Page 1
Commonwealth
vs }
Duddleston

Pleas before the Honorable George W Kavanaugh Judge of the Mercer Circuit Court at the Courthouse in Harrodsburg on Saturday the 20^th day of April 1861 in a certain prosecution wherein The Commonwealth of Kentucky is Plaintiff and Ja^s Duddleston is Defendant

Be it remembered that heretofore vis On At a Circuit Court held for The Mercer Circuit at the Courthouse in Harrodsburg, on Monday the 11^th day of April 1860

True Bill filed found

The Grand Jurors herein again came into Court & upon Indictments against, John Henry, Tho Coleman, James Duddleston & Minor Morgan found true Bills & not haveing concluded their indica presentments again retered to their room

Which Indictment against TheComm James Duddleston is as follows viz "

over

(2^nd)
Indict
The Commonwealth of Kentucky
against } Mercer Circuit Court
Ja^s Duddleston

The Grand Jury of Mercer County in the name & by The Authority of The Commonwealth of Kentucky accuse James Duddleston of the crime of Malicious wounding committed as follows

The said James Duddleston on the 1^st day of January 1860 in the county aforesaid did wilfully & maliciously with intent to Kill, cut, thrust, stab & wound one Lewis C Gabbert with a Knife which was a deadly weapon so that the said Lewis C Gabbart died not thereby against the peace & dignity of The Commonwealth of Kentucky

Andy Barnett Attorney for The Comwth

Witness before the Jury
Summers Dean
Geo Divine, Hartford
Bottom Martin Sallee
L W Bottom Jr Lewis C
Gabbert L C Veach

(3^rd)
less in which is the Following
A True Bill

True Bill
Ja^s C. M^cAfee Foreman of The Grand Jury
and hereafter The following Bench Warrant

Cont

And again on another day of said Linn vis on Thursday the 12^th day of April 1860

This day came The Attorney for The Commonwealth & the Defendant was brought to the Bar in Custody of The Jailor & on his motion and for cause shewn to the Court on oath this proseution is continued until the next Term of this Court

And again on another day of said Term vis on Wednesday the 18^th day of April 1860

Bail allowed

The Court being advised it is ordered that the Defendant give bail herein for the Sum of One Thousand Dollars & upon failure to do which he is remanded to Jail in custody of the Jailor

And again on another day of said Term viz on Thursday the 19 day of April 1860

(4^th)
Bail given in $1000

This day came the attorney for The Commonwealth & the Defendant was brought to the Bar in custody of The Jailor & thereupon John Murphey & Ja^s Murphey being in Court they Jointly undertook that the Defendant Shall appear here on the 2^nd day of the next Term of this Court & answer the charge alledged against him in the Indictment & not depart without the leave of The Court & render himself amenable to the orders & process of the court in the investigation thereof and if convicted render himself in execution thereof of if he fail in either of these conditions, That they will pay The Commonwealth One Thousand Dollars and the affidavit on Oath of Jno & Ja^s Murphey as to the extent of their estate is filed herein

And again at another Term of s^d Court viz on Tuesday the 3^rd day of July 1860

Cont on afft

The parties appeared by their Attorneys & the Defendant Swore to & filed an affadavit herein by agreement of the parties this cause is continued until ^Thursday^ the fourth day of the present

(5^th)
Term and the Defendant stands on his former Recognisance [...]

And again on another day of S^d Term viz On Thursday the 5^th day of July 1860

Cont to 3^rd day next Term

The parties appeared by their attorneys & on the Motion of The Defendant & for cause shewn to the court this prosecution is continued until the next 3^rd day of the next Term of this Court And the Defendant stands on his Recognisance and on the motion of the parties Silas Shoemaker L. C Gabbert ^Geo Devine^ Turner W Bottom, George Divine, John Lawson Nathan Lawson, L C. Veatch, H Peter, Summers Dean witnesses for the Commonwealth & David Gabbert & Solomon Corn witnesses for the Commonwealth undertook that they would appear, on the 3^rd day of the next Term of this Court & give evidence herein & not depart without the leave of the court else they would each pay The Commonwealth one hundred Dollars.

