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The State Vs. Virgil Butt
1915 - Part I

Source:  TSL&A Microfilm # A-5162
Sumner County Probate Records (County or Chancery)
Loose Records 3444 - 3513

Transcribed by Jan J. Barnes
© 2002

Loose Record # 3444

Testimony of Elizabeth Mays and Edna Hester

Mrs. Elizabeth Mays called for the defendant, being first duly sworn, deposed as follows:
Direct Examination by Mr. Bass

Q,  What is your name?
A.  Elizabeth Mays
Q.  Mrs. Mays where do you live?
A.  I live at Portland, Tennessee
Q.  What street do you live on?
A.  I live on High Street.
Q.  Are you living in the same house now that you were occupying on the day that Mr. Hester was said to have been killed?
A.  Yes sir.
Q.  Where do you live with reference to the Hester home?
A.  It was right there next door to Hester's, a yard fence between us.
Q.  On which side of your house was Mr. Hester's house?
A.  On the east side.
Q.  You knew Mr. Hester?
A.  Yes sir I knew him.
Q.  Do you know Mrs. Hester?
A.  Yes sir.
Q.  How long did you live there next door neighbor?
A.  We have been living there nearly four years.
Q.  Did you see this shooting?
A.  No sir I did not.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  Immediately before the shooting took place did you hear any conversation between Mr. and Mrs. Hester?
A.  Yes sir.
Q.  Did you hear any conversation between Mr. and Mrs. Hester about Mr. Hester going out of the house and going somewhere?
A.  Yes sir.
Q.  Just tell what they said.
BY MR. SEAY:  How long before the shooting was it?

BY MR. BASS:  Immediately before the shooting.

BY MR. SEAY:  What transpired before the shooting I don't think would be competent.

BY THE COURT:  I don't know whether it would or not, I can't determine from the nature of the question.  I think the question should be more specific Mr. Bass.

BY MR. SEAY:  We object to the question in its present form.
Q.  I will ask you Mrs. Mays if you heard Mr. Hester say where he was going and what he was going for, and if you heard Mrs. Hester say anything to him trying to keep him from going immediately, did you?
A.  Yes sir.

BY MR. SEAY:  What Mrs. Hester may have said we submit would not be competent.

BY THE COURT:    I think the question is competent Mr. Seay.  I know the idea has not been gathering much force that it is the duty of the Court to exclude from the jury information that enables the jury to arrive at a correct conclusion about any transaction but I don't want to be put in the attitude of excluding from the jury information that the jury legitimately ought to have, information which the jury should be given.  I think the question is competent.

Q.  State what was said in that particular?
A.  When I stepped out on the back porch I heard Mrs. Hester say, don't do that Al, please don't go Al, come back, and he stepped off, - must I tell that?
Q.  Just tell what he said.
A.  He stepped off the porch and said, this is his last time to come up that walk I will settle with him, and he rushed on and crossed over to McGuires.
Q.  Rushed on out where?
A.  On out in front of the door.
Q.  And crossed over which way?
A.  At Mr. McGuires.
Q.  Which way did he go?
A.  He went down towards the big gate.
Q.  Down towards the Virgil Butt gate?
A.  Yes sir.
Q.  Did you see Virgil Butt?
A.  Yes sir.
Q.  Where was he?
A.  Coming up the walk, wasn't but a little ways.
Q.  Did you see the shooting?
A.  No sir.
Q.  Where were you that you didn't see the shooting?
A.  Simply because I turned away, I didn't want to see it.
Q.  Where were you?
A.  Out in my back yard.
Q.  Where were Mr. and Mrs. Hester when this conversation took place?
A.  On their front porch.
Q.  Could you see them as well as hear them?
A.  Yes sir.

CROSS EXAMINATION BY MR. SEAY
Q.  You say this is Mrs. Elizabeth Mays?
A.  Yes sir.
Q.  You are the mother of Clint Mays?
A.  Yes sir.
Q.  Clint Mays worked for Mr. Butt at the time of this killing?
A.  Yes sir.
Q.  Still works there in his stable?
A.  No sir he does not.
Q.  When did he quit?
A.  I don't know, he quit when they sold out Mr. Butt's business.
Q.  Since the killing they sold out Mr. Butt's business and Clint has not worked there?
A.  No sir.
Q.  Your house is here right east of Hester's?
A.  Yes sir.
Q.  And what sort of a house is that?
A.  My house?
Q.  Yes?
A.  It is just a six room house.
Q.  A frame house?
A.  Yes sir it is a tall house.  I reckon about the tallest along there.
Q.  Two story?
A.  No sir just a one story.
Q.  Has it a gallery in front?
A.  Yes sir.
Q.  A gallery in the rear?
A.  Yes sir.
Q.  And the gallery in the rear is on the east side?
A.  Yes sir.
Q.  On the side furthest from Hester's, where the gallery is in the rear?
A.  Yes sir.
Q.  Mr. Hester has a house that is a frame house one story?
A.  No sir Mr. Hester's house is a two-story house.
Q.  It has two stories?
A.  yes sir.
Adjournment for dinner.
BY MR. BASS:
Q.  There is one question--Mrs. Mays there is one question that I overlooked asking you this morning, what were you out in your yard for that morning?
A.  I had gone out to get apples to make jelly.
Q.  Do you mean to get apples off the trees?
A.  No sir my son had been gathering apples for Dr. Moore and he gave him a hamper full of those apples that wouldn't do to ship, and he brought them up and gave them to me and I told him to set them under the woodshed, and I had to go in the back yard before I could get them.

