared in the sheriffs charge and returned into Court the following verdict We of the Jury find the Defendant Henry

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Galispie guilty of the crime charged in the within indictment and fix his punishment at confinement in the Penetentiary of the state for the Term of Six Years and six Months

George L. Helm Foreman

And on motion of the attorney for the Commmonwealth defendant is remanded to prison to await the Judgment of the Court

Octr Term 1865
And thereafter at a further day of this Term "to wit" on the 21^st day of October 1865 the following Order was made "to wit"

Order
This day came the Defendant by his attorney and filed grounds together with the affidavit's of said deft and his attorneys. M. R. Hardin Esqr, Thomas M^cIlvoy Esqr. and W. O. Cunni^n^gham Esqr. together with the affidavits of James H. Nowe. Alexander Smith and Zach Pope together with copies of the orders of this Court impanelling the Grand Jury of date, April 21^st 1865 and noting the indictment of said deft and moved the Court to set aside the verdict and Judgment herein and grant him a new trial

The following is are the grounds filed on the 21^st
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day of October 1865 to wit

Grounds for new trial
Washington Circuit Court
The Commonwealth — Plff
Against } Grounds for New trial
Henry Galispie — Deft

The Defendant moves the Court to set aside the verdict herin and grant him a new trial on each and all of the following grounds
1 The Court erred in giving to the Jury instructions at the instance of the attorney for the Commonwealth —
2 The Court erred in refusing to properly instruct the Jury as asked by the defendants and in modifying instructions asked by Defendant which after being so modified were given.
3. The verdict of the Jury is against the law and evidence
4. There was no sufficent evidence that the killing of Lawrence was done in Washington County,
5 Because the Defendant did not receive a fair and impartial trial, In this Jonathan Edwards one of the Jury was legally disqualified to act as such by having been one of the grand Jury who found the indictment and by having heard the testimony

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of witnesses for the Commonwaealth and formed an opinion thereon that Defendant was guilty as charged in the indictment and having being biased and prejudiced against Defendant and in favor of the Commonwealth all of which was unknown to Defendant and his counsel till after the trial although they used due dilligence in the examination of said Edwards under oath when taken as a Juror, Defendant files herewith and makes part hereof the affidavits of himself and Counsel and others,

Wherefore &c
Hardin & M^cIlvoy & Cunningham for Defendant.

The following is the Affidavit of Deft filed "to wit"

Affidavit of Henry Gallespie
Washington Circuit Court
Commonweath of Ky.
Against } Affidavit
Henry Galespie

The prisoner Henry Galispie states on Oath that he has not received a fair and impartial trial of his cause That Jonathan Edwards one of the petit Jurors who found the verdict against him was one of the Grand Jury who

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who found the indictment on which he was tried and was legally incompetent and disqualified to act as a Juror, on the final trial and from hearing the evidence as a Juror, on the final trial and from havearing the evidence as a Grand Juror and finding the indictment had preadjucicated this Defts case before being sworn as a Juror on the trial and became and was when sworn examined and taken as aforesaid on the Jury biased and prejudiced against him and in favor of the Commonwealth against him, and had in his oath as a Grand Juror already decided that this Defendant was guilty as charged in the indictment and was thereby unfit and incompetent to act as a petit Juror to try him on said indictment. He avers that Said Edwards was an entire stranger to him and when examined as a Juror Deft did not know him and had no knowledge of his having been on the Grand Jury as aforesaid, nor that said Edwards had preadjudicated his case or was biased or prejudiced against him as aforesaid that on said Edwards examination touching his qualifications touching his qualifications and fitness as a Juror he stated on oath that he was not a member of said Grand Jury which was untrue, and further stated

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that he had not heard any of the evidence in the case which was untrue as he had heard the witnesses against Defendant before the Grand Jury and further stated that he had formed no opinion of Defts guilt or innocence of the charge which was untrue as he had formed an opinion that Defendant was guilty as expressed by the indictment itself, He avers that himself and his counsel were wholly deceived and misled by the false statements of said Edwards as aforesaid as was also the Court, that if said Edwards had disclosed the truth on his examination the same would have been cause for his exclusion without fp^e^remptory challenge and Deft would have challenged him for cause, where as he was obliged to accept him or challeng^e^ him peremptorly and being deceived and misled by his false statements as aforesaid he accepted him as a Jury when if the Juror had stated truly this Deft would not have [...]accepted him as a Juror. even if he had, had to challenge him peremptorly He states that neiather himself nor any of his counsel knew or had any reason to suspect so far as he know's or beileves till after the verdict was rendered against him that said Edwards was on

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said Grand Jury, or that any of his said statements on his said examination were not true, or that he was biased and prejudiced against him and incompetent to serve on the Jury aforesaid

