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Preamble
Pleas before the Hon^l Thomas C. Dabney Judge of the Caldwell Circuit Court, at the Court house in the town of Princeton, Caldwell County, Kentucky, on the 8^th day of December 1860.

Style
The Commonwealth of Kentucky Plff
Against } Indictment for Murder
Thomas B. Wadlington Deft

Be it remembered that at a Circuit Court held at the Court house in the town of Princeton Ky, on Wednesday the 6^th day of June 1860, the Grand Jury of the County of Caldwell, returned into Court an indictment against the defendant Thomas B. Wadlington, and William J. Wadlington, which reads as follows, viz:

Indictment
The Grand Jury of Caldwell County in the name and by the authority of the Commonwealth of Kentucky accuse Thomas B. Wadlington and William J. Wadlington of the crime of Murder, committed as follows viz: The said Thomas B. Wadlington and William J. Wadlington on the 17^th day of January 1860 in the County aforesaid did feloniously, and with malice aforethought kill and Murder Milton A. Cartwright

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by shooting him with a gun and pistol and by striking him several times on the head and and body with the blade and poll of an axe, against the peace and dignity of the Commonwealth of Kentucky.

C. D. Bradley
Comm'lth's Atty pro. tem.
Jas Kirkpatrick
Foreman of the Grand Jury

Trial
And afterwards at a Circuit Court held at the Court house in the town of Princeton Ky on the 28^th day of November 1860, Came the attorney for the Commonwealth and said defendant was led to the bar in custody of the Jailor and professing to be ready for his trial, waived arraignment acknowledged the identity of his person, and pleads that he is not guilty as charged in the indictment, and thereupon came a jury, viz: John Edwards, Clayton Gilliam Thomas Jones, Robert Wilford, James Richardson, Thomas Wynn, Nathan Wallis, William M. Gladish, Moses Malone, Crawford Adair W. H. Stewart and J. H. Lawrence, who were elected, tried and sworn well and truly to try the issue, and a true verdict render in this case and there not being time to

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hear the evidence, this evening further proceedings herein are ordered to be continued until tomorrow morning, and thereupon Jesse Stevens Sheriff of Caldwell County, took the oath required by law in reference to taking charge of said jury, and the jury and Sheriff having first received a charge from the Court, the jury were committed to the keeping of said Sheriff until morning 9 o'clock.

And on the next day, viz: on the 29^th day of November 1860 at the Court house aforesaid.

Trial cont^d
Came again the attorney for the Commonwealth, as well as the defendant in custody of the Jailor, and the jury empannelled and sworn herein on yesterday appeared in charge of the sheriff and took their seats, and having heard the evidence in part, and there not being time to conclude this evening, further proceedings herein are ordered to be continued until tomorrow morning, and the jury having again received a charge from the Court were placed in charge of the sheriff; whereupon the defendant is again remanded to jail.

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Trial contd
And afterwards on the next day, viz: on the 30^th day of November 1860, at the court house aforesaid — Came the attorney for the Commonwealth as well as the defendant in custody of the jailor, and the jury empannelled and sworn herein on Wednesday last, this day appeared in charge of the sheriff and took their seats, and the evidence being heard in part, and there not being time to conclude this evening, further proceedings herein are ordered to be continued until tomorrow morning, and the jury having again received a charge from the Court were placed in the keeping of F. W. Dodds deputy sheriff of Caldwell County the said Dodds having first taken the oath required by law in regard to juries.

Trial Cont^d
And afterwards on the next day, viz: on the 1st day of December 1860 at the Court house aforesaid-

Came again the attorney for the Commonwealth and the defendant in custody of the jailor, and the jury empannelled and sworn herein on Wednesday last this day appeared in charge of the Sheriff and took their seats and having heard the evidence in full and argument of Counsel in part, and there not being time to conclude this evening

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further proceedings herein are ordered to be continued until tomorrow Monday morning 9 oclock, and the jury having received a charge from the Court were placed in the keeping of Jesse Stevens Sheriff of this County.

Trial Continued
And afterwards on a subsequent day of the same term, viz on the 3^rd day of December 1860 at the Court house aforesaid — Again came the attorney for the Commonwealth as well as said, defendant in custody of the jailor, and the jury empannelled herein appeared in charge of the sheriff and took their seats, and the evidence being heard in full and the argument of counsel in part and there not being time to conclude this evening, further proceedings herein are ordered to be continued until tomorrow morning, and the jury having again received a charge from the Court, were placed in the charge of F. W. Dodds deputy sheriff for Caldwell County.

And afterwards on the next day, viz: on the 4^th day of December 1860, at the Court house aforesaid — Again came the attorney for the Commonwealth, as well as said defendant

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in custody of the Jailor, and the jury sworn herein on a previous day appeared and took their seats, and the argument of Counsel being heard in part, and there not being time to conclude today, further proceedings herein are ordered to be continued until tomorrow morning 8 oclock, and the jury having received a charge from the Court were again placed in charge of deputy sheriff F. W. Dodds.

Trial Contd
And afterwards on the next day of said court, viz: on the 5^th day of December 1860 at the Court house aforesaid,- Came the attorney for the Commonwealth and said defendant again appeared in custody of the jailor and the jury appeared and took their seats, and the argument of Counsel being concluded, and the jury failing to agree further proceeding herein are continued until tomorrow morning, and the jury were again placed in the charge of the sheriff.

And afterwards on the next day viz: on the 6^th day of December 1860 at the Court house aforesaid —

Came the defendant in custody of the jailor, and the jury sworn herein appeared

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Verdict
in care of the Sheriff and after reti[...]ring to their room returned the following verdict, viz: We the jury find the defendant Tho^s B. Wadlington guilty of Murder as charged in the indictment

John Edwards

Whereupon said prisoner is remanded to jail.

