1^st
Henry Circuit Court
The Commonwealth
against } Indictment for murder
James Mitchell

Be it remembered that after the jury was Sworn to try the issue joined in this case, the attorny for the prisoner moved the Court for permission to make a Statement to the jury of the nature of the defence upon which the prisoner expected to rely- and of the evidence which he expected to introduce to sustain his defense, to which Motion the attorny for the Commonwelth objected. and insisted that Such a practice is unauthorised by the criminal code of practice: but the Court overruled the Exception of the atty for the Commonwelth, and Sustained the motion of the attorny for the prisioner and thereupon allowed the counsil for the prisioner to state the defence together with the evidence on which he expected to rely to the jury — and also allowed the attorney for the Commonweth to state the nature of the prosecution with the evidence upon which the Commonwealth Expected to rely, before the jury and all this before any evidence was introduced in the cause, to all of which the attorny for the commonwealth objected & excepted at the time. The Commonwelth then introduced M^rs

Nancy Smith who testified that she was the widow of J. A. Smith who was killed by the prisoner James Mitchell Her husband was about 53 years of age at the time he was killed, which occured about Sun down On the 10" of August 1863, on Six Mile, in Henry County Kentucky, The prisoner frequently passed by the residence of witness, along the big road, which was a few steps from the [...]door, In cherry time last year the prisoner was at the house of witness, and sat on the porch and eate cherries, and remained friendly with the deceased up to a few days before the death of her husband, On Friday evening before the death of her husband the prisoner was driving his ox team along the road near her house — her husband was in the orchard near the road in sight of the House, and her son, Presly Smith a boy of some 18 years of age was working in the garden on the oposite Side of the road from the orchard- Her husband & prisoner met and her husband asked the prisoner why he had attempted to force his son Presly Smith to treat the prisioner at the election at Lockport On the Monday before and told prisoner that Presly had not the mony or he would have treated the prisoner at the Election- prisoner told her husband that the matter about the treat at the election was not as Presly

had stated it- and finally both prisoner & deceased agreed to leave the matter to the persons who were present at the election and Saw what occured, Mitchell then drove off his ox team at the usual Speed, and her husband came to the house. He had not gone down there to attack Mitchell, and no attack was made by either party-

Witness Saw no more of Mitchell untill the next Monday evening, just before Sun down when he rode along the Same road, and Stoped at the gate in front of witness house and held a short conversation with Ms Brewer who was a cosin of the prisoner, & and who lives in a part of the Same house in which witness lives- M^s Brewer came back to the house, and Mitchell rode by in the big road towards the tobacco patch on the other side of the road, where her husband and her son William had been at work that day, About the time that M^s Brewer got to the house witness heard the report of a pistol down the road in the direction of where Mitchell had gon, She ran out and Saw Mitchell mount his horse and ride off in a gallop — She ran to the spot where her husband was lying in a path in the orchard- Some fifteen steps from the fence- He was dead when she got to him- his head was towards home and his face to the ground — The ball entered

his back and come out at his brest, passing, entirely, through the body, He was in his shirt sleeves- had been working in the Tobacco all day- was coming home to his Supper- it was his usual Supper time- He had no wepons about his person she never knew him to carry any wepons when he was killed he had not So much as a pocket knife about him, She Examined him, he had nothing in his pockets but his spectacles & Tobacco-

The ball entered at the back below the left shoulder and came out at the right brest some inches higher than where the ball entered at the back — The ground was nearly levell- about there, excepting that the fence stood in an old rater low place, some lower than the road or the orchard, the fence was Some 8 Rails high, The road was about on a levell with the ground in the orchard where the body of her husband fell. The bullet tipped the tops of the rail next to the top- the tip near about as high as a mans shoulders- The witness stated on cross examination that on Friday when her husband returned from where Mitchell was that he did not tell her in the —

