<title type="main">Commonwealth of Kentucky v. Thomas B. Lawton, Transcript

1 McLean Circuit Court

Pleas before Hon James StuartJudge of the McLean Circuit Court at the Court house in CalhounMarch 26th 1864

Commonwealth of Ky Plff vs } Indictment for Felony Thomas B Lawton & others whose names to the Grand Jury are unknown Deft

The Grand Jury of McLean County in the name and by the Authority of the Commonwealth of Kentucky, accuse Thomas Lawton & others whose names to the Grand Jury are unknown, of the Crime of Robbery as follows viz; The said Thomas Lawton and others whose names to the Grand Jury are unknown, on the day of October 1862 and in the County afsd feloniously took & carriedaway. a horse the property of Gray R. Stringer& in his presince & against his will by putting him in fear of some immediate Injury to his person against the peace and dignity of the Com-

2 monwealth of Kentucky --

2nd The Grand Jurors afsd on their Oaths further Say and accuse; & in the name and by the authority of the Commonwealth of Kentucky Thomas Lawton. & others towho whose names to the Grand Jury are unknown, of the offense of unlawfully, but not with a felonious intention taking & carrying theaway the personal property of another Committed as follows viz: -- The Said Thomas Lawton & others whose names to the Grand Jury are unknown on the day of October 1862. in the County afsd unlawfully but not with a felonious intention took and Carried away a horse the p not their property any one of them but the personal property of Gray R Stringer, ^& against the sd Stringer will & out of his possession &^ of the Value of Seventy five dollars & did then & there convert the same to their own use & against the peace & Dignity of the Commonwealth of Kentucky

Information by Gray R Stringer

Hardin g Stringer

Wm E Clark.

Endorsed

A. true bill, J. M Hancockforeman

3 of the Grand Jury

Returned by the Grand Jury in open Court and filed 16th March 1863.

Louis L Moore clk

Order at March term 1864 March 17th 1864 The parties came by their Counsel and the atty for the Comwth announced that the Commonwealth was ready for trial, and the defendant moved the Court for a continuance and filed his affidavit herein. and the Court being sufficiently advised overruled said motion and it leave is ordered by the court that further trialtime given the defendant until next monday to prepare for trial it is therefore ordered that this prosecution be set for the seventh day of this term and the defendant is held on his former recognisance for his appearance on that day

Grounds for Continuance Filed 21st March 1864 McLean Circuit Court

The defendant says that he is not ready foryet, for the trial of this Cause, because he says that Since the Calling of this Cause at this term he has used every

4 effort in his possession to procure the attendance of his witnesses he went to Webster County with attachments against Owen & Stubblefield but was only enabled to have the attachment served on Stubblefield who is in attendance he did not have time to go to Hopkins County to have the attachments served. on Chas Robertson for whom he had an attachment nor did he send it to Hopkins County because the said Robertson as he was infomed was temporarily absent. at Evansville Ia. He verily believes the attenance of all his witnesses at the next term & will use every effort in his power to do so. if a continuance is granted. which he asks not for delay but that Justice may be done

T B Lawton

Sworn to before me this 21. March 1864

Louis L Moore clk

And thereupon the folowing order was made viz:

Order at March term 1864

7th day

This day came as well the atty for the Comth as the deft in proper person and by his Counsel & the deft tendered an

5 additional affidavit for a continuance of this Cause and moved the Court fromfor a Continuance which was peremtorily refused, overruled by the Court and to which ruling of the Court he deft excepts, and thereupon the defendant demurred to the Indictment, and upon said demurrer being offered by the deft the Atty for the Comwth dismissed the 2nd Court in the indictment and the Same was ordered by the Court Dismissed, and after the Said Second Count in the Indictment was dismissed as aforesaid by the atty for the Comwth, the demurrer to said indictment was overruled, And the defendant upon the record plead not guilty of the charge contained in said indictment and also a special plea which was ordered to be filed, and the atty for the Comth tendered a demurrer to said plea which is ordered to be filed and the matters of Law arising upon said demurrer being understood, it is ordered that the same be sustained and there being not time to conclude the trial of this Cause to day the same is

6 laid over until tomorrow,

Demurrer to Indict The defendt Demurrs to the Indictment Null &,

Plea Filed March 21st 1864 The defendt Lawton for plea to the Indictment says that at the time they have mentioned in the indictment was taken he was a regular Soldier & in the service of the army of the So Called Confederate States of America and took the said horse in the obedience to the command of his Superior officer, who was in command of a large force who was in Comm in McLean County. He says that the taking was not felonious, was not from motives of gain or advantageous to himself but was because of the Command and necessity put upon him by his sd superior officers, He says the taking of sd horse was justified by the laws of war, which at the time superceded and rendered in operative the Civil law of McLean County, and his said taking was no violation of such superceded and inoperative civil law. that by his sd taking andof sd horse and by reason of his