Henry C. Gallespie

Sworn to by Henry C. Gallespie before me this 20^th day of Octr 1865

James R Barbour clk
By Wm. H Phillips D, C,

The following is the affidvavits of M. R. Hardin Thomas M^cIlvoy and W. O. Cunnigham filed in this cause to wit

Affidavit of M. R. Hardin Thomas McIlvoy & W. O. Cunningham
M. R. Hardin. Thomas M^cIlvoy and W. O Cunnigham state on oath that they were the only counsel of Henry Gallespie and as such had the management of his defence on the trial of the Commonwealth against him for killing John B. Lawrence That when Jonathan Edwards one of the Jury was examined and taken on the Jury they had no knowledge or information that said Edwards had been one of the Grand Jury who found the indictment against said Gallespie. That is each of one of the affiants for himself so states that he had no such knowledge or information

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and further that the fact that said Edwards had been on said Grand Jury did not nor did any information of it come to their knowledge till after the verdict of the Jury had been rendered on this 20^th day of Octr 1865, One of them acted as counsel for the Defendant in the examination of the several Jurors and in challenging and accepting Jurors while the Commonwealths attorney and his assistant counsel did so for the Commonwealth and affiants distinct recollection is that every Juror taken was examined as to whether he was on the Grand Jury who found the indictment and answered in the negative and also stated in substance that they had formed no opinions as to Defendants guilt or innocence from [...]hearing the evidence or statements of the witnesses, and they accepted said Edwards on the Jury holding believing from his examination that he had not been on said Grand Jury and was a competent Juror free from any bias or prejudice in the case

M. R. Hardin
Thomas M^cIlvoy
W. O. Cunningham

Sworn to before me by M. R. Hardin Thomas M^cIlvoy and W. O. Cunningham

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this 20^th day of Octr 1865

J. P Barbour clk

The following is the affidavits of James H. Nove, Alexander Smith and Zach Po[...]pe filed in this case "to wit"

Affidavits of Jas. H. Noe. Alex. Smith & Zach Pope
The undersigned Citizens of Washington County states that they were members of the Grand Jury who found the indictment against Henry Galispie for killing John B. Lawrence upon which he has been tried and convicted at the present term of the Washignton Circuit Court (Octr 1865) and they know that Jonathan Edwards who was one of the Jury who tried said Gallespie at this term was one of Said Grand Jury who found said indictment

James H. Noe
Alexander Smith
Zach Pope

Sworn to before me by J. H. Noe Alex^r Smith and Zach Pope this 21^st day of Octr 1865

J. P Barbour Clk

The following is the order of the Court impannelling the Grand Jury at April Term 1865, and filed with the foregoing Affidavits, to wit

Washington Circuit Court

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Order empannelling the Grand Jury for April Term 1865
April Term 1865. April. 21.

Ordered that the sheriff of Washington County proceed immediately to summon sixteen qualified Jurors to serve as a Grand Jury for the remainder of the present Term, and the said sheriff reported the following names into Court who were sworn and impannelled as a Grand Jury, to wit, Albert G. Bevill Jonathan Edwards, Zachariah Pope. C. T. Cunningham, Wm. P, Clements, Wm Rudd Richard Montgomery. John Robertson James H. Noe, Benjamin Pile, George W. Tatum, John M. Lair and William O'Garra,

A. G. Bevill was then appointed foreman

A copy attest
J. P Barbour clk

The following is ^a copy of^ the Order returning into Court the indictment and filed with foregoing affidavits, "to wit"

The Grand Jury impannelled on fFriday the 11^th day of this Term returned in to Court the following indictment "to wit"

Commonwealth Plff
vs } Indictment for Murder
Henry Gallespie Deft

a true Bill
A. G. Bevill
foreman

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Ordered that a Bench Warrant issue against Henry Galispie indicted for murder at this Term

A copy attest
J R Barbour clk

Octr Term 1865
And at a further day of this Term to wit on the 23^rd day of October 1865 the following order was made "to wit"

Order
This day came the attorney for the Commonwealth and moved the Court to premit him to file the affidavits of Jonathan Edwards W. B. Harrison Esqr. Charles Butner Esqr. and also the affidavits of A. G. Bevill, R. S Peters John, M^cIntire and J. P Barbour herein to which Deft by his counsel objected and the Court not being advised took time

Octr Term 1865
And thereafter at a further day of this Term to wit on the 24^th day of October 1865 the following Order was made to wit

Order
This day came the attorney for the Commonwealth and the Defendant also appeared by his attorney, and the motion of Plff to file sundry affidavits offered at a former day of this term came onto be heard and the Court now being advised