And again at another Term of Said Court viz on Wednesday the 10^th day of October 1860

(6^th)
Cont &c
On the Plaintiffs motion It is ordered that this prosecution be continued until the next Term of this court and by agreement the Defendant stands on his former Recognisance and the witnesses for the Commonwealth likewise

And again at another Term of said Court viz On tuesday the 9^th day of April 1861

Cont to Thursday & rebond in $2000

On the motion of the Defendant it is ordered that this prosecution be continued set for trial on Thursday next & giveevidence thereupon W P. Perkins a witness for the Defendant undertook that he would appear here on Thursday next & give evidence for the Defendant and not depart without the leave of the Court else he would pay The Commonwealth of Kentucky One hundred Dollars and on motion of the Defendant & with leave of the court he with James Murphy his security undertook that the Deft should appear here on Thursday next & answer the charges alledged against him in the Indictment & not depart without the leave of the court & render himself amenable to the orders & process of the Court in the investigation

(7^th)
thereof and if convicted render himself in execution thereof, else they would pay the commonwealth Two Thousand Dollars

And again at ^on^ another day of s^d Term of Said Court Term

And again at on another Term day of S^d Term vis on Thursday the 11^th day of April 1861.

Cont to Thursday & witness recognized

By agreement of the parties by their attorneys It is ordered that this prosecution be continued until Tuesday next and the Recognisances of the Defendant and of the witnesses be respited until that day And David Gabbert undertook that he would appear on Tuesday next & give evidence in herein & not depart without the leave of the Court else he would pay The Commonwealth one hundred Dollars —

And again on the 9^th day of April 1861. (This order & the Bench warrant return on it should have preceded the order of April 1861. on Page 6)

The Defendant haveing been duly summoned called & failing to answer

(8^th)
Rec Forfieted
It is ordered that this recognisance be forfeited and on Palintiffs motion a Bench Warrant is awarded him herein

Which Bench Warrant is as follows viz

B Warrant

Mercer Circuit Court
The Commonwealth of Kentucky
To any Sheriff, Constable, Coroner, Jailer Marshall, or Policeman in this state

You are hereby commanded forthwith to arrest James Duddleson & bring him before the Mercer Circuit Court to answer an Indictment in that court against him for Felony or if the court be adjourned for the Term that you deliver him to the Jailor of Mercer County Given under my hand as Clerk of said Court this 9^th day of April 1861

Ben C Allin C M C C

Shffs ret

Executed April 9^th 1861 by arresting the within named Deft who is present in Court

W S M^cIntire D S for
S S M^cFatridge S M C

And again On another day of said Term vis Thursday the 16^th day of
(9^th)
April 1861

Plea NG & trial & Contd Tomorrow

The parties appeared & the Defendant filed his plea of not Guilty & thereupon James B Mann, Nelson Rue R C Patterson, Armstead Downing, Jere Clanuch, M M Williams, L D Brewer, John W Finnell & Lewis James were selected as Jurors herein & for want of time to make further selections the further proceedings herein are continued until Tomorrow morning 9 Oclock & those jurors selected were permitted to disperse & return again at that time and the Defendant stands on his former Recognisance

And again at on another day of S^d Term vis on Wednesday the 17^th April 1861

Jury & Verdict Guilty

The parties appeared by their attorneys and the nine Jurors Selected herein on yesterday again came into Court & threupon, William Trimble, Elijah H Burford, & B F Ransdell were selected & thereupon the Twelve were sworn well & truly to try the issue joined & a true verdict render & the evidence was concluded and the arguments of the attorneys for the parties

(10^th)
heard & the Jury returned to their room to consult on their verdict and again came into court & found the following verdict vis "We of the Jury find the within named Defendant James Duddleson Guilty of the offense charged in the within Indictment & in consequence thereof fix his punishment at two years Confinement in the penetentiary, M M Williams, One of the Jury, and thereupon the prisoner was remanded to Jail in custody of the Jailor

Sentence pronounced
And again on another day of said Term viz on Saturday the 20^th April 1861

