<title type="main">Commonwealth of Kentucky v. John Welch, Transcript

State of Kentucky

Pleas before the Honorable P B MuirSole Judge of the Jefferson Circuit Court held at the Court House in the City Louisvilleon the 10th day of June 1864

The Commonwealth Plff versus } Indict felony John WelchDeft

Be it remembered that heretofore To wit; 7 day of May 1864, the Grand Jurors impanneled and sworn to enquire in and for the body of the County of Jefferson and State of Kentucky, presented and returned into Court an indictment for murder, a true bill against John Welch, which is in substance as follows

Indictment The Commonwealth of Kentucky against John Welch Jefferson Circuit Court May Term A D 1864

The Grand Jurors of the County of Jefferson in the name and by the authority of the Commonwealth of Kentucky accuse John Welch of the crime of murder committed in manner and form as follows To wit

2 The said John Welch in the said County of Jefferson on the day of March A D 1864, did wilfully, wickedly, feloniously and of his malice aforethought kill and murder Ellen Gaven by shooting her in and upon her body and breast, her right breast with a gun and pistol, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the Commonwealth of Kentucky

J R Dupuy Commonwealth Atty

Which was endorsed by the Clerk of said Court 1864 May 7 Recd from Grand Jury and filed

And at a Court continued and held as aforesaid on the 13 May 1864

Verdict John Welch-- who has been indicted by a Grand Jury of this CountCircuit for felony and who is now confined in the jail of this Circuit on said charge was this day led to the bar of this Court by and in the custody of the jailor attending the same and being arraigned upon said indictment plead not guilty thereto and for his trial put himself upon the country and the Attorney for the Commonwealth likewise And the defendant moved the

3 Court upon affidavit filed to grant him a continuance herein and said motion being heard was submitted and the Court being advised It is ordered that said motion be overruled to which ruling of the Court the defendant excepts -- Wherefore to try the issue joined let a jury come and thereupon came a jury Towit;L Richardson, Pres Rocors, A L Harding, Henry Dennis, W D Smith, J Parkhill, F H Hogan, W F Lane, A A Quarrier, George Fonterman, Robert Tompkins and W H Dulaneywho being duly elected, tried and sworn well and truly to try and true deliverance make between the Commonwealth and the accused upon oath returned into Court the following verdict, We of the Jury find the accused John Welch guilty as charged in the within indictment

A A Quarrier foreman

And thereupon the prisoner was remanded and taken to jail accordingly

And at a Court continued and held as aforesaid on the 14 May 1864

Came the defendant by Attorney and moved the Court for a new trial on grounds in writing filed

4 Grounds for New trial The defendant John Welsh moves for a new trial in this cause because the Court misinstructed the jury

Bijurs for Welsh --

And at a Court continued and held as aforesaid on the 16 May 1864

Came the parties by Attorneys and the motion for a new trial being heard and the Court being advised It is ordered said motion be overruled, to which ruling of the Court the defendant excepts

And at a Court continued and held as aforesaid on the 30 May 1864

Sentence The defendant was this day brought into Court and being informed of the nature of the indictment, plea and verdict was asked if he had any legal cause to show why judgment should not now be pronounced against him; and none being shown, It is adjudged and ordered by the Court, that the said John Welsh be taken to the jail of Jefferson County Kentucky, and there safely kept until Friday the 22 day of July 1864, on which day between sunrise and sunset, near the corner of Eighteenth and Broadway Streets in Louisville Kentucky, the Sheriff of Jefferson County Kentucky, shall hang him

5 by the neck until he is dead; to which defendant by his Attorney excepts and prays an appeal to the Honorable the Court of Appealsand time until the 6 June next is given him to file his bill of exceptions herein

And at a Court continued and held as aforesaid on the 2 June 1864

Order filing Bill Ex Came the defendant by Attorney and tendered to the Court his bill of exceptions herein, which being signed and sealed by the Court is ordered to be made part of the record and proceedings herein

Bill of Ex Be it remembered that on the trial of this cause, the Commonwealth introduced as a witness James C Gillwho testified that he is and was in March last the coroner of Jefferson County, that he held an inquest upon the body of Ellen Gaven, in March last; that he found her breast pierced by a bullet, of which wound she had died.