And afterwards on the next day viz: on the 7^th day of December 1860 at the Court house aforesaid —

Came the parties aforesaid by attorney and said defendant filed reasons herein and moved the Court to grant him a new trial herein for the following reasons, viz:

Reasons for new trial
1st That the finding of the Jury was contrary to the law. 2^nd That the verdict of the jury was contrary to the evidence — 3^rd That the verdict of the jury was contrary to the law and the evidence — 4^th That the Court erred in refusing to allow William Wadlington to testify in behalf of defendant, when offered by him, because of his being jointly indicted with him, and had been seperately tried, and convicted of Manslaughter, but on which conviction no

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X
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judgment had been rendered- 5^th Because the order of this Court was that the jury in this cause was to be copmposed of jurors from the County of Trigg, when in fact one W. M. Gladdish who served on said jury was a citizen of the County of Christian — the defendant not knowing him as other than a ctitizen of Trigg County- 6^th That the Court erred in refusing to permit William Wadlington Sr to state the conversation between William Wadlington Jr and Thomas B. Wadlington, and in refusing to permit said William Wadlington Sr to state what communication was made by William Wadlington Jr to Thomas B. Wadlington as to the threats made by Cartwright against said William Wadlington Jr and against Thomas B. Wadlington on the day before the homicide occurred, 7^th The court erred in granting certain instructions, and in refusing certain others. Motion for New trial overruled And the argument of Counsel being heard upon said motion, and the court being sufficiently advised of and concerning said motion do consider that the law is for plaintiff, It is therefore ordered that said motion be over-

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ruled. To the opinion of the Court in overruling said motion the defendant excepts

And afterwards on the next day, viz: on the 8^th day of December 1860 at the Court house aforesaid —

Appeal granted
The defendant was again brought into Court, and with leave of the Court filed Bills of exceptiosns and evidence, which are ordered to be filed among the papers herein, and prayed an appeal to the Court of Appeals of Kentucky. And the defendant 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. Judgment It is adjudged by the Court that the defendant be taken to the jail of Caldwell County, and there safely kept until the first day of March 1861, on which day between sunrise and sunset the Sheriff of Caldwell County shall hang him by the neck until he is dead.

Here follows the evidence, which reads thus: —

Witness Wm OHara proved that he

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Evidence of W^m O'Hara
married a daughter of James A. Cartwright father of deceased Milton Cartwright. He laid down a diagram of the land of the late James A. Cartwright and showed its boundaries, proved that a part of it lay on the north and part on the south side of the old state road leading from Princeton to Hopkinsville the dwelling and appurtenances all on the north side He stated that Nichols lived on the north side eastwardly of the said dwelling. That the piece of ground where the body of Milton Cartwright lay as shown him was on the south side of sd road still further east of Eli Nichols house and 40 or 50 yards from said road, and upon land owned by said James A. Cartwright at his death, and outside of his enclosure. About 9 years ago the prisoner married said James A Cartwright's widow who had remained in the mansion, cultivating the land on the north side of the road and 15 acres on the south side, from her husband's death. He had seen prisoner's hands over getting timber to make a barn shed off the land on the south side within the enclosure after his marriage. He stated

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the timber on said tract consisted of two strips of timber inside the enclosure on the south side and two small squares outside the enclosure on the same side. The deceased Milton Cartwright had lived on and cultivated the open land on the south side (except the 15 acres which was on the road opposite Prisoner's house) two or three years.

Evidence of John Prince
John Prince proved on Tuesday morning on the 17^th January 1860 the day Milton A. Cartwright was killed I and Blalock went to the woods to split rails in the employment of deceased Cartwright. we commenced in the woods on the south side of the road near Nichols house about 15 or 20 steps from the road. The timber had been previously cut. We worked off from the road and back near the road again before we eat dinner. Early in the morning Eli Nicholes passed by them. He did not ask Nichols if he saw Tho^s Wadlington going to the woods with his gun that morning. Did not tell Nichols we made William Wadlington leave the woods the day before and he had not come back, nor did Blalock.

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About 8 or 9 o'clock prisoner and son William and servants went by them to the woods, prisoner had the gun. The others had axes and one of the slaves had a waggon. They passed along the road a few yards from us, They went into the woods south east of us and south of where the body lay. About 10 or 11 oclock prisoner passed back going towards his house without the gun. William Wadlington and the hands went back about 12 oclock or dinner time, William Wadlington with the gun; After dinner Thomas Wadlington, William Wadlington & hands returned to the woods, prisoner carrying the gun. They commenced cutting on the side of the hill east of them 25 or 30 yards, could not tell exactly the distance and we heard the tree fall. About 12 oclock or dinner time the deceased came to where we were splitting rails and brought our dinner. When the tree fell Cartwright said boys come and go with me I want to have a conversation with Wadlington about cutting my timber. We could see the top of the tree, heard the cutting and heard it fall. We went up to where the tree

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Evidence of John Prince Contd
was cut. I being near Cartwright, and Blalock some 6 or 7 steps behind. Thomas B. Wadlington was sitting on the tree near the stump, with the gun across his left arm with his hand upon the breach. When Cartwright approached within two or three steps of the tree or Wadlington, deft remarked dont you approach me, Cartwright continued walking and defendant said M^cCartwright God damn you dont approach me any nearer. at this deft rose from the log and stepped back 6 or 7 steps, still facing Cartwright. Cartwright was about two steps of the log when Wadlington spoke last. X He continued advancing without speaking until he stepped across the log when he sat down on it facing deft and with his feet to the south. Cartwright asked him if he was going to cut that tree into fire wood. Wadlington said he was. Cartwrignt said you shall not and Wadlington said I will show you, and remarked boys trim up that tree; and after the tree was lopped deft asked his son William if he had a two foot measure on his axe handle

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he said he had not. Deft then said never mind we can guess near enough. Cartwright remained sitting on the log and deft standing with his hand on the lock of his gun, his left on the barrel with the muzzle somewhat elevated. Deft then lowered his gun and stepped up to the log and put his finger on the log and told his son to mark it there, which he did, it was some ten or 11 feet from the butt. Deft then stepped back walking backwards bringing his gun to the position it was before he went up. William Wadlington stepped back for some cause and Cartwright moved and sat down on the mark made by William. Deft directed William to cut the log off, he said how can I Pa when Cartwright is sitting on the notch? He then said cut it off above. William approached the marked place and as he did so Cartwright got up an stepped sideways towards the butt on the same side deft was, turned round facing William. At that moment witness heard the lock of the gun and deft brought the gun to his shoulder, Cartwright turned himself partially

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around facing Thomas B. Wadlington at that instant the gun fired taking effect in the left breast, Cartwright clapped his left hand upon his breast dropped his head, and turned it left and right, and drawing his right hand from his breeches pocket drawing a pistol and raised his head and firing shot deft. Cartwright staggered back towards the butt of the tree, deft threw his gun down drew a pistol and fired, and advancing upon Cartwright still reeling put his left hand to Cartwright's shoulder putting his pistol near him shot him in the back. Witness ran up and caught at Cartwright to get him away. just then William caught witness by the shoulders saying you sha'nt interfere and pulled him back. Witness jerked away from William, when Jourdan one of deft's slaves ran up and said if he interfered in that way he would cut him down and struck at him with an axe, witness dodged out of the way and went around the butt of the tree near where Blalock stood. William called to John another of deft's slaves to bring him axe, and