7. being a Confederate Soldier as afsd he became and was amenable to the Military authorities of the ^Federal^ Government, and so being amenable he afterwards surrendered himself in Custody of the said Military authorities who had power and right to inflict him such punishment as he may have deserved by reason of the Premises

They the said Military Authorities subsequently discharged, released and acquitted him of sd offence from Custody upon his taking the oath of allegiance to the Federal Government. and executing bond with with good security conditioned as required by said Military authorities when he did. He was released by Major T G Brown, Commanding the Military post at Rumsey in McLean County, on the 26 day of January 1863, his said release being in Writing and signed by said Major and he files it herewith as part hereof. he pleads the foregoing facts in abatement of the indictment herein asking to go hense without delay

8 He further says, that at the time sd horse was taken Genl J T Boyle Commanding in Kentucky the said Boyle being Chief Federal Officer of said State by Authority vested in him, as such Commander, proclaimed and declared the state of Kentucky under Marital Law. and the sd state by reason thereof, was under Martial law & that sd State by reason thereof in obedience thereto deft surrendered himself as a prisoner of war and was taken before the said Major Brown & upon the terms & conditions required by him deft was released, for all former offences committed by him as a soldier in the service of the so called Confederate States of America

Wall p j

Major Browns Release HeadQuarters U S Forces

Jany 20, 1863.Ramsey Ky

This is to certify that Thomas B Lawton, has this day appeared before me, and taken the Oath of Allegiance to the United States, and has given bond for faithful obedience of same and is hereby released,

By order of Maj T G Brown Commanding at Ramsey Ky

9 Order March 22nd 1864 This Cause Came on for trial and the defendant waived a formal arraignment and plead not guilty Whereupon Came the following Jury towit L B Thomas, Ben Franklin, W, H, Townsend, Giles Green, James Hines, Jno E Robertson, J F McQuinn H B Nall, J F Thomas, Jacob Snider A B Vaughn, and J F Stinnett who being duly sworn to well and truly try the issue in the above cause according to the law and testimony, The testimony having been heard, and the argument of Counsel began the Court adjourned until tomorrow Morning and the Jury were allowed to disperse, and the prisoner remanded to the Custody of the Sheriff to be returned at 9 -- Oclock tomorrow Morning,

186Order March 25th 1864 This day came as well the atty for the Comwth and Deft in proper person and the Jury herein empanneled on the Eighth day; towit L B Thomas Ben Franklin W, H, Townsend, Giles Green James Hines John E Robertson J, F McQuinn H, B. Nall J F Thomas Jacob Snider

10 A B Vaughan and J F Stinnett and returned a verdict at half past nine o clock at night the Court being about to adjourn within two days, as follows Viz. "We the Jury find Thomas Lawton the defendant guilty as charged in the within indictment and fix his punishment at three years imprisonment in the penetentiary of this State; John E Robertson foreman" and after the verdict the Jury presented a petition to his excellency the Governor of this Commonwealth which is ordered to be entered of record and reads as follows,

'Petition to Governr, for Pardon" "We the undersigned are the Jury that has just now returned a verdict against Thomas Lawton under an indictment against him in the McLean Circuit Court now we respectfully but most Earnestly importune his Excellency to pardon the deft. we will say we would not have found this verdict except from the strictest conscientious convictions. We hope the peculiar circumstances

11 of his case will be made known to your excellency by others

John E Robertson Jacob Snider Benjamin H. Franklin A. B. Vaughan L B Thomas J, F McQuinn John F. Thomas James Hines James F Stinnett H, B Nall J. G Green W. H. Townsend

order March 26th 1864 The defendant came by his and filed grounds for a new trial and the Court fixed the hour of two o clock this Evening for the hearing

The defendant being set to the bar and on due consideration had of the motion herein for a new trial. It is adjudged that the same be overruled to which the defendant excepts and the court

12 being about to adjourn for the term,, within two days within two days, and six hours having since the verdict herein was returned the court proceeded to recite to the defendant the finding of the indictment herein, and the several steps taken therein the empannelling of the Jury and the Verdict and inquired of the defendant whether he had any thing further to urge or say why Judgment of the court should not be rendered, and the defendant having no other or further thing to say, It is adjudged that the said defendant be now removed to the Jail of this County and there safely Kept until he shall be demanded by the Sheriff of this County who shall convey him to the Jail and Penetentiary house of this Commonwealth where he shall be confined at hard labor for the term and time of three years from this dayte, and to his Judgment the deft excepts, and

13 thereupon the Deft prayed an appeal to the Court of appeals and twenty days from this day are given within which to lay a transcript of the record herein before a Judge of the Court of Appeals to obtain his appeal

order Concerning Instructions After the hearing of the evidence in this prosecution the Deft moved the Court to instruct the Jury as in papers marked A, B, C, D, E, & F, and marked refused, and the Court refused the said instructions to which the defendant excepts, and also instructed the Jury as contained in the papers marked 1, 2, 3, 4 & 5, to which the defendant excepts.