Chas Hale And also introduced Charles Hale, who testified that in March last he was engaged in the building of a house in McAllisters alley in the City of Louisville and was occupied on the roof of said building when he heard noise and quarrelling in the

6 said alley and when he was about looking down to see the fuss, he heard some voice call out don't shoot, and simultaneously he heard the discharge of a pistol, on descending from the roof into the alley, he saw Ellen Gaven lying on the ground, her breast pierced by bullet of which wound she very soon died Witness saw the accused, he held a small pistol in his hand and fired one load of it, all that was left, into the ground and then said you may arrest me now, He was walking away slowly from the scene, all this occured in the morning between 9 and 10 O'Clock. Hale stated that he was at work 50 or 75 yards from accused & deceased when he first saw them -- that at this time the deceased had a brick bat in her hand and accused had a pistol pointed at her -- deceased seemed to be ordering accused to go away and at the time accused shot her, her right hand was raised, in which she held a brick bat. Witness could'nt repeat the language used by deceased, for he did not hear it distinctly -- seeing the difficulty he witness started to run in that direction to prevent it and as he ran he said, "do'n't shoot," and as he pronounced the words "do'n't shoot," accused shot the deceased,

7 accused could not have heard the words, "do'n't shoot," used by witness before accused shot -- the words "do'n't shoot," and the firing of accuseds pistol occured at the same time

Jno Gavin Also John Gaven-- who stated that he was the husband of the deceased, that he was 26 years of age and belonged to the Regiment U S Volunteers, that he lived partly in the Hospital and partly in his home, having leave from the Hospital surgeon to spend his nights at home. He his wife had occupied the back kitchen of a house in McAllisters alley as a dwelling, He had seen the accused once before with a companion, about a week before the killing

They had come to his house and offered him a drink and he took it, when they remained in his room which he and his wife occupied, and witness left and returned in a short time, when they separated in a friendly manner -- about a week after this first interview, that is on the night preceding the homicide, the accused and his former companion again appeared and asked admittance into the room occupied by witness and wife -- It was about 9 or 10 O'Clock at night. They again offered

8 drink which he accepted and then left and did not return until about 12 O'Clock, when the deceased informed him that she had been insulted by the companion of accused. They then commenced quarreling and witness ordered them out of his house and pursued them throwing brickbats after them -- Next morning the accused returned and asked witness why he had insulted him and driven him from his premises and witness answered that he had nothing against the accused, that it was his companion who had caused all the difficulty -- On being cross examined, he stated that the quarrel of the morning of the homocide commenced in the back kitchen and that a side alley runs along the house from the alley to the kitchen, through which side alley the accused ran when pursued by witness -- Witness stated that in the pursuit he had picked up an axe to strike the accused; but had reflected on the enormity of the crime of murder and had thrown it aside; when accused had passed the gate in front of the house and had reached the centre of the alley, he turned and fired and killed witness's wife. The deceased and witness were not far apart and about 14 feet from the accused, she at the time be-

9 tween witness and accused with her left shoulder in front of the right shoulder of witness. Witness stated further that he had no doubt the accused aimed at and intended to kill the witness. He denied having introduced the accused to Miss McChord or to any girls in his room or in the house The whole scene from the altercation in the back kitchen to the shooting had not occupied more than five minutes of time Witness Gaven also stated, that on the morning of the homicide about 9 O'clock -- the morning after he had run accused and his friend from the premises, accused came to his house and shot at witness, which he avoided by striking the pistol up, that accused then turned and went to the front gate by way of a side alley -- that deceased followed accused to about five paces beyond the yard gate with a brick bat in her hand, that about the time accused had reached the gate-- witness had picked up an axe but laid it aside again and that accused did not see witness have the axe in his hand, but he witness saw the accused and that when accused shot deceased, witness and witness McChord, a woman, stood inside the gate -- Witness standing in the door of the house

10 and about 18 feet of deceased when she fell in the Street.

P Bullock Pearce Bullock heard a noise about 12 O'Clock on the night preceding the homicide, looked out of his window which overlooks McAllisters alley and saw John Gaven throw brickbats at two men, one of whom was the accused, and pursue them, heard Gaven cursing them and exclaim "I will follow you to hell," This was the night before the morning of the shooting of deceased by accused, As Gaven was chasing accused and another down the alley at night, and after Gaven had said "I will follow you to hell", one of the pursued said, "I will kill you for that."