CROSS EXAMINATION CONTINUED:
Q.  Now Mrs. Mays I believe when court adjourned I was asking you about the character of your property and the character of Mr. Hester's property.  I understood you to say that Mr. Hester's house was a two story house?
A.  It has an upstairs to it.
Q.  And yours is a one story house?
A.  Yes sir.
Q.  Now how many rooms in your house?
A.  We have six rooms counting a little room on the back porch here I have to keep my clothes and bed clothes, things like that.
Q.  How many of the rooms on the west side of the house?
A.  Next to Mr. Hester's?
Q.  Yes?
A.  There is three.
Q.  Three rooms on the west side of the house?
A.  Yes sir.
Q.  Did they have windows opening out towards Hester's all of them?
A.  Yes sir.
Q.  The first room nearest to the street is what?
A.  The nearest to the street?
Q.  Yes?
A.  Well, that is my front room.
Q.  The second room?
A.  Is my dining room.
Q.  The third room?
A.  Is my cook room, kitchen.
Q.  And on the other side three other rooms one of which is a little room on the gallery?
A.  Yes sir.
Q.  I understood you to say that your back gallery was on the east side of your house?
A.  Yes sir.
Q.  Did you have a hall through the middle?
A.  Yes sir.
Q.  Now you had gone out into your back premises I understand?
A.  Yes sir.
Q.  To get some apples to cook for dinner?
A.  No sir, to make jelly of.
Q.  To make jelly?
A.  Yes sir.
Q.  And the apples you say were back in the wood shed?
A.  They were sitting on a bench under the wood shed.
Q.  Where is that wood shed?
A.  It is in my back yard.
Q.  How far from your house?
A.  Oh well, it is not but a little ways I have never measured the distance.
Q.  Give us your best estimate of the distance from your cook room there, your room furthest north in your house?
A.  I just don't know hardly how to guess at it.
Q.  Twenty five or thirty feet?
A.  I suppose as far as from here over to that banister to my wood shed or smokehouse.
Q.  That would be twenty or twenty five feet?
A.  I suppose it would be that far I won't say how far.
Q.  That is about the distance as near as you can recall it?
A.  Yes sir.
Q.  Do you remember how far your house sits back from the street, how long your front pavement is, you had a front pavement out to the front had you not?
A.  Yes sir.
Q.  How long is that?
A.  I just have a little front yard, I don't suppose it is over twelve feet, and a little walk.
Q.  You have a gallery in front?
A.  Yes sir.
Q.  You mean from your steps where it goes out to the walk is about twelve feet from there to the street?
A.  I suppose so, I don't know that it is.
Q.  As near as you can recall it, your best impression?
A.  Yes sir, of course I never measured it.
Q.  I understood you to say that you saw Mr. Butt coming up the street?
A.  Yes sir.
Q.  Where was he when you saw him?
A.  He wasn't far from his big gate down there.
Q.  He was down near his big gate?
A.  Yes sir.
Q.  About how far would you say from the big gate?
A.  Well, I just wouldn't say for I don't know.
Q.  Just as near as you can?
A.  I didn't measure nothing like that.
Q.  As near as you can come at it, what would be your best impression as to how far below his big gate he was?
A.  I don't know.
Q.  Do you remember the telephone pole that sits up just east of his big gate?
A.  Yes sir I remember that.
Q.  How far now with reference to that pole would you say he was back towards town?
A.  Well, I just can't hardly say, but he wasn't far from his big gate when I seen him.
Q.  Wasn't far from his big gate when you saw him?
A.  No sir.
Q.  Was he as far from you to the railing over there?
A.  Well, I suppose he was, I don't know that.
Q.  As far as to this post here by the jury?
A.  I guess he was,  won't say positive for I don't know.
Q.  You just don't remember about that?
A.  About things like that I never remember them.
Q.  You say you saw Mr. and Mrs. Hester on their front gallery?
A.  Yes sir.
Q.  Where did they come from?
A.  They were out there when I went there I don't know.
Q.  They were out there on the front gallery when you walked out your back way?
A.  Yes sir.
Q.  Were they standing in front of the front door?
A.  Mrs. Hester was up kind of towards the swing that sits out there on the east side of the house.
Q.  Who was up towards the swing?
A.  She was kind of up there when I first saw her.
Q.  Where was Mr. Hester?
A.  He was standing there it looked like about half way of the front porch to the door.
Q.  You mean about half way from the steps where you go up on the porch to the front door?
A.  Yes sir.
Q.  And in front of the front door?
A.  Yes sir.
Q.  You walked out on your back gallery, did you see him before you got off of your gallery?
A.  I couldn't see him on my back gallery.
Q.  You walked down to the wood shed?
A.  Yes sir I heard Mrs. Hester when I first walked out there and that caused me to-- that drawed my attention hearing her begging you know.
Q.  How far had you gotten from your gallery before you heard Mrs. Hester say something?
A.  I hadn't got but just around where I could see over there, I couldn't see their house from my back gallery.
Q.  You say you had gotten off your back gallery?
A.  Yes sir.
Q.  And you were out there--
A.  I was about half way I suppose from the back gallery to the wood shed.
Q.  You were about half way from the back gallery to the wood shed, will you take this pointer and indicate on this drawing about where you were?
A.  Oh well, I don't know enough about that.
Q.  Just come here and I will explain to you, this is Mr. Hester's house and you lived next door there?