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premitted plaintiff to file the affidavits of Jonathan Edwards herein together with those of his Counesl Wm. B Harrison & C. B. Butner and the affidavits of R. S. Peters and J. P Barbour excluding all affidavits and parts of affidavits detailing anything said or done of an improper character by the Grand Jury that found the indictment in this case or any member of said grand Jury in the Grand Jury room and also extended the same qualification to the affidavits o heretofore filed by deft Gallispies counsel herein, to the opinion of the Court excluding the affidavits as aforesaid plff by Counsel excepted, upon the motion for a new trial the Court being advised overruld said motion, deft excepted and prayed an appeal which is granted

The following is the affidavit of Jonathan Edwards filed in the Cause to wit

Affidavit of Jonathan Edwards
Commonwealth
vs } Affidavit
Gallespie

Jonathan Edwards states that when he was being advised examined as to his qualifications to serve on

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the Jury in this case he stated that he was upon one Grand Jury at the Spring Term of this Court but had no recollection of hearing any thing about this case and it was at the time remarked by some one perhaps the Judge that there were two Grand Juries at that Term of the Court, Affiant now states that he has no recollection even now that he ever heard a word of the evidence in this case until the case was tried at the present term of this court, He states that he never aided in finding the indictment in this case or took any part with the JGrand Jury when voting or acting upon the case when it was before them, when affiant was on the Grand Jury as above stated he understood the Jury was call specially and alone with refference to some guerrellas and affiant heard nothing about any other case or cases except the guerrillas and up to the time he was summoned as Juror at the present term of this court he had no knowledge that an indictment was pending in this Court against Galispie

Jonathan Edwards

Jonathan Edwards says he believes the statements in the above affidavit are true

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The following is the affidavit of Wm. B Harrison filed herein "to wit"

Affidavit of W. B. Harrison
W. B. Harrison says he was one of the counsel engaged in the prosecution of Galispie for killing Lawrence at the present term of the Washington Circuit Court that while the Jury was being selected one of the persons interogrogated as to his qualification stated the he was on the grand Jury at the April Term of this Court but had no recollection of having heard of the case of Galispie Some one then remarked that there were two Grand Juries at the April term, Affiants impression is that Jonathan Edwards is the person who was then under interrogation as to his qualifications, W. B. Harrison

Sworn to before me by W. B. Harrison Octr 23. 1865

J. P. Barbour clk
By Wm. H. Phillips D. C.

The following is the affidavit of C. B. Butner filed in this cause "to wit"

Affidavit of C. B. Butner
C. B. Butner says he was one of the counsel engaged for the Commonwealth

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against Galispie for killing Lawrence and concur with the statements made by W. B. Harrison who is one of the counsels for the Commonwealth

C. B. Butner

Sworn to before me by C. B. Butner October 21^st 1865

The following is the affidavit of A G. Bevill filed in this cause to wit

Affidavit of A. G. Bevill
A. G. Bevill says he was foreman of the Grand Jury that found the indictment against Galispie for killing Lawrence that after the Jury got into the room it appeard that the principalle if not only business to be before the Jury was in rgard to some reported Guerrillas, There were a great many witnesses before the Jury upon that matter and the investigation lasted more than a day and while that matter was before the Jury a witness came before the Jury and made a very short statment in regard to Galispie killing Lawrence Affiant wrote it down very little was said about it anyway, no action was taken upon it by the Jury until they were about to close their business. I then read the short statements against Galispie and without

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any hestiation the indictment was found, the Jury was very much oscattered over the room, some setting in the windows for want of other seats he does not remember that Jonathan Edwards was in the room or took any part in the case of Galispie Jonathan Edwards bears the character of an upright truthful man nothing has ever been said against his integrity so far affiant knows and he has know him and his charcter for ma^n^y years

A. G. Bevill

Sworn to before me by A. G. Bevill Octr 21. 1865

J. P Barbour clk

The following is the affidavit of Zachariah Pope filed herein "to wit"

Affidavit of Zach Pope
Washington Circuit Court
Commonwealth
vs } Affidavit
Galispie

Zachariah Pope says he has given an affidavit in this case at the instance of Defts Counsel and he now makes this additional statment The Grand Jury at the time the indictment was found in this case were in a large Room in the Court house and had only two or three chairs and there was a great

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deal of noise and walking about in the Room and the sheriff frequently came up to stop the noise, Jonathan Edwards of whom he has spoken in his affidavit bears the character of an honest and truthful man

Zach Pope

Sworn to before me by Zachariah Pope this 21^st Octr 1865.

J. P Barbour
Clk

The following is the affidavit of R. S. Peters filed in this cause "to wit"

Affidavit of R. S. Peters
R. S. Peters states that he has been acquainted with Johnathan Edwards of Washington County for over Nine Years and during that time he has borne the character of an honest truthful man

R. S. Peters

Sworn to before me by R. S. Peters Octr 21,, 1865,

G. I. Bosley J. P, W, C,

The following is the affidavit of J. P P. Barbour filed in this Cause "to wit"

Affidavit of Ja^s P Barbour
Jas. P. Barbour states that he has known and been acquainted with Jonathan Edwards of Washington County about forty years or more and during

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that time he has sustained the character of an honest and truthful man

J P Barbour clk

Sworn to before me by J. P Barbour this 21^st Octr 1865

John M^cIntire, P. J. W. C.