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John brought it, and William took the axe and taking Cartwright by the hair struck Cartwright three blows with the blade of axe on the back of the head. Deft still having hold placed the pistol near his head and shot him in the head about the right ear, Cartwright then fell and William then struck Cartwright an over handed blow on the forehead. Deft then took the axe and struck him two blows. Witness went quickly down to the road and called Eli Nichols, didn't remember what he said but thought he told him Wadlington had killed Cartwright. Eli Nichols came past him as he went in the direction of the parties. Witness did not return with Eli Nichols but went to Cartwright's house, got a horse and- to OHara's to tell him, & told him what had happened. OHara lived about 2 ¹/2 miles from the place of the killing, returned by Mrs Hunters about ¹/4 mile from OHara's and had a brief conversation with Richard Hunter, in which he told him Wadlington had killed Cartwright, Mrs Hunter, Gid. Scott & others were there, was riding hurriedly and Hunter hailed him

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Evidence of Prince Contd
Went by Monroe Pool's and saw him & John Ford and told him Cartwright was killed by the Wadlingtons and then went to Cartwright's house where the body then was. Did not say to Buck Hunter at Mrs Hunter's house on the evening of the killing that Tho^s Wadlington did all that was done, did not tell him that deft had killed Cartwright and W^m had done nothing but hit at witness with his fist. Dont remember telling Pool deft had shot Cartwright and I left him beating him on the back. Did not in presence of Thomas Johnson at Cartwright's say deft had killed Cartwright and William had done nothing but prevent witness. From the time they started from where they eat dinner to where Wadlington was & until deft shot him with the gun he had his hands in his pockets. his left hand with his thumb out and his right hand in, thumb and all. It was his habit to carry his hands in his pockets, never knew him to carry a pistol before. Had lived with Cartwright the previous year.

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Evidence of James Blalock
James Blalock proved he was present when Cartwright was killed, he and Prince were splitting rails 15 or 20 steps from the road. Thomas Wadlington & son passed out in the morning to the woods. Deft had a gun on his shoulder, deft staid one hour or two. Saw him go back to dinner about 10 oclock. William & hands returned about dinner — W^m with the gun. Cartwright came down about 12 oclock and brought our dinner. William Wadlington went home after Cartwright came down. We moved about making rails where the timber was cut, and when Cartwright brought our dinner we were some 50 yards from the road. deft & son returned from dinner & deft had the gun. When they returned Cartwright was with us, when we were eating dinner we heard chopping and soon after a tree fall. Then Cartwright said to me and Prince I am going to talk to Wadlington about cutting this timber and I want you to go with me. Cartwright started and we behind him, and when we got there I was about 10 steps behind. When we got there deft had his gun

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and said dont you approach me any further. M^cCartwright God damn you dont approach me any further, Cartwright sat down on the log and asked Wadlington if he was going to cut up that for fire wood. Deft said yes, Cartwright said that he could not, it was too good for fire wood and fit for rails, that there was other wood timber a plenty which he could get, Deft said he would show him and directed William to cut the log off, and put his finger on the log saying he would guess well enough. William cut a notch in the log and moved back, and Cartwright moved, then sat down on the notch, and William went towards it with his axe. Tho^s the deft had stepped back with his gun presented. I spoke to them to tell them to settle the matter, when William came up, deft stepped back 7 or 8 steps with his gun in his hands in a shooting position. Cartwright had his face to William, Deft cocked his gun, Cartwright tuned his face to him and had his hands in his pockets all the time. When he turned his face deft shot, Cartwright then

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put his left hand on his breast and drew his pistol & fired. Deft then drew his pistol and fired, and then ran up and put his hand on Cartwright's shoulder and fired again. Prince then ran up and tried to pull Cartwright away, and William pulled him back and Jourdan ran up and drew his axe on Prince and told him if he attempted to interfere he would slay him. Prince then jumped or ran out of the way. William then told John to bring him the axe, and William struck Cartwright two or three licks on the head. Then deft shot him in the head & he fell and William then struck him an over-handed lick on the head after he fell. Prince ran off towards Nichols and I after him, thinking he was hurt. Prince called Eli Nichols and I started back and met William and his father in a direction of the road, deft sitting down with a wound in his leg. I went on towards Cartwright and William stopped me and said I could not got any further I asked if Cartwright was dead, and he said, if not damn him he soon would be. He had two

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Evidence of James Blalock Contd
pistols in his hand. I did not go any further as I was not willing to risk him, I then helped to carry his father to Nichols house, William offered me the pistols and I would not take them He then gave them to Richard Deering. Cartwright had neither hand out of his pocket after leaving the stump where they dined & before drawing out his left hand and after being shot, I had been living at Cartwrights 17 days cutting timber & making rails, we cut timber the day before, no one with me and Prince. Cartwright came where we were at work. Never saw deft & son there cutting timber before the day before the killing. We were 50 or 60 yards from the road when we eat dinner, Cartwright brought dinner about 12 oclock, It was set on a stump and I and Prince stood around, thinks Cartwright eat with us. Cant say whether I said before he eat with us or not. Dont think I said before he kept his hands in his pockets while we were eating. It was about 80 yards from where he was killed to where we eat dinner. We could see the tree, some small bushes intervened

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in the way, Cartwright & Prince went ahead of me, Cartwright was in a few steps of the log when deft accosted him. Deft was sitting on end of the log or stump, he did not know which, Deft as Cartwright came up said dont approach me neaarer, and repeated it, God damn you dont approach me nearer. I was 8 or 10 steps behind. Prince was nearer, Cartwright stepped over the log and sat down with his back to witness. The tree was 2 or 2 ¹/2 feet through at the butt. Wadlington got up with his gun in his hand as he first spoke to Cartwright, after setting there Cartwright asked deft if he was going to cut up all that good timber into wood, deft said yes, Cartwright- you shant — deft said I will show you — When Cartwright first came up he sat on the log about 5 feet from the butt. There were five shoots. Cartwright one, after he fell William struck him with the blade of the axe over the eye. Cartwright's hat was off when William had him by the hair. Did not see deft use the axe after Cartwright fell Did not say to Norflett Jones and S. C. Campbell that Cartwright said come

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on boys I want you to go with me I dont want deft to have all the law on his side, Did not tell same to Coroners Inquest. Did not tell A. J. Lamb in Hunter's presence deft did all that was done and W^m Nothing. Did not tell Eli Nichols that witness, Cartwright & Prince had driven off William and hands the day before. Did not enquire of Nichols if he saw deft and hands pass that morning, but saw them pass and thinks he spoke to William. Did not tell Eli Nichols that we drove off William the day before. Did not tell A. J. Lamb that William did nothing but catch Cartwright by the hair and pull him down. Did not tell Lamb I did not know who shot first. When Cartwright looked around to deft just before the first shoot, deft was bringiing his gun to his shoulder. When the first shot was fired Wadlington and deceased were standing erect. deft on the lowest ground, also when Cartwright shot him. Witness stopped 8 or 10 steps off when deft first spoke to Cartwright, expecting a difficulty.