This day came the Attorney for the Commonwealth, and the Defendant was brought into court and being informed of the nature of the Indictment, Plea & verdict, was asked if he had any legal cause to show why judgment should, not, be pronounced against him, and none being shewn;

It is adjudged that the Defendant be taken by the Sheriff of Mercer County to the State

(11)
Penetentiary & there confined at hard labour for the period of two years

Appeal prayed

To the overruling his motion for a new trial the Defendant excepts & tenders his bill of exceptions which is signed & Sealed by the Court and is made of record and the Defendant prays an appeal to the court of Appeals and thirty days is given him to present a Transcript of The Record to a Judge of The Court of Appeals until which time this Judgment is suspended

Bill Excepts

The Bill of exceptions filed herein & refered to in the foregoing order is as follows viz

Geo Divines evidence

Be it remembered that on the trial of this case The Commonwealth introduced George Devine who testified that he was acquainted with the Deft & also Lewis Gabbert

He was at Cornishville on the day of The Difficulty between s^d parties and that said difficulty took place at Cornishville near the house of Nathan Lawson, He does not know how long he witness or Gabbart had

12
been at Cornishville before s^d matter occured He states that Sam^l Divine & Parish Shoemaker were fighting both on the ground and one on the other, Nathan Lawson, Duddleston & witness were standing near the combatants the two latter on opposite sides that Lewis Gabbart came up & said let us part them as Gabbert, approached the parties, Duddleston stepped over the feet of the combatants & towards Gabbert & a scuffle ensued between them witness did not notice what became of them, Duddleston made some remarks as he passed over towards Gabbert but witness did not hear what he said, he heard them S^c^uffling but did not look away from the first named combatants to notice Gabbert & Duddleston, He heard Duddleston hollow out & say to Lawson whether he Lawson was going to see him done in that day way The fight between said Shoemaker & Devine commenced after dusk on [...] day of February 1860 It was growing dark at the time and

(13)
you could not See or recognise a person who was distant more than a fiew feet from you, Witness did not think there was a great crowd around where the fight was going on between Divine & Shoemaker Said Devine was the uncle of witness, Several of the persons present had been drinking, Sam^l Divine had been drinking that evening, Witness occasioally drank too much, but had not drank more than twice that evening Dureing the contest between Shoemaker & Devine Lawson held in his hand something that glistened witness Supposed it was a Pistol it looked bright & about the length of a Pistol He rather thinks it was a pistol He did not see anything of Gabbert after he commenced scuffling with Duddleston, till he was brought to the house wounded, he staid there a while & then started home and he & his Brother were on Same horse, they had progressed on their way home some six hundred yards & overtook Duddleston, who asked them to let

(14)
him ride, behind them, and they consented & he got on the fence & rode between behind them all three on one horse till some Seventy yards further They were going up a steep hill & the saddle girth broke & they all three slid off behind backwards & fell on the Deft who was undermost They left the Deft there on the road grunting He did not see Duddleston so distinctly as to see whether he was much hurt or not The fighting of Shoemaker & Devine took place in front of the Tavern house & in the Street, The house has a small yard in front 8 or 10 Steps inside & yard has a wall about three feet high in front next to the street where the fighiting too place

Lawson N

Nathan Lawson Knows Gabbert & Duddleston well He resided at Cornishville at the time of the difficulty & Kept a Tavern in S^d place He came home late in the evening & understood that Shoemaker & Devine had been publishingfightingJabbering when he came out of the house they were

(15^th)
first fighting Shoemaker had Divine down & beating him in the face witness was standing near the combatants & asked Divine if he should part them & Divine said no let them alone he thought he would get the best of the fight after a while, Gabbert then came up upon the right hand & spoke of parting them and Duddleson said no they should not be parted & passed over towards Gabbert, Witness said nothing more of them nor heard anything said by Duddleston till he had parted the s^d Devine & Shoemaker They fought for some time after Duddleson passed over to Gabbert Witness after seperateing the said combatants went to where Gabbert & Duddleston were just as he came near them, Gabbert seized hold of Duddleston, & threw him down on the ground with some violence & jumpt on him & struck him three blows in the face He then remarked to Gabbert not to strike him any more, that that was enough & Gabbert replied that the damned