The following is the affidavit of John M^cIntire filed herein "to wit"

Affidavit of John M^cIntire
Washington Circuit Court
Commonwealth
Against } Affidavit
Galispie

John M^cIntire Says he has known Jonathan Edwards for thirty five or forty Years and during that time he hs borne the character of an honest and truthfull man

John M^cIntire

Sworn to before me by John McIntire this Octr 21. 1865

Wm. H. Phillips D, C,

Octr Term 1865
And thereafter at a further day of this Term "to wit" on the 27^th day of October 1865 the following Order was made

Order
This day came the attorney for the Commonwealth and the Defendant Henry Galispie was brought to the bar in Custody of the

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Jailor, and being informed of the nature of the indictment plea and verdict was asked if he had any legal cause to show why Judgment should not be pronounced against him and none being shown. It is adjudged that the Defendant be confined in the penetentiary h[...]ouse of the Commonwealth of Kentucky at hard labor for Six Years and six Months, and the Sheriff isof Washington County is directed to convey Said prisoner to the penetentiary and deliver him to the ^a^gent and keeper thereof, And the Defendant having prayed an appeal hereon from the Judgment of this Court on his motion by his attorney Said Defendant is granted thirty days for obtaining a transcript of the record. for submitting the transcript to a Jud^g^e of the Court of Appeals for his allowance of the Appeal, And obtaining the certificate of Appeal, And the Court being satisfied from upon proof heard that the Jail house of this (Washington) County is insecure, It is Ordered that the sheriff of this County do take as soon as practicable the Defendant Henry Galispie into his custody and that the Jailor of this County deliver ^up^ said prisoner to said sheriff and that the sheriff aforesaid convey to the Jail House of Marion County

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said prisoner and deliver to the Jailor of Marion County at the Jail House thereof in CLebanon, and the Jailor of said County of marion is directed ordered to receive said prisoner into his custody and detain him in custody until demanded of him by the sheriff of Washington County and it is further ordered that if no certificate of an appeal having been granted to Defendant by a Judge of the Court of Appeals of this state shall be filed in the Office of the clerk of this Court within thirty day's from this day the sheriff of said County of Washington shall immediately on the expiration of that time take said Defendant into his custody and convey him to the Penetentiary of this state and there deliver him to the agent and keeper thereof, who is hereby commanded to take said Deft into his custody and confine him in said Penetentiary at hard labor for the period of Six Years and Six Months. The sheriff of Washignton County is authorised to summon two guards to be selected by him and to be under his ^direction &^ control for that purpose of conveying said prisoner to the Jail House of Marion County in the Execution of this Order, And also

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as many guards for the purpose of conveying said prisoner to the penetentialry in the event it should become necessary to do so which guards shall be under the control of said sheriff for the purpose aforesaid and then ^the^ prisoner was remanded to Jail in Custody of the Jailor of Washington County

Octr Term 1865
And thereafter on the aforesaid day of the aforesaid Term "to wit" on the 27.^th day of October 1865 the following Order was made to wit,,

Order
This day came the Defendant by his counsel and tendered a Bill of Exception which was examined and Signed by the Court and ordered to be filed with the records of this SCause

The following is the Bill of Exception filed "to wit"

The Commonwealth
vs
Henry Galispie

Be it remembered that upon the trial of this case the Commonwealth called and had

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Bill of Exceptions
sworn as a witness Elliott Wilkerson who testified to the Jury that on the evening of the 26^th December 1864 he together with the decesased Jack Lawrence went to Felix Graves to a party in this County they got there about dusk. They afterwards went to Maxville and got a Bottle of Whisky and returned, After they had been in the house a while witness had a difficulty with one Rose who had hit him in the face with his hat and he had caught hold of Rose and Jirked him down on the floor, The deceased Jack Lawrence came up and pulled witness away, and witness and Rose were separated, Where Rose then went he does not know, About a half hour after this witness touched Jack Lawrence on the shoulder and asked him to go out with him Witness and the said Lawrence went out to get a drink out of their Bottle which was hid over the fence about 20 yards from the house, This was about half past eight Oclock at night, there was no moon but only star light, and witness did not see Henry Gallespie or Young Rose untill they got out to the fence, Witness then saw Gallespie and Rose at the fence