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Evidence of Joseph Hart
Also the testimony of Joseph Hart.

About the 17^th Jany, saw Milton Cartwright in a dying condition, did not at first know him, he was covered with blood & the blood was running from his wounds & from his mouth & nose as he breathed. He saw a gun lying not far from the body 10 or 12 paces & an axe- no one was with Cartwright- Cartwright was lying in the wood near a tree that had been cut down, paralel with the tree, about six feet from the body of the tree & about 15 feet from the butt of the tree his head towards the top of the tree- that Cartwright was lying on his back his hands lying streatched out & one leg drawn up. The body had a wound in the left breast ranging to the left shoulder, a shot wound in the right arm a shot wound in the right side — a shot wound behind the ear & passing through the head & passing through the head & coming out behind the ear on the other side & wounding the ear, on the lower part, a cut in the right hand, in the palm of the hand — a cut over the left eye, missing the ball of the eye & injuring the bone in the outer corner of the eye, the

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Joseph Hart's evidence Contd
wound let the eye brow fall over the eye did not think that the skull was fractured or that the wound penetrated the brain, a cut over the right eye, near the edge of the hair, thought it went to the bone — There were three contusions on the back of the head, the skin was broken & the blood was oozing from the place, thought the wounds were inflicted with a blunt tool — That the reason he came to see Cartwright where he was killed, was that he had agreed to do some work for Cartwright & came to see him about it, went to his house ^and he was not at home^ & he was informed that he had gone out in the woods, he went to seek him out & when he was in a quarter of a mile of where he found Cartwright, or thereabouts, he heard the report of two guns the reports were in quick succession, thought it was some one shooting a squirrel with a double barrel gun, & shortly after, he heard other firing, that he went to where he heard the firing & found Cartwright as stated; was on the jury of Inquest. It was about ³/4 of an hour from the first shooting till Cartwright died.

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Evidence of Pleasant Conway
Also the testimony of Pleasant Conway,

He was the Coroner of Caldwell County & that on the day after the killing in the evening, at the house of Cartwright he held the inquest & examined the wounds on the body. There were six buck shot wounds in the left breast, two of the holes larger than the rest as if two shot had penetrated one hole, & they ranged towards the left shoulder, one shot wound in the right side, one in the right arm, one through the head entering behind the ear & coming out behind the ear on the other side, cut on the left eye brow, thought the wound penetrated the brain & thought the brains were oozing from the wound, there was a cut or hole on the right said of the head, there was a cut across the palm of the right hand deep, & there was a cut on the neck below the left ear & there were three bruises on the back of the head, the skin was broken — produced the clothing- a coat & pants & two pistols, that he got said pistols from Eli Nichols' house the evening of the killing. & produced a shot gun which he also got at Nichols' & had

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kept them at the clerk's office ever since. Witness produced the coat & pantaloons taken off the body, also the gun & pistols. They had all been recently fired when he got them, the gun empty, the small pistol once, the large one three times & one cap exploded without firing. The place of the killing is in Caldwell County.

Evidence of L. J. Cartwright
L. J. Cartwright says the coat & pants belonged to the deceased and had them on after he was dead, and the gun he has seen at Genl Wadlingtons supposed that it was General Wadlingtons gun. Had gun repaired last Christmas it belonged to deft's father.

J. E. McGowans Evidence
J. E. M^cGowan says he saw decd in the evening of the same day he was killed, after he was removed from the ground where he was killed to his house, saw shot in breast in right side and arm, cut in the hand and over the eye, the cut over the eye seemed to reach the brain I thought I saw brain- also saw shot in the head and bruises on head.

Thomas S. Johnson says he was on the Coroner's Jury and saw

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Evidence of Tho^s S. Johnson
shot 6 in number in the breast of decd. one shot in the head, one in right arm & side, gash over eye — cut in the hand, thought he saw brains from gash over eye, not certain, saw bruises in back of the head 3 in number.
X

W^m J. Wadlington who was jointly indicted with deft offered by the defence, objected to by Commonwealths & objection sustained and excepted to by defendant.

Bill of Exceptions
The Bill of exceptions reads as follows

Be it remembered that on the trial of this cause, the defendant Thomas B. Wadlington offered to introduce as a witness in his behalf William J. Wadlington who was jointly indicted in this case with Thomas B. Wadlington & tried seperately at the last term of this Court and convicted by the jury for manslaughter & 8 years in the Penitentiary of this state, said William not having been sentenced by the Court & a motion pending for a new trial for said William, and the record in the cause being considered as heard read, upon argument the Court overruled the motion to permit said William Wadlington to testify in said behalf. — To which

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opinion defendant excepts and prays that this bill of exceptions be signed &c.

Tho. C. Dabney

Evidence of Wm H. Edmunds
W^m H. Edmunds was introduced by the defendant and stated as follows —

That about the 20^th March after the killing, that he went to where he was informed the killing occurred, & that in the presence of Eli Nichols he made a survey of the grounds where the killing occurred, & those adjacent thereto. That he made a diagram which was used on the trial to the jury on paper it is here filed & gave the explanation of the diagram. The road which passes near is the old Hopkinsville road running from east to west about 15 degrees, Eli Nichols' house is on said road about 186 yards from said place where the killing occurred, in a direct line: That the tree where the killing occurred is 44 yards from the Hopkinsville road, that a cart path leads south to the tree from the road. The tree lies due east & west, top to the west & across the path, that the tree had a chop upon it between 10 & 11 feet from the butt, that the body of Cartwright

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was represented to him as lying paralel with the tree & in this cart path on the south side of the tree — the head towards the top of the tree — that to the westward 110 yards due west the place near by a drain was pointed out as the place where Cartwright & Prince & Blalock took dinner, that from this point to where the tree was cut down the view was obstructed by a tree cut down that had the leaves upon it & obstructed the view. That a path led from this point where the parties took dinner to where Wadlington was, or the tree that he cut down, that it led on the north side of the tree & in about 10 paces of the log that Wadlington had cut down, and where the killing occurred; the tree cut down was 21 inches in diameter, about 66 feet long & about 13 feet to the first large limb. That on the souNorth side of the tree close to the butt was a stubbed bush with limbs & another as represented on the diagram. That on the the south side of the tree 33 feet to the south west of the tree cut, is the other tree cut & spoken of & the stump of said tree & 16 feet back; that the

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ground was a gentle slope from the branch where Cartwright & Blalock eat dinner to the tree cut Wadlington That he knew nothing about where Cartwright was killed except as it was represented to him & that neither Prince or Blalock showed him the ground or were with him when he made the survey I have marked diagram with my name.