16
Rascall had cut him all to pieces, Devine & Shoemaker fought a long fight before, witness went to Gabbert & Duddleston & witness never noticed them till he had seperated the former combatants, Lewis Gabbert & Duddleston were friendly before that occurrance so far as witness Knew He further stated that the Defendant was much intoxicated & all had been drinking and a good many were around while the fightings were going on

Divine & Shoemaker fought a long fight before he went to Gabbert & Duddleston & parted the latter

John Lawson
Master John Lawson Testified that he lives in Cornishville Ky & is the son of Nathan Lawson

On the day of the Difficulty he first saw Gabbert a little after dinnertime in the Grocery, Saw Devine about sun down, He saw his brother with Knife makeing a bow on that evening Duddleston asked his Brother for it & he gave it to him & Duddleston put

(17)
it in his pocket with the blade open, It was not very sharppointed when Duddleston took the Knife from witness brother it was about one hour before sunset

He saw Gabbert that evening in the room talking to Lind his witnesses half Sister and they were shut up in the long room, after night he witness went out in yard whilst Devine & Shoemaker were fighting & heard a noise He went up and Saw Gabbert on Duddleston, Saw Gabbert Strike Duddleston two or three hard blows with his fist in his face, Duddleston was cutting him Gabbert with Knife whilst witness was present & he heard Gabbert say that Duddleston had cut him Witness then walked back into the house thinks Lud Veatch & Summers Dean were present near S^d parties Witness stated that Duddleson & pritty near all of persons about had been drinking freely in the evening & previous to the stabbing

The witness saw Nathan Lawson

18
near the other combatants Divine & Shoemaker as he returned to the house

Ja^s Yeasts
Ja^s Yeasts stated that he came home after night & saw Gabbert after he was cut & had been taken into the house

L C Gabbert
Lewis Gabbert say He went to Cornishville about 3 Ock to attend a lodge of Masons He eat his supper at Lawsons Tavern before sundown and came over the bridge to this side did some business and returned just as he got through the bridge returning and without going into Lawsons house he saw a fight was going on in the street and some persons standing round he went up and said "Let us part these men" and stooped to take hold of the one on Top Duddleson rushed up saying they should not be parted and cought hold of Witness Witness turned and slung him off he fell away from Witness how far witness cannot say for he did not look but turned to the men who were fighting Duddleson came back again

19^th
and cought hold of Witness and pushed him away and ^a^ scuffle ensued Witness threw Duddleson down and got astride of him saying "Now Jim you have to be still or let us go and part those men" and then Duddleson Defendant began — Scuffle and strike up and soon witness discovered that he was cut by the blood which run down in his left hand and then he struck Defendant 2 or 3 hard blows in the face, did not strike him until he felt and saw the blood on his hand and was holding Defendant that as he supposed the others would part the men who were fighting & once used no more violence than was necessary for that purpose & no intention to hurt him until after he found h out he was cut, these clothes shewn were his, he was taken into the house & undressed about 2 weeks before he could be removed, he was cut clear through the left arm two or three times & cut to the hollow twice in the side cross examed States he did not go to the Masonic Lodge that night was not able

20
to go, there was no spite or ill feeling or de previous difficulty between them, was not in the back room of Lawsons House about the time the fight of Shoemaker & Divine begun, had not been in the house after he eat his Supper until carried in, was not persuaded not to go out, did not see Peyton Perkins & does not Know him, did not see Veatch, Young John or Nathan Lawson while he was on Duddleson did not strike Deft until he was cut handled Deft easily when he took hold of witness, threw him off easily & held him down easily, did not drink himself or treat any one in the grocery dureing the evening, did not Know that any one approached him while on Deft, does not Know who took him off or into the house, does not Know that it was Lawson; reexamined, Witness stated that his arm is yet some fractured On Cross examination Gabbert said he handled Duddleson easily that when Duddleson caught hold of him, he threw him off easily, threw him off some twenty feet rather down the Hill & he fell