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a short distance from where witness and Lawrence came to the fence. Gallespie was standing at first down near a pen that was there but afterwards came up to where witness and Lawrence was, Rose was near the fence, and witness had got over the fence where the Bottle was and Rose was on that same side. Gallespie and Lawrence were on the other side in the Yard close by where witness and Rose were, When witness and Lawrence came out and approached Gallespie and Rose the Defendant Gallespie said to witness that "this thing must be settled," Jack Lawrence said that two should not Jump on one," And then the Defendant said to Lawrence. "Do your draw that knife on me" And immediately fired his Pistol and shot the said Lawrence, the ball entering within an inch or two of the navel, Lawrence then ran into the house and Gallespie went off through the field, and witness never saw him any more till he saw him at this term of the Court. Lawrence lived until the next night about the same time of night When Lawrence was shot he was standing still and had not advanced on Gallespie and did not move his hands like

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striking at any one. Nor did witness see any knife in his hand

On x examination witness said that he and the said Lawrence had made an agreement to stand up to each other that night, Witness further stated that he was invited to the party, that M^rs Price a daughter of Felix Graves had invited him on Christmas day at Zephinia Websters to come to the party. Witness further stated when he went out to the fence where Rose and the Defendant were that Gallaspie asked him if he wanted to raise another fuss with Rose to which witness said no, that they had made friends, Witness and Rose made friends once or twice that night, Witness further stated that in the house when he was quarrelling with Rose that the Defendant Galispie had said to him that, "Rose was a small Boy and must not be run over,

Grundy Myers was then called and sworn he testified as follows,

Witness got to Grave's party about dark and when on the hill near the house he met deceased and Eliot Wilkerson going for whisky. Saw the difficulty at the upper Door, between Wilkerson and John

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Rose, after which Rose left the house crying and was absent for a quarter or a half hour, And saw Gallespie (the Deft) go in search of him, Next saw them at the Yard Fence about "fifteen or twenty steps from the upper door," and shortly afterwards deceased and Eliot Wilkerson came up, Rose seemed ^to^ be crying, Some conversation passed between Rose and Wilkerson, When Gallespie remarked that the difficulty must be stopped and deceased replied that two must not Jump on one Defendant said do you draw your knife on me, and then fired immediately instantly, Saw neither party have weapons at the time, the night was cloudy and very dark did not see any attempt on part of Lawrence to fight or to hurt Gallespie, I run as soon as the shot was fired don't know what became of the deft, after the shooting witness was about 14 Years old

The next witness introduced by the Commonwealth was Alexander May's who testified that he was in the house when the pistol fired and saw Jack Lawrence come into the house Lawrence then said I am killed Henry Gallespie has shot me for nothing Lawrence was shot near the navel and died next night about the same time

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time he was shot. Witness further stated that the defendant is a son in law of Felix Graves at whose house the party was, That Gallespie did not come into the house after the shooting as far as witness knows, And was not seen by him in that neighborhood afterwards Witness identified the Clothing of said Lawrence produced in Court showing the hole through the waistband and another through the right sleave of the Coat apparently made by a bullet

The next witness sworn for the Commonwealth was Harrison Sheumacker who testified [...] follows, did'nt see the shooting, was in the house — saw the Boy afterwards — deceased was smaller than accused, After he came into the house, said he was killed & killed for nothing, The deceased was a Boy some sixteen or seventeen Years Old and much smaller and younger than the accused

The next witness introduced and Sworn in behalf of the Commonwealth, was Eliza Long, who testified as follows, did'nt see the shooting, was in the house at the time Lawrence the deceased came in and said that Gallespie had shot him, Witness stayed there next day after the shooting

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with Jack Lawrence, Lawrence next day said he was going to die, After that he told witness that Henry Gallespie shot and killed him for nothing that he had no knife In the same conversation the said Lawrence asked witness to have some one to pray for him Witness testifeid that Lawrence and the Witness Wilkerson came together to the place of the killing before dark, and that some time afterwards before the shooting took place said Lawrence came to her in the house and told her that he and John B. Lawrence and Wilkerson had come there together and would "stand up to each other, if they got into a fuss" Witnes father testified, after his death saw the knife taken out of his pocket

The next witness was C. F. Bosley. C. F. Bosley, said he was sheriff of Washington County 1864 & 1865. He did not remember that he had any process for the apprehension of Defendant until since the April Term of this Court in 1865 after he got the process he was unable to find or learn the whearabouts of Defendant until in July last when he made arraingments with Some more men to apprehend him, which they did and brought him to Springfield before witness saw him

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He had never seen deft from the time of the killing until his arrest, Since witness got the process he had gone to the house of Defts father and in the neighborhood but neither could find deft or larn where he was