A.  Yes sir.
Q.  That about shows the relative location of the houses does it not?
A.  Yes sir I suppose so.
Q.  Your house comes back here, you have three rooms and your kitchen is the back room?
A.  It is on the north, my kitchen is on the north end.
Q.  This is the north up here, this is the front and this is High Street, there?
A.  I don't know nothing about things like that.
Q.  This is High Street you live on and this is your front and this is the back, this way is north and is the back part of your premises?
A.  Yes sir.
Q.  What does this represent right here?
A.  Does that represent the wood shed?
Q.  The wood shed is about in the rear of your premises?
A.  Yes sir I suppose so.
Q.  That, you think, fairly represents where the wood shed is?
A.  Not if this is the front of the house that is not the way of it.
Q.  Locate it then, if this is the front where is the wood shed?
A.  There is my cook room right there.
Q.  That is on the other street over here?
A.  I told you that I didn't know nothing about drawing work that way.
Q.  I am trying to explain it to you?
A.  I know you are.
Q.  You know where High Street is?
A.  I know where my house is built all right.
Q.  This is High Street, you know that this is High Street you live on?
A.  Yes sir.
Q.  You live on the north side of High Street the same side that Mr. Hester lived on?
A.  Yes sir.
Q.  Your house is the next house east of Mr. Hester's?
A.  Yes sir.
Q.  Then your house fronts south, you walk out on your front porch and look south?
A.  Yes sir.
Q.  Then your house backs towards the rear north?
A.  Yes sir my back yard and out buildings are back on the north.
Q.  This is north back toward me, you have an alley back of your premises here haven't you?
A.  Yes sir.
Q.  Here is the alley represented by this mark, you have a garden in between your alley and wood shed?
A.  Yes sir.
Q.  This is the back end of your house, indicate about where your wood shed is, this represents your house and this is the front and this is the back of your house, now where is your wood shed, and this is the alley here?
A.  I am afraid I will put it down wrong.
Q.  Give that as near as you can?
A.  I don't know nothing about this drawing.
Q.  We are not asking you about the drawing, we are just talking your premises and asking you to indicate about how, with reference to the rear of your house, that wood shed that you say those apples were in that you started to get, indicate with that pointer where that wood shed would be located, this is your house right here and this is Mr. Hester's house?
A.  I suppose it would be over there (Indicating)
Q.  The wood shed would be over here?
A.  On the north side did you say?
Q.  This is the north side.
A.  Well, if that is the north side back here--
Q.  This is the north end of your house right here where my finger is, do you see that mark there?
A.  Yes sir.
Q.  Where would your wood shed be where you said the apples were, back near the alley?
A.  Yes sir it is out towards the alley, my garden is right at the back of my wood shed and then the alley.
Q.  Here is the alley, here?
A.  Well, there is the wood shed then. (Indicating)
Q.  Is the wood shed on the alley?
A.  I told you I didn't know nothing about that.
Q.  You don't know whether your wood shed is on the alley or not?
A.  No sir it is not on the alley, it is out in the back yard.
Q.  It is not in the garden is it?
A.  Part of it makes the garden fence, the back of it.
Q.  The wood shed makes the garden fence?
A.  Part of it and smoke house and then the wood shed and chicken house is all along together.
Q.  Then there is a little closet back on the alley?
A.  It is back next to the alley.
Q.  We get it then that the wood shed makes part of the fence from the back yard into your garden?
A.  Yes sir that is as near as I can get at it.
Q.  You had gotten about halfway from your back gallery to the wood shed when you heard Mrs. Hester speak?
A.  I suppose I was about half way.
Q.  Then you looked up and saw Mrs. Hester near the swing?
A.  Yes sir.
Q.  You saw Mr. Hester standing in front of the door about midway between that and the steps?
A.  I suppose he was about midway.
Q.  And you saw Mr. Butt down here about fifteen or twenty feet below his gate?
A.  I suppose so
Q.  Did you see Mr Butt before you saw Mr. Hester?
A.  No sir I did not.
Q.  You saw Mr. Hester first?
A.  Yes sir.
Q.  You saw Mrs. Hester before you saw Mr. Butt?
A.  Yes sir.
Q.  And then when you heard Mrs. Hester speak you stopped?
A.  Yes sir I stopped.
Q.  Did you stand there?
A.  No sir.
Q.  What did you do?
A.  Well, when I heard him say what he did I went up in the corner of my yard, I have a little lattace fence there that cuts the back yard off from my front and I went to the corner of that so I could see towards town.
Q.  You walked up to where the division fence is?
A.  Yes sir.
Q.  Where is that division fence with reference to the dining room?
A.  It is right here at the corner of my dining room.
Q.  Right between your dining room and your kitchen just about?
A.  Yes sir.
Q.  On the side next to Mr. Hester's, that cross fence is two rooms back from the front of your house?
A.  No sir there is one room, just the front room on the front side and then my kitchen and dining room on the other side of that little fence.
Q.  Do you mean to say that the little fence takes in the front of your dining room or the back of it?
A.  Well it takes in all of the dining room.
Q.  Does that put your dining room in your front yard?