M J McChord Mary Jane McChord, stated that the house, part of which John Gaven and wife occupied, was a house of ill fame; that on the night preceding the homicide, the accused and a companion were in the room occupied by Gaven and wife, and that Gaven called her in, saying, there is a beau for you. She remained in the room with the accused and Gaven left, not returning until shortly before 12 O'Clock. It was then that the parties quarreled, the wife of Gaven accusing the companion of the prisoner with having insulted her. There were more girls in the front part of the building and Gaven

11 knew the inmates and the character ^of^ the inmates house. He and his wife occupied the back kitchen of said house as their dwelling and had no other room, and it was in this room in which witness remained with the accused and where Gaven and wife left them. Witness McChord also stated that on the morning of the homicide accused after being in the house, went out on a porch where John Gaven was standing and shot at Gaven, he Gaven not having offered any violence to accused or used any threatening language towards him that witness heard -- that Gaven threw up his hand and she witness threw up her broom, both striking the pistol and the load passed over Gavens shoulder -- accused then went through the alley about 4 feet wide to the Street and deceased come out of the front room and followed accused and picked up a brick bat near the gate and was endeavoring to drive accused away when shot -- Witness McChord and John Gaven stood inside the yard fence, did not go out of it when accused shot deceased -- heard Gaven at no time threatening accused -- Dora Harris stayed in the same house -- It is a house of ill fame. There were more girls there at the time -- Gaven knew the inmates and the character of the house

12 Dora Harris -- Also stated that she was at the house of Gaven the morning of the shooting of deceased -- She occupies the next room to Gaven I saw accused go out on the porch in front of Gaven's room -- I heard Gaven ask accused "where is the man who was with you last night" and accused replied, "what is that to you" I remonstrated with Gaven and accused telling them not to have a fuss -- Gaven told accused he had no quarrel for accused, but with his companion who was with him on the night before -- accused then drew his pistol, presented it immediately at Gaven and Gaven throwing up his hand and witness McChord throwing up a broom stick they both knocked up the pistol and the load was discharged, when fired by accused over the Shoulder of Jno Gaven -- Gaven then went into his house (room) and accused turned as if to walk out on the street, through the side alley which leads to it (the street being called McAlisters alley), the deceased then came out of the front room of the house and tried to get accused to go away, followed him out through the gate into the street a few feet in front of the yard gate. I heard a pistol fire and ran out and found

13 deceased dying, She died in a few seconds after I got to her. The pistol used by accused when he shot at John Gaven was a small one with four barrels

This was all the evidence introduced by either party, the Court after argument of counsel for defence, instructed the jury as follows

Instructions -- The attorney for the Comlth moved the Court to instruct the Jury as follows towit.

Given 1st Murder is the wrongful killing any person in the peace of the Commonwealth with malice aforethought

Given 2d -- If the jury believe from the evidence that the accused killed the deceased as charged in the indictment with malice aforethought they should find him guilty of murder.

Given 3d -- If they believe from the evidence that the accused at the time of killing, believed & had good reason to believe that his life was in immediate danger, or that he was then in danger of great bodily harm and that there were then & there no other apparent means of safety to his life or person, they should acquit the accused.

Given 4th The right of self defense does not arise until the party has done all in his power to avoid the necessity of using it, and if by his own conduct he brings about such necessity he cannot

set it up as a defense to an indictment for homicide.

Given 5th The term aforethought, used in the 1st and 2d instructions, means a predetermination to kill, however sudden, or recently formed before the killing.

No other instructions were asked by either side or given by the Court. --

to which the defendant excepted at the time and still excepts, and the jury returned the jury following verdict -- We the jury find the accused John Welch guilty as charged in the within indictment. A A Quarrier foreman And thereupon on day defendant filed his motion for a new trial as follows (page 4) which the Court overruled, to which the defendant excepted at the time and still excepts, and the Court on the day of rendered judgment upon the verdict (page 4) from which judgment the defendant immediately after its rendition appealed and had his prayer noted upon the records of the Court which was done at the time and in words as follows (page 5)

P B Muir.

Amd Bill Excpts And be it further remembered that the instructions stated in the original bill

15 of exceptions were all the instructions given by the Court to the jury and this amended bill is signed within the same term, with the original bill and is prayed to be considered part thereof

J R Dupuy Comlth. Atty

Martin Bijur for Welsh P B Muir

State of Kentucky

I James P Chambers Clerk Jefferson Circuit Court in the State aforesaid certify that the foregoing fifteen pages this included contain a full, true and complete transcript of the record and proceedings had in the case therein mentioned In testimony whereof I have hereunto set my hand as Clerk as aforesaid this 6 July 1864

James P Chambers c

Index Indictment1Order impanneling jury and verdict2" of motion for new trial3Grounds for new trial4Order of Sentence4" filing bill exceptions5Bill of exceptions5Charles Hale's evidence5John Gavin7Pearce Bullock10Mary Jane McChord10Dora Harris12Instructions13Amended bill of exceptions14