Deft then offered James A. Cartwright's will. The renunciation thereof by his widow, the orders of the County Court appointing coms to assign dower and orders thereof, article of agreement between W^m OHara Exr of said Cartwright and said widow which was proved by F. W. Urey subscribing witness, deed from widow to OHara and deed from said Exr to her. To the reading of which Commonwealth by her counsel objected but the objection was overruled, and papers read, to which opinion of the court the said Commonwealth then excepts & now excepts.

Here follows the will of James A. Cartwright Decd, viz:

I James A. Cartwright of the County of Caldwell and state of Kentucky being

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Will of James A. Cartwright Decd
weak of body, but of sound mind and disposing mind and memory, and calling to mind the uncertainty of life, and thinking it right to dispose of the earthly goods wherewith my Heavenly Father has blessed me (for which I most unfeignedly thank him) after committing my soul to his paternal care, do hereby make, ordain and constitute this to be my last will and testament, in the words and figures following, viz:

1st I give and disclaim unto my present beloved wife all the negroes and lands contained in a certain marriage contract between her & myself as it now stands of record in the clerks office of the Hopkins County Court.

2^nd I likewise bequeath unto her all the household furniture received by her at the time of our marriage and also one hundred and six dollars in money.

3^rd I likewise give unto my wife three hundred dollars in money.

4^th I likewise give unto her the north-west room (up stairs and down stairs) of my present dwelling house, during her life, should she see proper to live in it, and use of passages, therewith annexed,

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Will Contd
and the land on the north side of the tract which I now occupy, (with the exception of a 30 acre tract of land) being being about one hundred acres, the same being on the north side of the old state road, If she should not live on it, it is not my wish that she should have the privilege of renting any of it out from year to year. 5^th And as I have heretofore given each of my four married children, five hundred dollars each in negroes and other property, they are to have no more until my other children receive the same amount out of my estate my married children being Mary Frances wife of W^m OHara, Arabella wife of John Wall and Eliza wife of John Redd and Joseph L. Cartwright my unmarried children being Elizabeth E. Sarena M. James T. Lucien J and Elvira A. Cartwright and Milton A. Cartwright

6^th My will and desire are that all my just debts be first paid, and in order to effect the same, my executors hereinafter named, have full power and authority to sell and convey all lands of every description upon such time and terms as they or either of

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them in their discretion may think proper, also my negro and personal property, should they deem it necessary, executing all the right that I have to said property, real personal or mixed, they or either of them and to compromise all law suits and difficultierences that may arise in the course of my business, if they can.

7^th As my children marry or come of age I wish them to receive their portion by way of advancement of five hundred dollars as my older children have heretofore received in a young negro or other property, if convenient, to that amount

8^th After all my children shall be made equal as above specified & my debts shall have been paid I wish the balance of my property then to be equally divided amongst them all.

9^th And lastly, I hereby constitute and appoint W^m OHara my son-in-law and Joseph L. Cartwright my son Executors of this my last will and testment,

In Testimony whereof I have hereunto set my hand and affixed my seal this 17^th day of August 1848.

J. A. Cartwright {Seal}

Witness
James C. Weller

35

T. L. McNary
W. W. Watkins
Wm Cash

State of Kentucky
County of Caldwell Sct
November Term 1849

I James C. Weller clerk of the Caldwell County Court do certify that this last will and testament of James A. Cartwright Decd was this day produced in open Court and proven in due form by the oaths of James C. Weller & William Cash subscribing witnesses thereto and the same was ordered to record. Whereupon I have truly recorded the same and this certificate in my said office.

Given under my hand this 19^th day of November 1849.

James C. Weller clk

There follows the renunciation of said will by the widow, reading thus:
Caldwell County Court, June Term 1850
June 17^th 1850

Renunciation of the widow of J. A. Cartwright Decd
This day Mary A. J. Wadlington Cartwright widow of James A. Cartwright Deceased filed in open Court a renunciation of the provisions made for her in the will

36
of said Decedent, which being proven by the oaths of George W. Barbour, James W. Weller and James K. Minor, subscribing witnesses thereto, is ordered to be recorded viz:
"To the Honorable County Court of Caldwell County — Your petitioner Mary A. J. Cartwright would respectfully state to your Honorable body, that she as the widow of James A. Cartwright Deceased is not satisified with the provisions made for her by the will of her late husband James A. Cartwright Deceased, which will has been duly proven before your honorable body, and ordered to record, and she here declares that she will not take or accept the provisions made for her by said will or any part thereof, and she here renounces all benefit which she might claim by said will, and she here asks your honorable body to appoint Commissioners to allot and set apart to her, dower in the estate of her late husband the said James A. Cartwright, he having died within a shorter time than one year previous to this application. In Testimony whereof the said Mary A. J. Cartwrignt hath hereto signed her name and affixed her seal, this 13^th June 1850.

37.
Mary A. J. Cartwright {Seal}

Attest
G. W. Barbour
James W. Weller
James K. Minor

Coms appointed by County Court to Allot dower
And on ^her^ further further application it is ordered that F. W. Urey, Thomas Kevil, James Cantrell and Johnson Laughlin (any 3 of whom can act) be and they are hereby appointed Commissioners to allot to the said Mary A. J. Cartwright her dower in and to the estate of her late husband, and report thereof to this Court.

And afterwards at the September Term 1850 of the Caldwell County Court the following order was made.

On motion, it is ordered that William Mercer be and he is hereby appointed a commissioner in the place of Johnson Laughlin, to allot to Mrs. M. A. J. Cartwright her dower in and to the estate of her late husband James A. Cartwright.

The foregoing are true copies
Attest W. E. Mitchusson D. C.
for J. C. Weller clk

Here follows the article of agreement between William OHara Executor of James A. Cartwright & Mrs M. A. J. Cartwright

38
Agreement between M. A. J. Cartwright & W^m OHara Exor of J. A. Cartwright
X
Article of agreement made and entered into this 2^nd day of October 1850 between William OHara Exr. of the estate of Jas A. Cartwright Decd of the one part and Mary A. J. Cartwright widow of J. A. Cartwright Decd of the County & state aforesaid of the other part, witnesseth, that whereas said Mary A. J. Cartwright has renounced the provisions ofthewill made for her in her late husbands will, and asked the County Court to appoint Commissioners to set apart to her one third of said estate, and whereas the said parties are desirous of amicably settling and arranging all matters connected with said estate do agree as follows, the said William agrees to give to the said Mary during her life time, all that part of the tract of land on which she lives lying on the North side of the road, with all the appurtenances belonging thereto, also fifteen acres lying on the south side of said road beginning at the corner of the fence on said road at the mouth of a cross lane running up said lane so far that a line running eastwardly paralel with said road to the cross fence above a tobacco barn will include the quantity— also the