21

E L Veatch
Ludwell Veatch Stated he had not seen Gabbert & Duddleston that day previously to the fight He was going across the bridge at Cornishville that night & heard a fuss he approached the place where he heard the noise & found Gabbert on Duddleston whilst witness was looking at them the former struck the latter some two or three blows with his fist in his face, witness saw no person at that time near the combatants, he after looking at them passed on

It was quite dark Duddleston was lying with his head down towards the River

Dr Peter
Doctor Hartford Peter Testified that he was called to see Lewis Gabbert some half hour after he was wounded Had some 12 or 13 wounds all on the left arm & side two of them penetrated the hollow opposite the Lungs He attended on him some two weeks

He is a Physician resided at Cornishville, he Gabbert was cut through the arm two or three times

(22)
Coat. ex^d
The Commonwealth Exhibited the coat & waistcoat of Gabbert wore on S^d occasion with many cuts on the back part of upper part of the left arm & two on the left side Said Cloaths were identified by witness Devine as being same S^d Gabbert had on the day of the stabbing

E Lowe
The Commonwealth haveing closed her Testimony The Defendant introduced Elisha Lowe who stated that he was Jailor of Mercer County at the time Gabbert was stabbed That the Defendant Duddleston was brought on & committed to Jail several days thereafter That he Duddleston at the time said Witness saw him had some 5 or 6 wounds, had and cuts & bruises & pretty sever ones on his face eyes & head That he had a Knife whitling with it & he took it from him Deft The same Knife has been exhibited in court & was identified by the witness It was about 3 Inches long in the blade

Perkins

Perkins was then sworn & stated that he was at Cornishville

(23)
Kentucky on the day of difficulty saw Gabbert in Grocery on that day & he Gabbert came in & after a while called up several persons & treated & drank himself He afterwards was in the front room of Lawsons Tavern house near where the fight between Divine & Shoemaker was takeing place & he heard some womens voices in the back room urgeing some one not to go out where the fight was going on, immediately thereafter the back door of the room witness was in opened & the door slammed & Lewis Gabbert passed through the room & went out at the front door near which the said combatants were again engaged Witness had taken two drinks that day & took some others after the difficulty, between Duddleston & Gabbert witness stayed all night at Lawsons Tavern, he Knew Gabbert when he saw him, though not acquainted with him, That there was much confusion, a sort of general fight & rocks were thrown near the door He found near the door of S^d Tavern

24
a white handled Knife with a blade of three inches in length, it was lying on the ground at the time he found it with the blade open It was found by witness soon after the fight as witness went to bar to get a drink of whiskey

Defendant closed his Testimony here

Shoemaker reExamined
The Commonwealth then reexamined Shoemaker who stated that as he went into one door they were carrying Gabbert after the wounding into the house through the other door, he saw the witness Perkins setting on a chair with his head bent down a sleep, he tried to wake him, but did not succeed, his wife, told him to let said Perkins alone & he did so

N Lawson
Nathan Lawson was recalled & stated that after Gabbert was carried into the house wounded, he went into another room & found the witness Perkins a sleep in a chair later in the night he saw him drunk asleep on the floor & he remained there till about day light

(25)

This being all the evidence in the case, and the same haveing been against argued by Counsel for Deft & commonwealth attorney for Plff

The court then at the instance of Plaintiffs attorney gave these following instructions to (here copy) the first of)

Plffs instructions
At the instance of Plffs attorney The Court instructs the Jury that if they believe from the evidence to the exclusion of all rational doubt that Divine & Shoemaker were engaged in an affray and Lewis Gabbert interfered to suppress the affray & deft Knowing it to be the intention of Gabbert to suppress the affray interfered to suppressits prevent its suppressine & assaulted Gabbert If they further believe that Gabbert was holding Defendant that others might suppress the affray & useing no more force than was necessary for that purpose and that under these circumstances the Defendant cut, thrust & stabbed Gabbert intending to Kill him with a Knife

(26)
aKnife, which was a deadly weapon then such stabbing was malicious & the law is for the Plaintiff and so the jury ought to find & fix his punishment at not less than one nor more than five years imprisonment in the penetentiary