A.  It puts my dining room in my back yard from the little fence and my kitchen.
Q.  Then that leaves the front room over to itself.  You walked around your house up to that fence?
A.  I just walked from where I was in the back yard going to the wood shed and was up in that corner.
Q.  Which corner, the corner next to Hester's?
A.  Next to Hester's.
Q.  Were you right in the corner right up at the fence, you got right up to the fence?
A.  Yes sir.
Q.  Where was Mr. Hester then?
A.  He stepped off the porch.
Q.  At that time had you seen Mr. Butt?
A.  No sir.
Q.  When did you see Mr. Butt?
A.  Well, I seen him when I got up to that fence and looked towards town.
Q.  When you got up to this fence and looked towards town you saw Mr. Butt down there fifteen or twenty feet west of his gate?
A.  I suppose he was that far, I don't know.
Q.  Just as near as you can guess at it?
A.  Yes as near as I can guess at it.
Q.  My question was where was Mr. Hester then?
A.  He had done stepped off the porch and stepped across the street right opposite Mr. McGuires.
Q.  He had stepped off of the porch and gone out into the street and crossed over?
A.  Yes sir.
Q.  And he was opposite Mr. McGuires?
A.  Yes sir.
Q.  Now how far is Mr. McGuires house, that is next to Mr. Kerley's is it, east of Mr. Kerley's?
A.  Well, yes sir, it is next door to Mr. Kerley's.
Q.  And he had crossed over there, did you see him cross the street?
A.  Yes sir.
Q.  Where did he cross the street?
A.  Right opposite Mr. McGuire's, just stepped across and got on the walk there at Mr. McGuire's.
Q.  He went down the street until he got opposite Mr. McGuire's, down on the pavement on his side?
A.  No sir he didn't.
Q.  I asked you where he crossed the street?
A.  He crossed over from his home, he stepped over here to Mrs. McGuire's, Mr. McGuire's is right in front of Mr. Hester's house and he stepped across in front of her house and got on that walk and went down towards town.
Q.  Who lives right immediately in front of Mr. Hester?
A.  Well, I suppose Mr. McGuire is about as near in front, and Moore lives there too, I believe that Mr. McGuire's is nearer in front than Mr. Moore's.
Q.  You say he crossed opposite Mr. McGuire's place?
A.  Yes sir.
Q.  Did you see him walking down there?
A.  Yes sir.
Q.  Walking along leisurely?
A.  No sir he seemed like he was in a kind of a hurry, rushing along.
Q.  When did he begin to rush?
A.  He just stepped off the porch that way, kind of rushed out it looked like.
Q.  Rushed off of the porch?
A.  Yes sir.
Q.  And rushed on across the street?
A.  Yes sir.
Q.  When you had gotten there you saw then Mr. Butt down here? (Indicating)
A.  Yes sir.
Q.  Was Mr. Hester running?
A.  No sir not when I seen him he wasn't.
Q.  How was Mr. Butt walking?
A.  Walking like he always walked.
Q.  He wasn't hurrying?
A.  He didn't seem to be in a hurry.
Q.  He was walking along leisurely?
A.  He always walked peart, every time I seen him he walked fast.
Q.  He was walking fast?
A.  He was walking in a long walk like I had always seen him.
Q.  You noticed nothing unusual about his walk?
A.  No sir I didn't.
Q.  Now then what did you do?
A.  Well, after I heard what I did and seen Mr. Butt coming up the walk I turned and went and got--I just thinks to myself from what I have been hearing I suppose you are going to have trouble and I don't want to see it and I turned and picked up the hamper and poured my apples in my pan and went on to my back porch.
Q.  You went back from where you were standing to your wood shed.
A.  Yes sir and got my apples.
Q.  You picked up your hamper of apples and went on to your back porch, then what did you do?
A.  Before I got into the back porch the shooting begun.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  What did you hear?
A.  I just heard some shooting, it went like a target to me, that is the way it sounded to me.
Q.  How many shots did you hear?
A.  I don't know, I wouldn't establish them at all, they were so fast, I couldn't tell.
Q.  Can you indicate how fast they were?
A.  It seemed like there might have been four or five or may be might have been more than that, I don't know, I wouldn't say how many, it was so fast I couldn't tell.
Q.  Did you notice any difference in the sounds of the guns?
A.  Yes sir there was another then set in directly, it was a louder report that the first ones.
Q.  How many guns did you hear?
A.  I don't know it was so fast I didn't count them.
Q.  How many different guns did they seem to be shooting?
A.  There didn't seem to be but two.
Q.  You didn't hear but two?
A.  That is all.
Q.  The best of your impression was that it was firing from two guns that is all you noticed?
A.  That is all I noticed.
Q.  And the last guns that were fired were the loudest?
A.  Yes sir, louder reports than the first ones, it seemed like it was, yes sir.
Q.  Now then, did you go out?
A.  I went on, yes sir, I went in my back porch and through the hall and out to the front gate and when I got out there it was all over.
Q.  What did you see when you got out there?
A.  I seen Mr. Hester laying there.
Q.  Did you go down there to where he was?
A.  No sir.
Q.  Did you cross the sidewalk?
A.  No sir I just stood at my front gate.
Q.  You didn't go any further than your front gate?
A.  No sir.
Q.  You saw Hester lying across the sidewalk?
A.  Yes sir.
Q.  Which way was his head?
A.  It was out towards the north.
Q.  Was his head off of the sidewalk towards the North?
A.  Well, no sir I don't believe it was, I don't think it was.
