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State of Kentucky
Morgan Circuit Court. } Sct.
Pleas before the Honorable William H. Burns Sole Judge of the Morgan Circuit Court at the Court House thereof in the Town of West Liberty on the th day of November 1859
The Commonwealth of Kentucky. Plaintiff
against
Henry C. Davis Defendant } Murder.
Be it remembered that heretofore Towit on the th day of May 1859
Morgan Circuit Court
The Commonwealth of Kentucky
Against.
H. C Davis } Indictment
The Grand Jury of Morgan County in the name and by the authority of the Commonwealth of Kentucky accuse H. C. Davis of the offence of Murder. Commited as follows. towit The said H. C Davis on the th day of Febuary 1859
A True Bill
G. D. Phillips Foreman
Afterwards Towit on the th May 1859Towit
Commonwealth Plaintiff
Against.
H. C Davis Defendant } Indictment for Murder
This day came the attorney for the Commonwealth and the Defendant entered his appearance in Discharge of his Recognizance and by consent. this cause is Set for trial on the th dayth dayill will pay to the Commonwealth the Sum of one thousand Dollars.
and afterwards, towit on the Same day appears the following order of Record.
Commonwealth Plaintiff
against
H. C. Davis Defendant } Indictment for Murder
This day came the attorney for the commonwealth and also the attorney for the Defendant and the prisoner being in Court by consent the order Setting this cause for trial on the th dayon a charge of Murder and shall at all times render himself ameanable to the orders and process of the court in the prosecution of Said charge and if convicted he shall render himself in execution thereof or if he fails to perform either of these conditions that we will pay to the Commonwealth the Sum of one thousand Dollars
Afterwards Towit,, on the d day of November 1859
th
The Commonwealth Plaintiff
Against
Henry C. Davis Defendant } Indictment for Murder
This day came the attorney for the Commonwealth and the Defendant appeared in his own propper person in discharge of his Recognizance and being arraigned to the Bar entered his plea of not Guilty of the charge in the Indictment whereupon came a Jury Towit,, James H. May, Francis Hunter, James F. Gullett, Walters C. Easterling, James Oney, Richard F. Wells, James W. Nickell, Mason Gullett, John H Day, Garrett W. Bolin, Solomon F Spradlin and Thomas E. Lewis who being elected ^chosen^ tried and Sworn and not having time to hear all the Evidence all adjourned untill eight oclock tomorrow. Morning after recieving the usual charge from the court and the prisoner is remanded to the custody of the Jailor Afterwards Towit on the th day of November 1859
The Commonwealth Plaintiff
Against
Henry C. Davis Defendant } Indictment for Murder
This day came the attorney for the Commonwealth and also the Defendant being arraigned to the Bar and thereupon came the Same venire as upon yesterday and not having time to hear the argument of counsel are adjourned till 8 oclock
th
tomorrow morning after receiving the usual charge from the court and the prisoner is remanded to the custody of the Jailor
Afterwards Towit,, on the th day of Novermber 1859
Commonealth Plaintiff
against
Henry C. Davis Defendant } Indictment for Murder
This day came the attorney for the Commonwealth and the prisoner being Set to the Bar and thereupon came the Same venire as upon yesterday and after hearing the evidence and arguement of counsel went to their room to consider of their verdict returned and upon their oaths Say We the Jury find the Defendant Guilty of manslaughter and that he be confined in the State Penitentiary for a period of Two years and thereupon the Jury is discharged and the prisoner remanded to the custody of the Jailor. Afterwards, Towit on the th day of November 1859
Commonwealth Plaintiff
against
Henry C. Davis Defendant } Indictment for Murder
This day came the Defendant by his attorney and filed grounds for a new trial. Towit,,
Commonwealth
vs.
Davis } Grounds for new Trial
th
The Defendant mooves the Court for a new trial on the following Grounds
1 st The Court misinstructed the Jury as to the Law of the case
2 nd The verdict of the Jury is against the Law and evidence in the cause
Afterwards Towit,, on the th day of November 1859
Commonwealth Plaintiff
against.