39.
amount of money mentioned in said Cartwright's will as being due to the said Mary, which will appear by reference to said will — also the amount received by said Cartwright Decd after his will was made of money belonging to said Mary; also one hundred and fifty dollars the amount due for the hire of two of her negroes for the year 1849 — and he further agrees that whatever amount may be due the said Mary of the property reserved to the widow by law is to be made up to her, to be ascertained by Commissioners selected by the parties, she is also to have the privilege of using timber off of any part of the tract of land on which said Cartwright Decd lived for fire wood or rails for the use of land set apart to her by said W^m. It is further agreed that the amount due the said Mary as set forth above shall be ascertained as soon as practicable, and the said OHara shall give her his notes with good security bearing interest from this date, the first for one third, due the first day of Jay 1851, the other note for the balance due the first day of Jay 1852, he further agrees to pay all

40
the costs that may have accrued, also her lawyer for his attention to and counsel in this matter — In consideration of the said OHara performing the aforesaid stipulations, the said Mary A. J. Cartwright widow aforeseaid does forever relinquish to the said William all right title, claim or interest in and to the estate both personal and real of the said J. A. Cartwright Decd forever. It is agreed that all the household furniture brought here by Mrs Cartwright is exempted from this calculation the said OHara setting up no claim to said furniture.

It is agreed by the parties that if in the opinion of three counsel it is necessary to remit the foregoing in order more fully to explain, and fully set forth the contract — fully complying with the spirit of the foregoing contract they are to have the privilege. In Testimony whereof we have hereunto set our hands and affixed our seals the date first written.

W^m O'Hara {Seal}
M. A. J. Cartwright {Seal}

Teste
W^m Mercer
F. W. Urey

41
Here follows the deed of release from the widowMrs M. A. J. Wadlington to W^m OHara Executor of James A. Cartwright Decd —

Deed from M. A. J. Wadlington to Cartwright's & Exor
This Indenture made and entered into this 31st day of March 1851 between Mrs Mary A. J. Wadlington wife of Thomas B Wadlington who was formerly the wife of James A. Cartwright deceased of the one part and William OHara Executor of James A. Cartwright deceased of the other part, both of the County of Caldwell and state of Kentucky, witnesseth, that for and in consideration of said OHara having this day made to the said Mrs M. A. J. Wadlington a deed for certain land and premises therein contained and described, and the further consideration of one dollar in hand paid by the said OHara to the said Wadlington, the receipt of which is hereby acknowledged, she the said Wadlington has this day released and quit claim, and by these presents she does release and quit claim to all right of dower or any other interest she may have or has had in and to the estate of the said James A. Cartwright deceased, be the same real, personal or mixed. In testimony whereof the

42
said Mrs M. A. J. Wadlington has hereunto set her hand and affixed her seal, the day and year before mentioned.

Mary A. J. Wadlington {Seal}

The Commonwealth of Kentucky
Caldwell County Sct.

I James C. Weller clerk of the Caldwell County Court hereby certify that this deed of release from Mrs M. A. J. Wadlington to William OHara Executor of James A. Cartwright deceased was this day produced to me in my office, and acknowledged by the said Mrs Wadlington to be her act and deed, hand and seal for the purposes therein contained, and ordered to be recorded; whereupon I have truly recorded the same and this certificate in my office. Given under my hand this 12^th day of April 1851.

James C. Weller clk
A copy Att R. L McGoodwin D. C.
For James C. Weller clk

Here follows the deed from W^m OHara Exr of J. A. Cartwright to Mrs M. A. J. Wadlington.

Deed from W^m OHara
This Indenture made and entered into this 31st day of March 1851 between

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Exor of J. A. Cartwright to Mrs M. A. J. Wadlington
William OHara Executor of James A. Cartwright deceased an M. A. J. Wadlington whose former name was Cartwright, wife of said Cartwright deceased, both of the County of Caldwell and State of Kentucky that for and in consideration of an article of agreement made and entered by and between the parties on the 2^d day of October 1850 and the stipulations therein contained and the further consideration of the sum of one dollar in hand paid by the said M. A. J. Wadlington to the said OHara Executor as aforesaid, the receipt of which is hereby acknowledged, he the said OHara Executor as aforesaid, has this day bargained and sold and by these presents he doth bargain sell, confirm and convey unto the said Mrs Wadlington for and during the term of her natural life, all that portion of said J. A. Cartwright's land lying in said County and on which he resided at the time of his death, on the north side of the old state road as expressed in said Cartwright's will, as also the following tract, being part of the same tract, and bounded as follows, viz: beginning at the North end of the first cross fence, east of the drain

44
crossing the lane east of the house, running along said land N69 W76 poles to a stake, S18 W30 poles to a stake S69 E86 poles to a stake on said cross fence, along the same excluding the fence North 30 poles to the beginning, and it is also understood by and between the parties, that the said Mrs Wadlington is to have the use of any timber on said land on any part thereof for the use of her part of said farm for the purpose of making rails and other farming uses. To have and to hold the said bargained land and premises with all the appurtenances and privileges herein expressed, and also as expressed in said Cartwright's will to the said Mrs M. A. J. Wadlington now wife of Tho^s B. Wadlington for and during her natural life, and the said OHara Ex^r as aforesaid by virtue of the power in him vested hereby covenants and agrees to warrant and defend the before described land and premises free from the claim or claims of the heirs of said James A. Cartwright deceased, and from the claim or claims of all others claiming by, through or under them. In testimony whereof the said OHara Exr as aforesaid

45
hath hereto set his hand and affixes his seal the day and year first written.

W^m OHara {Seal}
Ex^r of Jas A. Cartwright

The Commonwealth of Kentucky
Caldwell County Sct

I James C. Weller clerk of the Caldwell County Court hereby certify that this deed of conveyance from W^m OHara Ex^r of James A. Cartwright Decd to Mrs M. A. J. Wadlington was this day produced to me in my office and acknowledged by said OHara Exr as afs^d to be his act and deed, hand and seal for the uses and purposes therein contained, and ordered to be recorded; whereupon I have truly recorded the same and this certificate in my office. Given under my hand this 31st day of March 1851.

James C. Weller clk
A copy Att W. E. Mitchusson D. C.

Evidence of A. J. Martin
A. J. Martin proved, That Cartwright staid all night at his house the night before he was killed, He said they had been cutting and destroying his timber unnecessarily, that W^m Wadlington & boy

46
X
Jourdan was cutting down his rail timber the day before and he went up there and told him he must quit, that there was enough wood timber on the ground William said he would not and Cartwright told him if he did not he would take a brush and wear him out or give him 1000 lashes, and made him leave. He said he could go and show me how they were cutting his timber, wanted him to go and buy his tobacco, said they did not need the timber and was cutting rail timber into fire wood and did it to harass him.