Q.  It hadn't gotten off?
A.  I don't remember of seeing any more of him than just his shoulders and head and the rest was back this other way, back south.
Q.  Had any body gotten there when you got out to your front gate?
A.  No sir the first I seen when I got out there was Mrs. Hester and her oldest little girl, they had gotten, I suppose-- they were not far from him, they got immediately to him when I got out.
Q.  You say you heard Mrs. Hester say something when you got in the back yard there?
A.  Yes sir.
Q.  What was it she said?
A.  She said "Don't do that Al, please come back, don't go".
Q.  She said, don't do that Al, please come back?
A.  Yes sir, don't go over there.
Q.  Where was Al going when she said that?
A.  I don't now, he just stepped off his porch and crossed over as I told you.
Q.  You said he didn't step off of the porch until you got up here in the corner?
A.  Well, when I heard her saying that I went up to the corner.
Q.  I understand that you walked from where you were standing up to the corner and you said Al was standing on the porch?
A.  I said when I first seen Mrs. Hester and heard her begging, he was standing there and I just went on.
Q.  Didn't you say he was standing there and notwithstanding he was standing there she said Al please don't do that, come back?
A.  If I said that I didn't mean it that way, when I heard her begging I stepped up to the corner.
Q.  What was it you didn't mean to say?
A.  I said when I heard her I looked over there and seen her and stepped up to the corner by the fence.
Q.  You said something you didn't mean to say, what was it that you didn't mean to say?
A.  I said when I heard her begging I stepped in the corner, I thought it was trouble between them.
Q.  You said that you heard her begging and say Al please don't do that, please come back?
A.  Yes sir.
Q.  You said after you heard that you walked up to the corner next to Hester's?
A.  Yes sir it wasn't but a step or two, it wasn't any further than from here to that post.
Q.  It wasn't any further than from here to that post?
A.  I don't suppose it was.
Q.  Didn't you say just now that your kitchen and dining room were in your back yard and your fence was up in front of both your kitchen and dining room?
A.  I was out in the back yard.
Q.  Didn't you say that Mrs. Mays?
A.  Yes sir I guess I did.
Q.  Now then, you said you were standing out fifteen or twenty feet from the back?
A.  No I didn't say how far, I said I suppose.
Q.  Didn't you say about as far as to that railing?
A.  I said I supposed, I wasn't saying positive, maybe my out buildings was further.
Q.  And you had to walk by your kitchen the length of two rooms and angling across to that corner, didn't you?
A.  If you will let me get up I will show you.
Q.  Answer that question, didn't you have to walk that distance?
A.  Yes sir it wasn't all that distance from where I was standing, I was about half way from my kitchen to my wood shed, then I turned and run up there to the corner.
Q.  You run up there?
A.  I rushed up there.
Q.  Did you run or rush, you said once you walked, now you say you run and rushed, which did you do?
A.  I went in a hurry to see what was the trouble, I don't know whether I was running or not.
Q.  How came you to think there was going to be any trouble?
A.  Because I had heard what I did.
Q.  You hadn't seen Butt then had you?
A.  No sir.
Q.  What kind of trouble were you looking for?
A.  I didn't know what, I wasn't looking particularly, I had heard how they had been getting along.
Q.  You say you thought there was going to be trouble?
A.  Of course when I heard what I did.
Q.  What trouble were you expecting?
A.  I didn't know, I told you.
Q.  You said you heard how they had been getting along, how who had been getting along?
A.  Mr. Hester and Mr. Butt.
Q.  You were looking for trouble between Mr. Hester and Mr. Butt?
A.  After I heard him say what I did I was.
Q.  After you heard Mrs. Hester say that?
A.  And what he said too.
Q.  Did you hear what he said before he started running or walking up there?
A.  Just as he stepped off the porch I ran up there.
Q.  Did you start before or after he stepped off?
A.  I started before he stepped off.
Q.  Where was he when you got there?
A.  He was going across, walking along the street.
Q.  Didn't you say just now just now that when you got up there in that corner to this fence that Mr. Hester was standing on his gallery about half way from the step to the door?
A.  I said when I went out and heard Mrs. Hester I looked around and she was standing back there towards the swing and he was standing about half way is what I said.
Q.  Could you see Mr. Hester from where you were out there near your wood shed?
A.  No sir I couldn't see him right then, but before I got up to the corner of the yard I seen him.
Q.  How did you see him?
A.  I seen him step off the porch.
Q.  Didn't you say just now that when you first saw him up there in the corner that he was midway between his steps on his front gallery and his front door in front of the door?
A.  I said when I stepped out there Mrs. Hester was standing back there towards her swing and Mr. Hester was standing about half way.
Q.  You said you couldn't see Mr. Hester when you stepped out there, how do you know where he was standing if you couldn't see him?
A.  As quick as I heard her talking like she did I rushed to that fence.
Q.  Let us get back, you said Mrs. Hester was standing out there when you got out there and you heard Mrs. Hester say that?