If Gabbert interfered to Keep the peace ^& Deft Knew that Gabbert interposed to keep the peace^ & interfered himself to prevent the suppression of an affray and then assaulted Gabbert & sought & produced an affray with Gabbert & in that affray stabbed Gabbert, Then in that event the Deft cannot avail himself of the plea of self defence & apparent necessity and the law is for the Plaintiffs

Defts Instructions
To which the first of which the Defendant excepted then & now excepts — At the instance of Deft the Court instructed as follows (Here Copy four in number)

The Defentant asks the Court to instruct the Jury

No 1
1^s That they cannot find the Defendant guilty of the malicious stabbing charged in the Indictment unless they believe from the evidence

(27^th)
that he stabbed & wounded Gabbert with malice aforethought expressed or implied And this proposition they must believe to the exclusion of a reasonable doubt or acquit the Prisoner

No 2
2 If the Jury believe from the evidence that the Deft did stab & wound Gabbert, but that at the time he did it he had reasonable grounds to believe & did actually believe that he was in danger of the loss of life or of Suffering serious bodily harm there he had a right to defend himself against such danger & if he used no more force than un under all the facts & circumstances proven in the case, he actually believed was necessary to protect his person from such damages danger, then he is not guilty & the jury must so find, unless the Jury believe the danger or supposed danger of Duddleston was produced by an under the circumstances mentioned in the instructions on the part of the commonwealth

3
3 That unless the Jury believe from the evidence that the Deft

(28^th)
is proven Guilty beyond a resonable doubt they must acquit him —

6^h
6^th The Jury cannot find the Defendant guilty of the charge of Malicious stabbing unless they believe from the evidence beyond a reasonable doubt that he intended to Kill Gabbert at the time he stabbed —

7
7^th If the Deft intented only to cut Gabbert loose from him & did not intend to Kill him then the Jury cannot find him guilty of The Malicious stabbing as charged in the Indictment —

The Modification as to Defendants Second instruction was given by the Court & not asked by the Defendants These were all the instructions given, These were all

The Jury then haveing retired & counselled returned the following verdict, (here copy same) (the same copied on Page 9 of this record)

The Defendant moved for a new trial upon grounds following (here copy)

29^th

The Defendant moved the Court for a new trial on the following grounds vis

Grounds N T N^o 1
1^st The Court erred in permitting the witness Gabbert to give his own opinion as to whether he used more force than was necessary to prevent Duddleston from interfereing to prevent Devine & Shoemaker from being seperated

N^o 2
2^nd The Court erred in giveing Instructions N^o 1 as asked for by Plaintiff

N^o 3
3^rd The Court erred in permitting The attorney for The Commonwealth ^in his concluding argument^ to appeal to the Jury in the name of The principles & order of Masonry to convict the Deft

N^o 4
4^th The Court erred in permitting the attorney for the Commonwealth in the closeing argument to represent the Condition of the Jail of the County as insufficient to hold persons, & thereby induce them not to find him guilty of the lesser offense included in the Indictment —

N^o 5
5^th The Court erred in permitting

30
The attorney for The Commonwealth to argue to the Jury that if they found the Deft guilty of The lesser offense that the county would have to pay the expense of Keeping him in Jail

N^o 6
6^th The verdict of The Jury was not warranted by The Law & the evidence & was contrary to both

The Court overruled the motion & gave Judgment against Defendant (Here Copy) (Same Copied on page 10 of this Record)

To all of which the Deft exceptsted & now excepts & prays an appeal to The Court of Appeals for the errors afs^d in the ruleing of the court & prays that this his Bill of exceptions be Signed Sealed &c as the manner is which accordingly is done

Geo W Kavanaugh

Fee $5.50^c

31

State of Kentucky
Mercr Circuit Court

I Bin C Allen Clerk of the Mercer Circuit Court Certify that the foregoing (30 pages) contain a full true & complete Transcript of the Record & proceedings in the suit therein mentioned

Given under my hand this 24^th April 1861

Ben C Allen
Fee [...]$

Index

(32)

Att Ben C Allin clk

Fee $5,50