Henry C. Davis Defendant }
This day came the attorney for the Commonwealth and the prisoner being set to the Bar and the Motion for a new trial coming on to be heard and the court being fully advised it is now adjudged by the court that the motion for a new trial be overruled to which opinion of the Court the Defendant accepted to and the prisoner is remanded to the custody of the Jailor
Afterwards Towit on the th day of November 1859
Commonwealth Plaintiff
against
Henry C. Davis Defendant } Indictment for murder
This day came the attorney for the Commonwealth and the prisoner being brought into court and being informed of the nature of the Indictment Plea and verdict of the Jury and being asked
th
If he had any reason to Shew why the Judgement of the court Shall not be pronounced against him and none being Shown it is therefore adjudged by the Court that the prisoner Henry C. Davis be remanded to Jail and from thence he shall be taken by the Sheriff of Morgan County to the State Penitentiary and there loged with the Keeper to be confined at hard labor for the full period of Two years from the time of his commitment to the Penitentiary,,
Afterwards Towit,, on the th day of November 1859
Commonwealth Plaintiff
against
Henry C. Davis } Indictment for Murder
This day came the Defendants counsel and tendered his bill of Exceptions which is approved by the court. Signed Sealed and ordered to be incorporated into the Record and on his motion an appeal is granted the Defendant to the court of appeals and on his further motion it is ordered by the court that the prisoner Remain in the custody of the Jailor untill the th day of December 1859
th
Which bill of Exceptions is in the following words and figures towit,,
Morgan Circuit Court
The Commonwealth
against
H. C. Davis } Bill of Exceptions
Be it remembered on the trial of this case the Commonwealth introduced J. P. Miller who proved he was at Swiftsville the day Bush was Killed, he did not See him Killed but seen him Soon after he was Killed it was done in Morgan County before the indictment was found it was on the Sabbath day he thinks in thehorse won was the Deceased horse. the Deceased was as witness supposes from his appearance about fifty years old or upwards was quite gray after the prisioner won the horse. he and others Started off riding up the road they got to about the School House and the prisioner rode back, as he crossed the creek coming back which is about half way between the Black Smith Shop and grocery, Bush and him met Bush had a club in his hand and appeared to hold it as though he intended to Strike with it and Said Something to the prisioner about his deceased Saddle the prisioner
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the prisioner rode on to the grocery and Bush and Henry Evans and Bush and Henry Evans came to the Shop. Bush was intoxicated as witness thought. Snodgrass and Bush had Some words, Bush Said Snodgrass was a damd rascal Snodgrass took hold of him and threw him on the ground and held him there did not appear to want to hurt him after they got up witness Seen the blade of a large ^pocket^ Knife Sticking out of Bushes out Side pocket of his coat and he Seen William C. Miller Slip it out and Shut it up and put it into his own pocket, he knew he was drunk and did not know but he would hurt Some one with it, the prisoner had rode up to the Shop when the fussing was going on and whilst Snodgrass and Bush was fussing set on his horse, But when they quit Snodgrass and Henry Evans was about to get into a fuss and the prisoner Said those men were friends and ought anda not to be let fight and Jumped off of his horse leaving him Standing without hitching him and Started towards Evans and Snodgrass as witness thought to Stop them from fighting and Bush caught him arround the waist apparently to hold him. The prisioner Said let me go, let me go god dam you let me go in quick Succession and tore himself loose from Bush and turned around and Struck him
th,,
in the forehead with his fist and Knocked him down and went on to Evans and Snodgrass and witness afterwards Seen him between them Soon after he does not know how long perhaps as much as five minutes he heard a fuss looked arround. Seen the prisioner with a blody Knife in his hand Seven or eight inches long in the blade and Seen Bush laying on the ground Dying he was about dead he had three wounds or cuts one in the hip one in the fleshy part of the arm and one in the centre of his breast,, the stab in the breast was about one inch wide entered crossways of the breast he did not probe it does not know which wound Killed Bush but Supposes the one in the breast
John P Moore was preasant at Swiftsville when Bush was Killed, he Seen Bush pass him with the Stick in his hand. immediately afterwards he turned and Seen Davis running and Bush after him with the Stick he ran Some few steps and turned arround and Struck Bush, he did not see the Knife then. Bush turned back and Davis Struck again and Bush fell he thinks partty pretty near on his back and Davis then Struck him in the breast with the Knife. This was the first time he Seen the Knife after he Struck him in the Breast he turned arround walked
th,,
into the Shop he Says there was nothing to Stop Davis from running on from Bush that he Seen on cross examination he Said when Bush fell before Daivs Struck him in the Breast with the Knife he was laying nearly on his back his head was from Davis, Davis Stood over him but he could not tell wheather he Stood by his feet or Side. Says he Seen Bush Strike at Davis with the club as he Bush was falling
J. C. Moore was at Swiftsville the day Bush was Killed, witness and Buckhannan and prisioner was Standing at the end of the Shop talking and the Deceased came up rather at the Side of prisioner and Struck him with the club on the head which nearly Knocked him down Prisioner made off and Bush persued him and Struck him on the cheek and prisioner fell partly down he did not fall flat but caught on his hands, as he arrose he drew the Knife from under the waistband of his breeches and turned and Struck Bush in the hip with it he Struck him again with it on the arm and Bush got down not flat on his back but rather on his elbow and back and the prissioner raised the Knife and Struck him in the breast, the licks with the Knife were made in quick Succession, he Seen the Blood run freely from the prissioners head where Bush Struck him, the lick on the head cut the Scalp
th.