Evidence of William Wadlington Sr
X
W^m Wadlington Sr. says he is father to deft & grand-father to W^m J. Wadlington, I heard William J. Wadlington tell deft what A. J. Martin proved above, it was communicated in Princeton on the day before the killing. The gun produced by Conway was shown him, said it belonged to deft. He gave it to him. To this proof plff excepted and now excepts.

Evidence of A. J. Lamb
A. J. Lamb being sworn testifed as follows. About 1st October last before the killing,- deceased came to my new ground and had a conversation

47
X
with me & my brother. Patton B. Lamb and in said conversation he remarked that "he would be God dinged" if he did not die first, before Tom Wadlington shoud cut any more timber as he had been cutting & destroying & it should be stopped, ^decd^ said deft had so cut down & destroyed it was hard to clear. Deceased seemed to be mad & excited, said timber was on the land where the killing took place. I communicated the said conversation to Thomas B. Wadlington on the day before the killing, in Princeton, he came to me and I told him what Cartwright had said. Thomas B. Wadlington and his wife have been cutting & using off of said land, fire wood & timber for rails for 8 or 9 years. My land adjoins said land — On the evening of the killing I was at Cartwrights' house, and witness James Blalock told me in the presence of Buck Hunter that Tom Wadlington done all that was done and that after Cartwright was down & was about to get up. William Wadlington caught him by the hair of his head & pulled him down, dont remember his telling me

48
he could not tell who shot first.

Evidence of Patton B. Lamb
Patton B. Lamb being sworn testified as follows- November or December before the killing, Milton A. Cartwright the deceased came to a new ground where my brother A. J. Lamb and myself were working, and in his conversation with us he said that Tom Wadlington had been cutting & destroying his timber and it should be stopped — That he would be God damned if he did not die first before he should cut any more timber on his land — said land was the same on which the killing took place — I communicated the above conversation to T. B. Wadlington the evening before the killing, in Princeton was called upon to do so.

Evidence of Eli Nichols
Eli Nichols lives 200 yards from where the homicide occurred, heard guns firing and saw glimpse of persons at the place where fighting was going on, heard 4 or 5 guns, the first two in rapid succession. Prince came to the old road leading from Princeton to Hopkinsville between my house and the place where fighting occurred and called for me while the firing was still going on. I was in my yard grinding

49.
the axe when the fuss began, I came up after Prince called me twice and I met deft Thomas B. Wadlington & W^m Wadlington, Tho^s B. was wounded in thigh, W^m had 2 pistols, I met them in the edge of the old road 30 or 40 yds from the place where the fighting occurred I took deft to my house, W^m also went. Prince asked me in the morning in the presence of Blalock, Iif I had seen defendant pass with his gun that morning and said we had run W^m off yesterday & the hands of deft and he had not been back since that is that they had run them off on Monday before the killing on Tuesday, I gave the pistols to Conway. I got them off my desk after the parties came. It was not usual for deft to carry his gun. Cartwright had cut down timber which he was then having split up into rails.

Shoulwed witness Edmunds the tree of the killing where the body lay, and the stump where prisoner Prince & Blalock eat dinner. When he started to deft he went back for water at his request and on going with water met Prince coming down the road, Cartwright

50
had had before that the timber cut down that he was then splitting up.

Evidence of Dr J. H. Calvert
Dr James H. Calvert was then introduced and swore as follows- He is a physician, Was called to see defendant Wadlington after he was wounded- He was shot in the left thigh, the ball entering just above the knee, the ball ranging upwards, and coming out just about thirteen inches above, that is the wound was of about that length. That he examined but not carefully the gun shot wound in the body of Cartwright — The said wound was just above the left nipple and appeared to range towards the shoulder — That two balls penetrated the same place and passed through the lung — which in his opinion as a physician would have paralized him that he cound not have shot with any accuracy after receiving such a wound — That he examined the wound over the eye of the deceased, and did not think the skull was affected, and that the brain was certainly not exposed or injured — Put his finger in one wound and it went directly through thinks no man could have stood up

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long from the shot in the breast & he would have sunk immediately.

Evidence of Norflett Jones
Norflett Jones being sworn testified as follows — I was one of the Coroners' Jury which held inan inquest over the body of Milton A. Cartwright the day after his death, that he asked witness James Blalock who testified before the Coroners jury & at the time of his testifying what Milton A. Cartwright said when they i. e. Cartwright — Blalock & Prince left the place where they were eating to go to where defendant was working — And Blalock said that Cartwright remarked Come on boys I want to go & have a talk with Tom Wadlington about cutting my rail timber for I dont want him to have all the law on his side.

Evidence of S. C. Campbell
S. C. Campbell proved he was on the Coronaers jury. Blalock said Cartwright said to him and Prince he wanted them to go with him, he wanted to have a conversation with Wadlington about cutting his timber and did not want him to have all the law on his side.

Evidence of R. Hunter
Richard Hunter proved — Witness Prince was passing his house on the evening of the killing. I hailed him

52
and asked him, he told me Tom Wadlington killed Cartwright and when he shot him he took the axe to him and witness could not stand to see him killed so and ran up and struck at William with his fist but missed him.

Evidence of Gideon Scott
Gideon Scott was present at the conversation detailed by Hunter; Prince said Tom Wadlington shot Cartwright and took the axe to him and he could not stand to see it and ran up and struck at William & missed him. He did not say William did nothing but did not say what he did do. I did not understand him as stating all that took place — Hunter lives ¹/4 mile from O'Haras'.

The foregoing contains all the evidence in the cause.

Tho. C. Dabney Judge

Here follow the instructions given by the court to the jury on the trial of this cause, and also those that were refused —

Instruction No 1 given
The court instructs the jury that the law presumes the defendant innocent of the charge against him until his guilt is made to appear by

53.
the proof in the cause, and if they believe from the evidence and beyond a reasonable doubt that the defendant did wilfully and maliciously shoot, wound and kill Milton A. Cartwright with a gun or pistol in the County of Caldwell they should find him guilty as charged. If they entertain a reasonable doubt of the defendants being proven to be guilty of Murder as charged, and believe and find from the evidence beyond a reasonable doubt that the defendant did shoot and kill Cartwright with a gun or other deadly weapon in sudden heat and passion and without any previous malice express or implied or preconceived design and determination on his part to take the life of Cartwright, and not in the necessary defense of himself, son or servants then they should find him not guilty as charged but guilty of voluntary manslaughter and assess his punaishment to a confinement in the Penitentiary for a period of not less than two nor more than ten years. If on the other hand the jury believe from the evidence that at the time of the shooting and killing of Cartwright

54
that the defendant Tho. Wadlington did actually believe and had reasonable grounds for so believing that Cartwright was then about to proceed immediately to take the life, or to inflict great bodily harm upon the person of the defendant or that of his son or servants and would then do so unless prevented by such act of self defence as were then within the defendants power, then and in that event such shooting and killing under such circumstances would be excusable on the ground of self defense. and the jury should acquit him. If the jury believe from the evidence that the defendant had previously to the time of the shooting formed the design & determination to take the life of Cartwright, and that he did in pursuance to such previously formed design and intention go upon the ground armed for such purpose and did then in pursuance of such previously formed design and intention seek or provoke the difficulty, to carry out the same, then and in that event such killing cannot be excused on the ground of self defense or apparent necessity.