BY MR. BASS
Don't argue with the witness, just ask the questions.

A.  I don't suppose we will fight, I won't.
Q.  I want to get this straight, you said when you got out there and heard Mrs. Hester that you couldn't see Mr. Hester?
A.  Well, I couldn't until I started up there.
Q.  Now Mrs. Mays let's go back, didn't you state that when you got out there about as far from you to that railing from your back gallery going to get your apples in the wood shed that you heard Mrs. Hester make that remark and you stopped and looked up and saw Mrs. Hester but you couldn't see Mr. Hester, is that right?  Just answer is that right?
A.  Yes sir but I know I just went on and I hadn't made but a step or two until I could see him.
Q.  You hadn't made but a step or two?
A.  No sir, until that threw me in a position where I could see him.
Q.  You took a step or two and you could see Mr. Hester?
A.  I kept going.
Q.  Where was Mr. Hester when you took that step or two?
A.  He was standing there on his front porch.
Q.  When you got into the corner where was he?
A.  He stepped off of the porch and stepping across the street.
Q.  Had he made his remark before you took the step or two or after?
A.  He made it as he went off the porch, as he stepped off.
Q.  Was he out on his front pavement when he made the remark?
A.  He was stepping off like I was going to step down there and he made the remark as he stepped off.
Q.  Then it was that you looked down and saw Mr. Butt?
A.  Yes sir I seen Mr. Butt.
Q.  And Mr. Hester was just stepping off of his porch?
A.  He stepped off and went on across.
Q.  I saw, then it was Mr. Hester stepped off of his porch you looked down and saw Mr. Butt below the telephone post near his gate?
A.  I reckon, I don't know how far it was, I wouldn't say that.
Q.  But you saw him at that time?
A.  Yes sir I seen him.
Q.  And when you first saw Mr. Butt Mr. Hester was stepping off of his porch?
A.  No sir I never said it that way.
Q.  Let us see what you did say?
A.  I said Mr. Hester stepped off his porch and stepped across the street and then I looked down and seen Mr. Butt coming up.
Q.  You didn't look down until you saw Mr. Hester over there in front of the McGuires?
A.  I don't suppose I did, I never seen him if I did until he made his remark and stepped out and then I looked to see who he was going to settle with.
Q.  When you got in this corner you looked down to see who he was going to settle with?
A.  Yes sir.
Q.  Who did you see?
A.  I saw Mr. Butt.
Q.  That is what I am getting at, it was at that time that Mr. Hester was walking out from his porch to the street?
A.  He hadn't got off his porch, he stepped out and said I will settle with him and when he said that I looked down the walk and seen Mr. Butt and I supposed that he was the one that he was going to settle with.
Q.  That is what I want to get at, when he said, I am going to settle with him, you looked and saw Butt, and when Hester said that he stepped down off of his porch did he, he didn't say that over at McGuire's pavement?
A.  No sir he said it as he stepped off and when he was going across over I looked and seen Mr. Butt and I supposed by that I guess he is the one he is going to settle with.  I didn't see any one else.
Q.  What sort of fence is there between Mr. Hester's and yourself?
A.  It is a paling fence, just a little--oh, I don't know, I don't suppose it is any higher than that (Indicating) might not be that high, that has a little plank at the bottom and little palings.