about one half of an inch did not examine to See wheather it cut to the bone or not Bush was intoxicated, he thinks Bush Struck Davis with the club on the arm once after Davis Struck him the first lick with the Knife as Bush was falling
c Phearsons Testimony
John McPhearson swore he was preasant he was about fifteen years old Seen prissioner and deceased playing cards, Seen prissioner Knock Bush down when Snodgrass and Evans was about to fight.
Liberty Bowman was present. Seen Davis Knock Bush down about five minutes after Seen Bush come up rather to the Side of Davis and Strike him with the Stick on the Side of the head and knocked him nearly down, Davis Started to run and Bush Struck him on the cheek, and Knocked him to his Knee and hand as he arrose he drew his Knife and Struck Bush three times in quick Succession once on the hip once on the arm and then in the breast --
cGuires Testimony
Warwick McGuire Swore that the prissioner told him that he had Knocked Bush down before he Killed him, did not Say how long before, said Evans and Snodgrass was about to fight and he ran in to Keep peace and prissioner caught him and pulled him back and he Struck him, he Said Bush Stuck him twice before he cut him -- the first lick stuned and blinded him he did not know
th,
at first who Struck him.
Hiram Bakers Swore, he seen Bush fall he did Not moove after he fell he was cut in the hip arm and center of the breast he dont Know which cut Killed him. Supposes the one in the breast did. Bush was blacked that day and So was Buckhannan dont know who done it he was verry drunk too. The cane was a hickory Stick about two and a half or three feet long and about three forths of an inch or one inch in diameter at the big end with an iron
The attorney for the Commonwealth then introduced Henry Bowman who proved that he Saw Davis and Bush before the murder happened gaiming for a horse the horse was Staked up in his presence Davis won the horse Saw nothing else bet the horse was worth Ten or Fifteen Dollars. Davis did not take the horse off after the card playing Davis Started off about Same time witness and some others and went one Hundred yards or So and Davis got up to to ride behind Davis rode up nearly to the School house and then
th
turned an rode back for a bottle of whiskey did not See either of the fights Saw Bush after he was cut he was about dead this was about Short time after he Seen the croud at the Shop was not very long from the time Davis went back untell Bush was Killed perhaps five or ten minutes the Shop was about eighteen feet long don't know that there was any fighting at the Shop Davis did not take the horse they were gaiming for he being Successful in the game Davis left Shortly after the game was over he was going to Some mans house to stay all night got one or two hundred yards on the way no whiskey being in company Davis went back for whiskey Something was Said about Davis buying the whiskey. Evans and Bowman in company Davis road witness horse back when Davis was at the creek Seen Bush approaching Davis with a rail at this time the first fuss commenced at the Shop Davis rode up to the Shop got off the horse this fuss was at one end of the Shop and Bush was Killed at the other end the distance from one point to the other was about ten yards, Davis did not take the horse off Mullins rode the horse off for Davis Mullins was a partner of Davis, he took Bush to be pretty drunk was about fifty years old and tolerably gray, the horse Davis won was an old one might have brought Ten Dollars or Something, over Bush was blacked before he was Killed
th.