Here the Commonwealth rested her case

The first witness introduced was Benjamin Powell, Sworn and Examined in behalf of the Defendant Galispie, who testified as follows "to wit" I saw the fight, it begun in the house, between Rose & Wilkerson. Rose shook the door open which his hat was hanging, the hat fell, after the hat fell Wilkerson threw him down and stamped him, Saw John May's — this was 15 or 20 minutes before the shooting, I and accused went and brought Rose back. Afterwards Wilkerson came out, when we were at the fence, Afterwards went bach and brought Lawrence the deceased, and told Rose he would give him a "damn good beating if he did not hush." Saw Lawrence move on Gallespie striking with his hand as if stabbing at him. Gallespie backed five or six steps, It was a dark night, Saw Gallespie again that night at Jacob Good=

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=mans, Was at Mr. Grave's all day chopping wood

The next Witness Sworn and Examined for the defence was Hugh Cull who testified as follows, Was at Graves, saw part of the difficulty — Gallespie backed and Lawrence followed after, Gallespie asked deceased if he was going to kill him with a kinfe. Wilkerson came out with Lawrence, Wilkerson said something to Rose when Lawrence said towo should not Jump on One" Wilkerson said he would whip him again, although it was dark, still one could see the motion of an arm looking towards the sky, Gallespie back back and steped on his foot, an fired, could not see Lawrence as witness was immediately behind defendant, and it was very dark, but when the altercation begun deceased and defendant were five or six steps apart. defendant backed four or five steps in the direction of the fence and when he fired deceased was so close upon him that his clothes caught on fire, Witness on x examination said that he was not in the house when the shooting took place

The next witness Sworn was Mary Graves for the defence, Saw Wilkerson and

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Lawrence the deceased leave the room and go out of the room

The next Witness sworn and Examined in behalf of the defence was Margaret Price who testified as follows, She is a Daughter of Felix Graves, Wilkerson told Lawrence in the presence at the party he had made one damed son of a bitch hull from there. The witness being asked by Defts counsel if she was at Zephiniah Websters on the 25 Dec^r 1864 or had invited Elliott Wilkerson to the party at the House of her said father the Commonwealths attorney objected to the question being answered, the defts counsel then stated to the Court that the object of the interrogation was to contradict the Witness Wilkerson who had testified that said Margaret had invited him and Lawrence to come to the party when at said Websters on Christmas day but the Court sustained the objection and refused to let witness answer the question to which opinion and ruling of the Court deft excepted at the time and now excepts

The next witness Sworn and Examined for the defense was Amelia Frazier who testified as follows, was at the party

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Wilkerson told withens that if Henry Gallespie (the deft) did not mind he would get knocked over

The next witness sworn and Examined for the defense was M^rs Felix Graves who testified as follows, took a knife from deceased pocket after his death, deceased and Wilkerson were not invited to the party. It was and Ordinary Barlow knife, which was exhibited to the Jury

The next Witness Sworn and Examined for the defense was James A. Gallespie, who testified as follows, Witness was father of the accused, saw accused about 10 Oclock Same night. He had his vest and coat ^sleeve^ cut and his arm was bloody as if recently cut it was only a slight cut or scratch, had the appearance of being done very recently

The next Witness Sworn & examined in behalf of the defense was George C. Suttles who testified as follows, "to wit" I saw dec'd after his death and knew the knife exhibited to be deceased, had exchanged knives with him a day or two previous

The next Witness Sworn and Examined in behalf of the defense was Jacob Goodman who testifed as follows, saw accused on the night Lawrence was killed his right

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thumb was cut as well as his arm and lappel of his coat, arm was bloody, this was about 10 Oclock of the same night, Powell came to his house before Gallespie, they went away together. Witness recognized scar on the thumb of the accused as being the effect of the cut witness had seen before at his house

The next witness sworn in behalf of defense was John May's who testified as follows, Was at Graves the night of the killing. Saw Wilkerson and Rose quarrelling over a hat. I parted them nobody interfered but me:

The next witness Sworn and Examined for the defense was James Lowe who testified as follows, knew Wilkerson and Lawrence said they were going to the party,

And here the Defendants [...]closed their testimony

At the close of Defendants testimony the Attorney for the Commonwealth introduced and swore Jeptha Wilson, who testified in substance as follows, was at the party on the night of the shooting, did'nt see any of the fighting, heard the report of a Pistol outside, was dancing at the time shortly afterwards learned that John

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B, Lawrence was shot, Saw Hugh Cull dancing with defendants wife at the time the pistol was fired, Amelia Frazier [...]and Thadeous Anderson were also dancing in the same set with Hugh Cull when witness heard the report of the Pistol, Commonwealth then closed rebutting testimony

M^rs Felix Graves was then recalled in behalf of the defense, and in substance testified the following, Was in the house at the time the pistole fired, was positive that Defendants wife and Hugh Cull were not dancing at the time the pistole fired, they were dancing together earlier in the Night, When the pistole fired M^rs Gallespie was standing by the fire and run out of the room saying that somebody was shot