RE-DIRECT EXAMINATION
By Mr. Bass

Q.  About those shots, I believe you stated to Mr. Seay that you heard the shots, is that right?
A.  Yes sir I heard it, sure I did.
Q.  And you heard two pistols shooting?
A.  Yes sir.
Q.  Which pistol did you say sounded first?
A.  Well, the little one, it sounded just a little report.
Q.  How did you say that pistol sounded, like what?
A.  Like a target.
Q.  How many shots did you hear from that one that sounded like a target before you heard the big one?
A.  I don't know I told you, I won't say for I don't know.
Q.  Just about how many?
A.  I won't say for certain.
Q.  Two, three, four or five before the other began at all?
A.  Four or five, something like that.  I never counted them, I don't know.
Q.  How many did you hear the other one shoot?
A.  I don't know that either, there was two or three.
Q.  Were they mixed up after that, both of them shooting?
A.  Yes sir they seemed to be.
Further this deponent saith not.

MRS. EDNA HESTER
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
by Mr. Bass
Q.  Is this Mrs. Hester?
A.  Yes sir.
Q.  Mrs. Hester, were you the wife of Al Hester?
A.  Yes sir.
Q.  How long were you married Mrs. Hester?
A.  September 1896 or 1895, about nineteen or twenty years.
Q.  Where did you live when you married?
A.  Portland, Tennessee
Q.  With whom did you live?
A.  Professor Z. E. Griffith.
Q.  Are your father and mother or any of your people living?
Objected to and overruled.
Q.  Were your father and mother and your people living?
A.  No one only my brother.
Q.  Do you know the defendant Virgil Butt?
A.  Yes sir.
Q.  How long have you know him?
A.  About twenty years.
Q.  Did you go to school with him when you were boys and girls?
A.  Yes sir.
Q.  Have you lived in Portland ever since you were married?
A.  Yes sir.
Q.  Mrs. Hester, I will ask you if at any time or at any place you ever had any improper or illicit relations with Virgil Butt?
A.  No sir.
Q.  Were you every guilty of any conduct of that kind with any man?
A.  No sir only my husband, I had no relations towards any man only my husband in any way.
Q.  Did you ever meet Virgil Butt in his barn?
A.  No sir I was never in his barn in my life.
Q.  Did you ever have occasion to go from High Street near where you lived across over to Russell Street to see any one, in which you would pass near the barn of Mr. Butt?
A.  I passed through that way, yes sir.
Q.  Who did you go over there to see and for what purpose did you go?
A.  Mrs. Durham a widow lady and her daughter.
Q.  She was a very old widow who was an invalid and in needy circumstances?
A.  Yes sir.
Q.  What was your relation with this old lady Mrs. Durham?
A.  She had almost taken the place of a mother with me, she had been with me in several spells of sickness.
Q.  She was with you when your children were born?
A.  Yes sir she was with me at my bedside day after day, nursed me the same as a mother would and I felt that it was my duty to go to her.
Q.  What were you doing going over to her?
A.  Carrying her meals.
Q.  How did you go?
A.  Through Mr. Kerley's yard gate.
Q.  Did you go that way without climbing fences?
A.  Yes sir, where other ladies went, other ladies went the same way.
Q.  Did you ever go to Mr. Butt's barn in your life time?
A.  No sir.
Q.  Did you ever stop and talk to him near that barn?
A.  I may have on the street, I don't think I ever stopped and talked to him.  I may have spoken to him in passing, I may have seen him, I don't say that I did or didn't.
Q.  Mrs. Hester, up until the time that these reports became current around Portland what was the relation between your family and the family of Mr. Butt?
A.  We were friendly and visited each other and the children visited each other and so did we, both families visited to each home.
Q.  Who first started these reports with reference to you and Mr. Butt there in Portland?
A.  Mr. Finn's people so far as I know, that is where I first heard it.
Q.  Had there been any trouble between your family or any unpleasantness between your family and the family if Mr. Butt up until these reports first started and originated, as you say, had there been any unpleasantness between the two families?
A.  No, not that I know of.
Q.  Did Mr. Butt ever come to your house on any occasion when Mr. Hester was not at home, if so how often?