it was done in the Shop dont know who blacked him Saw him come out of the Shop took him to be very drunk. There was a difficulty in the Shop Says that if Davis had any hand in it he did not Know it, but if they had been thinks he would have Seen them Says that Bush was a Stout man in his condition and would have been able to have contended with any body
Granville Evans was next introduced for the Commonwealth. States he Saw Davis ten or eleven Oclock that morning Saw him in the Shop and Saw him out doors Saw him in the Grocery Says he knows nothing indeed does not Know which cut Killed Bush. thinks the one in the breast did Saw Davises wounds Saw the cut on his head and the one on the cheek. They looked like they was bad cuts.
m C. Miller
William C. Miller was Sworn on the part of the defence Says he was in the Smith Shop when Bush was Killed was present when Bush and Snodgrass had Some words Bush called Snodgrass a damd rascal, Snodgrass said to Bush he must take it back he refused to and repeated it again. Snodgrass took hold of Bush not to hurt him as he thought witness Saw a Knife open in Bushes pocket witness Sliped up to Bush and took his Knife out of his pocket it was a large pocket Knife with a blade Some
th
four inches in length Saw Davis riding towards the Shop Bush and Evans met Davis at the creek and Bush drew a club on Davis in a Striking position witness told Davis to take care or Bush would Strike him Bush was blacked that day does not Know who done it witness considered Bush tolerably groggy
Isom Roberts Examined for the Defence Says he was at the Shop the day Bush was Killed Bush was blacked that day dont know who done it noticed Davis hands they was not black witness was blacked himself Says there was card playing there Davis and Bush played cannot Say posatively that the horse was put up Davis had nothing to do with the blacking Davis was not in the Shop as he believes
Alexander Drake introduced for the Defendant Says that he was present when Bush was Killed. Saw Davis running Saw Bush strike one lick and Knocked him to his hands and Knees and Davis Struck Bush three times the first lick was made as he rose up and hit Bush in the hip Says that Bush had the Stick. Saw it at the court of inquiry and the iron Socket was off Says Evans & Snodgrass fuss was ten or fifteen minutes before the Killing Davis got off his horse to settle the fuss between Evans and Snodgrass Witness lived about one mile distant this happened on Sunday Saw the
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gaiming between Bush and Davis they were gaiming for a horse Davis won the horse went to the grocery after the gaiming Davis was riding H. Bowmans horse up the road Seen Snodgrass push Bush over in the Shop yard Bush acted like he was partty drunk at the time. Saw Davis Start into the croud and Saw him between Evans and Snodgrass Saw Bush down it was from five to fifteen minutes from the first difficulty to the Second when Bush was killed
C M. Hanks Examined for the Defence Says he was at Swiftsville the day Bush was Killed witness saw Bush in a few minutes after he was Killed, the horse gambled for was hitched at the time near by witness took the horse and fed him Says the wound on Davis he examined that night Saw him immediately after the occurance and he was some bloody Says Bush was an insulting man of bad temper disposed to get into difficulties, Saw him most always carrying a double barrel shot Gun when he went from home.
Robert Snodgrass examined Says that the Stick Shown to him Seems to be the Stick Bush Struck Davis with it had an iron Socket on it thinks the stick Shown him is the Stick witness Set up against the Shop when he came then did not See it any moore from the time he set
th
it there untill now. does not remember to have Saw Davis before the day Bush was Killed th February 1859
This being all the evidence after arguments of counsel the prissioner and Commonwealth asked the Court to instruct the Jury &c as to the Law and the Court gave the Jury the following instructions
The Court instructs the Jury that if they believe from the Evidence that the prisioner in Morgan county before the indictment was found with mallaceaforethought Stabbed and Killed Lewellen Bush he is Guilty of Murder and the Jury must find him So.
o 2
Malace is either Express or the Law implies it Express Mallace Exists when one with a Sedate, deliberate mind and formed design doth Kill another. The formed design to Kill is discovered by External Signs discovering the inward intent to Kill, as laying in wait antecedent menaces, former grudges previous threats, the preperation of deadly weapons to do it with or concerted Schemes to do the deceased Some bodily harm a Killing attended with any of these circumstances discovering mallace is murder.