Miss Eliza Long was then recalled in behalf of of the Defendant, testified in substance as follows, Did not see Hugh Cull in the house at the time the pistole fired, was sitting on the foot of the bed at the time in conversation with a Miss Gallespie witness was positive that M^rs Gallespie was not dancing at the time the shooting took place

The Last Witness introduced for the defence was Thaddeous Anderson and

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and after having been sworn testified the following in substance, Was dancing at the time the pistole fired, don't remember who were dancing at the time don't think Gallespies wife and Cull were upon the floor when pistol fired, Saw Cull come into the house shortly afterwards does not remember to have seen him in the house where the dancing was going on for half hour or More before the shooting

Amelia Frazier recalled by the defence stated that she does not know where Cull was when pistol was fired, She was dancing with Thaddeous Anderson when the pistol was fired, but she does not remember who else was dancing

This was all the evidence in the Cause

Plaintifffs Instructions
Given
The Commonwealth attorney moved the Court to give the Jury instructions as contained on papers marked A. B & C, and severally numbered 1. 2. 3. 4. & 5. filed in this case, which are made parts hereof "to wit" "If the Jury shall be satisfied from the evidence that the accused Henry Gallespie in the County of Washington before the finding of the indictment herein, Maliciously shot

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and killed John B. Lawrence he is guilty of Murder and so they ought to find
Given
2 The deliberate killing of an other with a deadly weapon is presumed in law to be Maliciously and such presumption will be conclusive unless rebutted by evidence in the case
Given
3, If the Jury shall be satisfied from the evidence that the accused in the County of Washington before the finding this indictment shot and killed John B. Lawrence not in his necessary self defense. but shall have a reasonable doubt about the act having been done Maliciously, they should find him guilty of Voluntary Manslaughter and fix his punishment at confinement in the State Penitentialry a period of not less than two nor exceeding ten Years
Given
4. If the Jury shall be fully satisfied from the evidence that the defendant being armed with a loaded Pistol sought and brought on the quarrel with Lawrence with a view to get an excuse for killing him in that case nothing done or said by Lawrence can avail the Defendant as an excuse for the killing
Given
5 If the Jury beleive from the evidence that Gallespie alone or in conjunction with any other person was about to

41
wrongfully assault Wilkerson then Lawrence had a Right to interpose to prevent the injury to Wilkerson using no unnecessary force in so doing. To each and all of which instructions being given the Defendant by counsel objected but the court overruled the objection and gave said instructions to which opinion and rulings of the court the Defendant excepted at the time and now excepts

The Defendant moved the Court to give the Jury instructions filed in in the papers of this case and contained on paper marked "Defendants instructions" here made part hereof, to wit

Defendants Instructions
Given as Modified
1 If the Jury beleive from the evidence that the Defendant killed Lawrence in self defence they ought to find him not guilty and if Lawrence assaulted or moved on deft, and he had reasonable grounds to beleive he was in danger of sustaining great bodily harm or the loss of his life from such assault he might resist such assault and if necessary to protect his life or person from great bodily harm he might kill Lawrence if he had no safe menes of escaping
2 Whether there was in point of fact an actual necessity for the resort to the means used by Gallespie was a question to be decided

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Given as Modified
by him at the time and although he may have erred in his Judgment to the existence of such necessaryity Still if from the attendant facts and circumstances he in good faith beleived and had reasonable grounds for beleiving that his only safety was in using the meanes then in his power to prevent Lawrence from killing him or inflicting great bodily harm upon him the use of such meanes by him was excusable —
Misleading & refused
3 If the Jury beleive from the evidence that Wilkerson alone or aided by Lawrence was about wrongfully to assault or beat John Rose then Gallespie had a right to interpose to prevent the injury to Rose using no unnecessary force in doing so and if thereupon Lawrence to resist or prevent such interpositionference attacked Defendant in such manner or under such circumstances as to furnish the Defendant reasonable grounds for apprehending a design to take away his life or do him great bodily harm and there was reasonable

43
grounds for beleiving the danger imminent, that such design would be accomplised then Deft had a right to act on appearances and kill Lawrence if he in good faith beleived it was necessary for him to do so to avoid the apprehended danger.