2^d page
presence of Mrs Briant and Miss Roberts that he went out there to thrash Mitchell that he was a damnd rascal and a damned Abolitionist and he intended to kill Mitchell the first chance he got she did not tell Jonas Roberts or any one on the evening her husband was killed that he was too passionate and if he had minded her it would not have happened — Miss Sophia Smith was then sworn and introduced as a witness by the Commonwealth: and stated that she was the daughter of J A Smith that he was shot and killed on the 10^th day of Augst 1863 in Henry County under the circumstances detailed by her Mother witness was in her room up stairs on Friday before her father was killed- she was passing by the window and happening to look out she saw the prisoner and her father standing and talking- her father was in the orchard mosly in the same spot where he was shot The next Monday — he was standing in the little path leading through the orchard to the tobacco patch where he and her brother were in the habit of working about that time- her brother Prestley Smith was in the garden on the opposite side of the road and near the house of her father Mitchell was driving his team of Oxen along

the big road he stopped his team and he and her father were talking togeather for some little time, but she was not near enough to hear any thing that was said between them- She heard nothing like a quarrell between them, and there was nothing that attracted her attention to what took place on Friday between them- she merely happened to look out at the window in passing about the room and remembers to have seen them talking togeather, when the interview ceased between them Mitchell drove his team away at the usual gate for his oxen to travel, and her father came to the house — Her father had not gone from the house down to the orchard to meet Mitchell, but being out on the place happened to meet Mitchell there- Being asked by the counsel for accused what her father said about this interview, when he came to the house on Friday, witness stated that he said that Mitchell had tried to force his son Prestley Smith to treat him at the election at Lockport the previous Monday, and that he was telling Mitchell that his son would have treated him but he had no money to pay the treat- and that he and Mitchell disagreeing about how the matter occured at Lockport had agreed to leave the settlement of it to persons who were present when it occured —

3^d
Her father did not say any thing about his intentions to whip Mitchell or to attack him or any thing of that kind- neither did he speak of any dificulty between him and Mitchell on that day farther than already stated- when she got to the fence on Mondy evening after hearing the fire of a pistol she saw Mitchell mount his horse and ride away from near the fence opposite where her father was lying, went in a gallop Mitchell did not speak to her at the time and there was no person with or near Michell at the time,, They brought her fathers body to the House the ball had passed entirely though the body entering at the back and coming out at the brest- He was lying in the path leading through the orcherd to the tobacco patch where he & her brother William had been at work that day- It was about Sun down her fathers usual time to return home to supper & he was one his way home and in his usual path when he was shot- She did not see her father untile after he was shot, He fell with his face to the ground and with his head towards the house- His back towards the road when she saw Mitchell mount his horse. The horse seemed to have been hitched to the fence on the

opposite Side of the road from where her father was lying dead — and her best recollection is that when she first saw Mitchell he was in the act of unhitching and mounting his Horse He road away in a gallp in the direction of Sol Roberts his father in law who lived a mile or so further on the road — Her father had no weapons of any kind about him at the time — not a pocket knife —

The ball entered below the left shoulder and come out at the right brest some higher than where it entered the back

The Commonwealth then introduced William Smith who being duly sworn. testified That on the day that Mitchell shot his father he & his father had been working in the Tobacco patch back of the orchard- they had gon to the patch at the usual time after dinner — went along the usual path that led through the orcherd. They had finished their days work and were going home to supper along the Same path through the orcherd- There were Some black berry bushes through the orcherd in places and the berrys were then ripe. Witness halted at some bushes & was eating some black berries- and his father had

gotten some 10 or 15 Steps ahead of witness, and was within a few steps of the lane fence near the public road when He heard Mitchell order his father to get over in the big road — He heard his father tel Michell that he (his Father) had no weapons to defend himself with and that Mitchell had & that he would not get over in the big road — as soon as his Father told Mitchell this his Father turned his back towards Mitchell and started on towards the house- when Mitchell fired his pistole and his Father fell dead in his tracks- His Father had made no attack upon Mitchell and had nothing about him to make any attack with Witness saw the pistole in Mitchells hand Mitchell immediately mounted his horse On the opposite Side of the road and road off in a gallop — without waiting to see wheather his Father was dead or not. His Father never Spoke after he was shot, Witness was Examined before the Examining Court and his reccollection is that he made the same statements there Witness was asked if he was not a witness in trial in Examining Court He said he was, and that on that trial he did not state that he did not see Mitchell untile he was on his horse riding off, He made ^no such statements, Is about 14 year old-^