Implied mallace arises by construction of Law from the act of Killing as when one Kills another Suddenly with a deadly weapon: without any, or without a considerable provocation, or in a fight where the Slayor begins it under circumstances of undue advantage of his adversary as being armed wtih a deadly weapon with which he Kills his adversary a Killing attended with these circumstances is likewise murder.,,
If the Jury believe from the Evidence that the prissioner in morgan county before the indictment was found Stabbed and Killed Lewellen Bush in Sudden heat of passion without mallace, then he is not Guilty of Murder
th
But he is Guilty of manslaughter and the Jury must so find him and by their verdict ascertain his term of confinement in the penatentiary any term of time not less than Two nor above Ten years
The Jury will observe that if the prissioner Killed the Deceased as defined in the instruction Number 1 with mallace afore thought as defined in instructions No 2 or 3 either it is murder
But if he Killed him as defined in instructions number 4 without the circumstances of mallace as defined in instructions either number 2 or 3 then it is not murder. But is a case of manslaughter But if the Jury believes from the Evidence that at the time the prissioner gave the Deceased the Mortal Stab that Killed him he had reasonable grounds So beleive and did actually believe that the Deceased was then about to Kill him or inflict on him Some great bodily harm and that he furthermore had reasonable grounds to beleive and actually did believe that he had no other apparent means to avoid Such danger to himself by a retreat or otherwise except to Slay the deceased then he had the right to Slay him
in his own defence and he is neither Guilty of murder or manslaughter and the Jury Should acquit him
But this last instruction must be taken by the Jury with this qualification that if they believe from the Evidence that the prissioner Sought the conflict with Bush in which he was Killed or in any way premeditated it he cannot excuse himself for Killing L Bush in it by the plea of self defence, or if they believe from the evidence that at the time the prissioner gave the Mortal Stab that Killed Bush he had reasonable grounds to believe and did believe that he had other apparent means to escape the danger to himself otherwise than by Killing Bush but being Struck by Bush in the fury of his mind Stabbed and Killed Bush with a feeling to retort on Bush and not as an only apparent Safe means to defend himself from Bushes attack on him he is Guilty of manslaughter at least -- unless the Jury beleves from the evidence that the prissioner is proved, guilty to be Guilty beyond a reasonable doubt of either murder or manslaughter
they must acquit him.
But if they believe from the evidence to the exclusion of a reasonable doubt that he is proven to be guilty of either murder or manslaughter but have a reasonable doubt of which offence he is proven Guilty then they must convict him of manslaughter.
A reasonable doubt is one growing out of the facts and circumstances in evidence before the Jury.
It is not a mere chimera of the Jurors mind not growing out of the evidence before them. to acquit on light and trivial doubts not growing out of the evidence is a virtual violation of the Jurors oath it is detrimental to the best interest of Society and tends to encouragement of malefactors to which the prisioner excepted the Jury retired and returned a verdict that they found the prissioner Guilty of manslaughter and fixed his confinement at Two years in the penitentiary the prissioner filed Grounds for a new trial which were overruled by the Court and the prissioner excepted and on the 14 th day of the term the prissioner was brought to the bar and the court informed
him of the nature of the indictment his plea the trial and verdict against him and demanded of him wheather he had any reason to offer why the Judgement of the law Should not be rendered against him on the verdict of the Jury and he Showing no Sufficient reason the Court rendered Judgement against him (here insert it)
The Judgement of the Court refered to in the Bill of exceptions will be found on page Six of this record.
to which the prissioner excepted and tendered this his bill of exceptions and prayed it might be Signed Sealed and allowed by the Court which was done.
William H. Burns
State of Kentucky
Morgan Circuit sct
I William Mynhair clerk of the Morgan Circuit Court do cirtify that the foregoing 23th pages contains a full and fair Transcript of the Record and papers on file in my office in the above legal cause given under my hand as clerk aforesaid this d day of December 1859
Wm Mynheir C, M, C, C
Index to Record
Fee for Transcript
Commonwealth
vs } Copy Record
Henry C. Davis.
Frankfort Ky
Dec. 15th
An appeal refused herein.
Henry T. Stiles
Judge of Appeals
Pardoned
B. M
Issd