Given
4 If the Jury have a reasonable doubt of the defendant being proved to be guilty they ought to find him not guilty

abstract, Misleading & refused
5, The burthen of proof rests upon the Commonwealth and the Plaintiff is bound to prove every single fact and Circumstance which is essential to the conclusion of guilt in the same manner and to the same extent as if the whole issue rested upon the proof of each individual and essential fact

abstract Misleading & refused
6 The evidence will not warrent a conviction unless it is of a conclusive nature, and any mere probability of guilt however great which falls short of rendering the guilt of the Defendant morrally certain is insufficient to warrant a conviction and so ought the Jury to find
Abstract misleading and refused
7. Whenever the probability of guilt is of a diffinite and limited nature whether

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abstract misleading & refused
in the proportion of One Hundred to One or One Thousand to one it cannot safly be made the ground of conviction,

Numbered 1. 2. 3. 4. 5. 6. & 7. to all of which the Attorney for the Commonwealth objected and the Court sustained the objection as to instructions 1. 2. 3. 5. 6 & 7, and overruled the objection to instruction No, 4, and gave the same, to the opinion and ruling of the Court in refusing instructions 1. 2. 3, 5, 6, & 7, the Defendant at the time excepted and now excepts

The Court then modified instructions No. 1, as follows "viz" by striking out of the 2^d 3^d & 4^th lines the following words "the Defendant killed Lawrence in self defence they ought to find him not guilty and if" and by instructing after the words reasonable grounds to beleive", the words "and did beleive that" and in the last line before the words" safe menes the word "others"

The Court also modified instruction No, 2, by inserting in the 5^th line after the words "at the time" at his peril" And in the 12^th line after the words "beleive and" in the opinion of the Jury" as modified the Court gave instruction's 1. & 2. the Defendant excepted

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to the act of ^the Court in^ modifying said instructions at the time and now excepts

The Defendant after instructions No 3.' had been refused moved the court to give the Jury as a new instructions so much thereof as is expressed in the 7. first lines thereof and including these words of the 8^th line "force in do so" and the Court so gave it Defendants counsel then copied the instructions which the Court gave as on their motion as modified by the Court as aforesaid which are contained on paper marked, "Henry Gallespie" and filed the papers and which is made part hereof. "Which is as follows, to wit"

First If the Jury beleive from the evidence that Lawrence assaulted or moved on Defendant and he had reasonable grounds to beleive and did beleive that he was in danger of sustaining great bodily harm, or the loss of his life from Such assault he might resist such assault and if necessary to protect his life or person from great bodily harm he might kill Lawrence if he had no other safe means of escaping

Second, Wheather there was in point of fact an actual necessity for resort

46
to the means used by Gallespie was in question to be descided by him at the time at his preril and although he may have erred in his Judgment as to the existence of such necessity, still if from the attendant circumstances and facts he in good faith beleived, and in the opinion of the Jury had reasonably grounds for beleiving that his only safety was in using the means then in his power to prevent Lawrence from killing him or inflicting great bodiliy harm upon him then the use of such means by hime was excusable

Third If the Jury beleive from the evidence that Wilkerson alone or aided by Lawrence was about wrongfully to assault or beat John Rose, then Gallespie had a right to interpose to prevent the injury to Rose using no unnecessary force in doing so

Fourth If the Jury have a reasonable doubt of the Defendants being proved to be guilty they ought to find him not Guilty,

The Clerk in making out the Record will copy the Defendants instructions as originally asked before any modification was made therein by erasur

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ures or interlineations as above shown

The Jury having found their verdict of conviction the Defendant filed his grounds and affidavits of himself and counsel M. R. Hardin. Thomas M^cIlvoy and W. O. Cunningham and of J. H. Noe Alexander Smith and Zach Pope and order of Court thereto attached, (For Grounds for New trial and aforesaid affidavits See page's 8. to 14) and moved the Court thereon to set aside the verdict and grant him a New trial. The Commonwealths attorney moved the Court to permit him to file and read on the Motion for a new trial the affidavits of Jonathan Edwards. W. B. Harrison C. B. Butner, A. G. Bevill John M^cIntire R. S. Peters, Z. Pope. and J. P Barbour and Defendants counsel objected to the filing and reading of all of said affidavits excepts those of Harrison and Butner and the Court sustained the objection and overruled the motion as to so much of said affidavits of the Grand Jurors themselves as detailed anything said or done of an improper character by the Grand Jury that found the indict

48
ment in this case or any number of said Grand Jury in the Grand Jury room, to which ruling and opinion of the Court the Defendant excepted at the time and now excepts and the Plaintiff also excepts, said affidavits are all made parts hereof (For affidavits see pages 17. to 23)

The Court overruled Defendants motion for ^a^ new trial and refused to grant the same to which action opinion and ruling the Defendant excepted at the time and now excepts and tenders this bill of exception's which he prays may by signed by the Court and enrolled of crecord which done accordingly

John E. Newman
Judge

I. James P Barbour clerk of the Washington Circuit Court do certify that the preceeding 48 pages contain a full, true and complete Transcript of the cause therein mentioned as appears from the Records and papers of My Office. This 7^th day of November A. D. 1865

James P Barbour clk
By William H Phillips D, C,

fee for Transcript charged to deft $12.50

Washington Cir Ct
vs
Henry Gallespie
Pardoned 10^th Nov/65