If the Jury entertain a reasonable doubt

55
of the defendants being proven to be guilty of either murder or voluntary manslaughter then they should acquit him. A reasonable doubt is one growing up out of all the testimony in the cause and not a mere conjecture or chimera existing in the jurors mind and not growing out of the testimony in the cause.

Given Tho. C Dabney
Decr 1860

Instruction No 2 given
That words however provoking will not reduce killing with a deadly weapon from Murder to Manslaughter.

Given Tho. C. Dabney

Instruction No 3 given
X See 10 refused
If the jury believe the prisoner had the right to go upon the land when Cartwright was killed to cut timber for rails and fire wood such right did not give the right to the exclusive possession of the land, nor did it give him a right to waste and destroy the timber thereon.

Given Tho. C. Dabney

No 4
If the [...] believe from the evidence beyond a reasonable doubt that the prisoner killed Milton Cartwright with a deadly weapon and Cartwright was not then

56
about to kill or inflict great bodily harm upon prisoner or his son or servants then the law implies malice from the weapon used and manner of the killing

Tho. C. Dabney

Instruction No 5 given
The court instructs the jury at the instance of defendant Thomas B. Wadlington, that if they believe from the evidence that Milton A. Cartwright the deceased had threatened to whip defts son or servants, if he or his hands cut timber on the land where the killing took place and defendant knew thereof that he had a right to carry arms openly or secretly or both, and then going to the ground or land aforesaid was no violation of law.

Given Tho. C. Dabney

Instruction No 1 refused
Although the jury may believe that Cartwright had no right to go upon the premises upon which he was slain, yet if they from the evidence beyond reasonable doubt that Wadlington killed him with a deadly weapon for interfering to prevent him from cutting the timber it is Murder, and the jury should so

57
find if they believe beyond reasonable doubt that it was only the purpose and intention of Cartwright to prevent said Wadlington from cutting said timber.

Refused Tho. C. Dabney

Instruction No 2 refused
That if the jury believe beyond reasonable doubt from the evidence that the prisoner did not have reasonable cause to believe or did not believe that Cartwright at the time of the shooting intended doing any thing more than to prevent the prisoner & his hands from cutting timber and the prisoner for that cause only shot & killed Cartwright, it is murder and the jury should so find, although they may believe Cartwright was a trespasser in so doing.

Refused Tho C. Dabney

No 3
Insulting language and threats made the day before by the deceased Cartwright to plantiffs' son would not mitigate the killing from murder to manslaughter

Refused Tho C. Dabney

No 4
The court further instruct the jury that if they believe from the evidence beyond

58
a reasonable doubt that the deceased was killed with dealdy weapons by the defendant Tho. B. Wadlington or his son W^m Wadlington and the deft was present aiding and abetting the same, then in absence of proof showing that such killing was done in necessary self defense of either of them or upon such provocation as would reduce the offence to manslaughter, the presumption under the law that the killing was done maliciously and in such case defendant would be guilty of Murder.

Refused Tho. C. Dabney

Instruction No 5 refused
If the jury believe from the evidence that Milton A. Cartwright on Monday, the day before the killing, with Prince & Blalock expelled by threats of violence William Wadlington the son of Tho^s Wadlington in his employ & a minor, together with his hands, & if the jury believe from the evidence the circumstances in the case that Cartwright armed himself between that time & tuesday the day of the killing with a Colts revolver or 5 barrel shooter & that with Prince & Blalock he on Tuesday returned to where said hands were at work the jury have a right to take into consider-

59
ation all the circumstances in the case to ascertain the motive & design of Cartwright, Prince & Blalock in approaching Wadlington & son on the day of the killing.

Tho. C. Dabney

Instruction No 6 refused
If the jury believe from the evidence in the cause that Cartwright armed himself and with Prince & Blalock on Tuesday came where Wadlington & son & hands were at work with the intention of expelling them at all hazards & to the death & if they believe from the evidence, that Tho^s Wadlington had knowledge of his said intent or that he had reasonable grounds to believe that such was his intent either from his conduct upon the ground or information communicated to him or both & that he was about to carry such intent into instant execution, or if said Wadlington had reasonable grounds to believe so then the said Tho^s Wadlington would have a right to slay him & such slaying would be in self defence & not Murder or manslaughter.

Refused
Tho. C. Dabney

60

Instruction No 7 refused
If the jury believe from the evidence that the first shot was fired in self defence & that all the wounds were inflicted on the body of the decd Cartwright after Cartwright had wounded Wadlington in the same rencounter, still that would not alter the nature of the transaction.

Refused Tho. C. Dabney

No 8
If Cartwright was on the ground with a colts revolver concealed in his pocket he was a violator of the law of the land.

Refused Tho. C. Dabney

No 9
If the jury believe from the evidence that Prince & Blalock or either or both of them went with Cartwright to aid and assist him to expel Wadlington & son, then they were co-conspirators & would be guilty of a misdemeanor though they did not actually engage in the conflict.

Refused Tho. C. Dabney

No 10
The court further instructs the jury that if they believe from the evidence that defendant was on the land where the killing occurred with his hands, and

61.
X
No 3 refused
P 55
that they were getting fire wood or rail timber under the contract of W^m O'Hara the Executor of James Cartwright Decd & Mrs. M. A. J. Wadlington, then they were rightfully on the land, and Milton A. Cartwright had no right to prevent or interfere with him (Wadlington) in so doing, and that such interference if any was a trespass upon the rights of defendant.

Refused Tho. C. Dabney

State of Kentucky
Caldwell County & Circuit

certificate
I E. P. Watkins clerk of the Caldwell Circuit Court do hereby certify that the foregoing sixty pages together with this, contain a full, true and complete transcript of the record and proceedings had in the cause mentioned in the caption, as the same now remains on file and of record in my office.

Given under my hand this 18^th day of December 1860.

E. P. Watkins clk
By J. C. Barnes D. C.

Index

63

Fee for record $15.00

Wadlington
v } Judgmt in felony (Caldwell)
Commonwealth

"An appeal refused"

Henry J. Stites
Judge Ct. Appeals

January 7^th 1860
Frankfort Ky