Refused instructions (A) Refused

The Court instructs the Jury that if they believe from the evidence that deft was compelled, by an armed force to take from the possession of G R Stringer the horse charged in the indictment and that said deft acting under

14 fear of danger of his life or great or great bodily harm and against his own consent, took said horse without the felonious intent to commit the crime of robbery they ought to find him not guilty

Refused Instructions (B) Refused

The Court instructs the Jury that unless they believe from the evidence that the defendant took the horse with the intent to steal him and took him by putting the alleged Stowner Stringer in fear they mightought to find the defet not guilty

Refused

That the said horse must have been taken by actual force and violence from the alleged owner stringer, or he must have had reasonable grounds, to believe that his person or property was in immediate danger of injury: which belief must have been superinduced by the conduct or threats of the defendant else there was no robbery and they ought to find the deft not guilty

15 Refused Instructions (C) Refused

The Court further instructs the jury that if they have a reasonable doubt of the horse being proven to be the property of Grey R Stringer at the time of the alleged taking the deft is entitled to acquittal

Refused Instructions (ED) Refused

That the putting in fear of remote or contingent injury is not such putting in fear as is required by law, in making out the offince of Robbery

(E) Refused

That the Court further instructs the jury that although they may believe from the evidence that the taking was unlawful and against the will and consent of said Stringer, yet, unless they further believe from the evidence that the said taking was felonious & forcible ^or by^ and the putting the said Stringer in fear they ought to find the defendant not Guilty

F, Refused

The Court further instructs the Jury that although they

16 may believe ^from^ the evidence that the taking was wrongful and might subject the deft to a civil liability to the owner, yet unless they shall further believe from the evidence that the said deft took the said horse from an evil mind, and intended to commit crime that he is not amenable to the criminal law

It is of the essence of crime that there must have been an evil heart

Given Instructions No 1, Given

The Court instructs the jury that if they have a reasonable doubt of the defendant being proven to be guilty of the offence he is entitled to acquittal

No 2 Given

The court further instructs the Jury that unless they believe from the evidence that the Deft took said horse from the possession or presence of the alledged owner Stringer feloniously & with the intent to rob they might find the deft not guilty

No 3 RefusedGiven

The Court instructs the Jury that if they believe from the evidence that the deft took from the possession

17 and Control of Stringer the horse mentioned in the indictment against the will of said Stringer and by putting him in fear. and took the said horse away with a felonious intent that they ought to find the Deft guilty and for his punishment at confinement in the penetentiary a period not under three years and not over ten years

No 4 Given

That if the title in the horse was in Dame, if Stringer at the time he was taken had him in possession keeping him for said Dame the indictment properly charges the Horse as Stringers

No 5 Given

If the Deft took the Horse from Stringer against his will and on his presence intending to convert him to his own use or the use of others such taking was felonious.

Motion for New Trial The deft states as a ground for a new trial that the verdict of the Jury is against the instructions

18 of the Court, and against the Law and Evidence adduced in the Cause and that the defendent has discovered, testimony since the trial which testimony if it ^had^ come before the Jury they would not have agreed to a verdict of guilty wherefore he prays your honor that he may have a new trial and thereby be enabled to bring all of the facts before the Court and Jury that Justice may be done to the Commonwealth and this defendant he makes this application that thehe may have sheer Justice and for no other purpose

Grounds for new Trial The defendant moves the Court for a new trial in this Cause and for cause

Says that the verdict was not rendered by a fair expression of opinion by the Jurors

2 that the defendant has Discovered, important evidence in his favor since the rendition of the verdict,

3 that the Jury recieved evidence out of Court,

4 misconduct of the Jurors to

19 such an extent that the defendant has not had a fair trial

1st as to instructions of Court 2 " " to the evidence failing to prove intent 3 " " to influence brought about by public opinion 4 " " to the argument of Counsel 5 " " to the newly discovered testimony the discretionary power of the Court as the importance of the grounds.

note --

Deft. Offered to Read as Evidence on the motion for new trial the following affidavit & statement ofoneof the Jurors-to wit

John G Barnes States that he was present when Andrew Rhay was sworn into the Confederate service as a soldier and knows that he was regularly Enlisted and sworn as such prior to the findings of this Indictment at least as early as October 1861. John G Barnes

sworn to before me by John G Barnes March 26' 1864

D Little P, J, M, C, C

I Louis L Moore clerk of the McLean Circuit Court, do certify that the foregoing 19 pages contain all complete transcript of the Case of the Commonwealth of Ky v Thos B Lawton Indicted for Robbery

Given under my hand the 289th day of March 1864

Louis L Moore cC, M, C, C

MLean Cir Ct vs Thos B. Lawton Felony

Pardon granted April 2d 1864

Tho E Bramlette Govr of Ky