A.  Yes sir he came to my home.
Q.  About how many times would you say?
A.  He came two or three times.
Q.  Was he ever there at night when Mr. Hester was not there?
A.  No sir.
Q.  Did he ever crawl in the back way or run in the back way or run out the back way in the day time or any time that you saw?
A.  If he did I didn't see him.
Q.  When he was there on these occasions that you mentioned, I will ask you if you and Mr. Butt were guilty of any improper or illicit conduct?
A.  No sir, he was a gentleman and I was a lady, and I have always been all my life, tried to be the best I could.
Q.  I will ask you if you ever met Mr. Butt out there in your stable in the rear of your house?
A.  No sir.
Q.  I will ask you if you ever passed him or handed him any letters through the garden fence from the alley or anything of that kind?
A.  No sir I have not.
Q.  I will ask you if you ever passed him any letter or he ever passed you any letter up town on the streets of Portland?
A.  No sir.
Q.  I will ask you if you were accused on one occasion of Mr. Butt passing you a letter and you attempted to receive the letter from him on the street at Portland when Mr. Seay, the minister saw it?
A.  Yes sir I was accused of it.
Q.  Did you do that or not?
A.  No sir I did not.
Q.  Did you ever see Mr. Butt going through the alley in the year of your premises?
A.  Yes sir I have seen him go through there.
Q.  Did you ever talk to him any when he was in the alley?
A.  Yes sir I have talked to him.
Q.  Where were you and where was he at the time?
A.  I have been on my porch or in the garden and have seen him pass, I don't know exactly where, different places.
Q.  Did you ever see him in that alley at night?
A.  No sir I never.
Q.  I will ask you if he ever made any signals to you there standing at his gate or at any other place?
A.  I never considered it so.
Q.  Did you ever see anything that you thought were signals to you or understood to be signals to you?
A.  No sir not to me if it was to any one, I can't tell anything about that.
Q.  Did you ever make any signals to him in that way?
A.  No sir.
Q.  Now Mrs. Hester, I am going to ask you about what happened immediately before the shooting at your house, what time did your husband come to the house that morning before the shooting started?
A.  About eight o'clock I suppose, I don't know about that, I don't think it was over eight o'clock before he went to the poultry house because we didn't get up until about seven.
Q.  Did he come back later?
A.  Yes sir.
Q.  How long had he been there before the shooting occurred?
A.  He must have come back about eight thirty or nearly nine, he was there fifteen or twenty minutes I guess.
Q.  When he came in did he take his position at any particular place in the house if so where?
A.  He sat down by the side window there, it was cool there and he sat down there.
Q.  On which side?
A.  On the side next to town.
Q.  Of which room?
A.  The family room.
Q.  Where is that room?
A.  On the west side.
Q.  I understand but how far from the front or rear?
A.  The front room next to the street.
Q.  I will ask you if after that you and Mr. Hester went out on the front porch?  Did you or not, I am talking about before the shooting, were you out on the front porch?
A.  Yes sir.
Q.  Did or not he start away from the house to go back to town and if so how far did he go?
A.  He started back to town and got nearly half way across between the walk in front of the yard.
Q.  You mean leading from the door to the street, the sidewalk?
A.  Yes sir.
Q.  What did he do then?
A.  He turned and came back to the porch and sat down.
Q.  Did he say anything to you about having seen any body when he walked out there that caused him to turn around and come back, if so, who did he say he saw, just tell it?
A.  He said--
Q.  Just tell it, who he said he saw?
A.  Well, he started and he came back and I asked him why he came back and he said because I have seen that party, he didn't say that, he used a bad word that I don't care to use, he said, I see he has started up this way again, I want to sit down and wait until he comes, I want to meet him, and that was all that was said right then, I told him that I didn't see any one.
Q.  You told him that you didn't see any one?
A.  Yes sir.
Q.  What did he say do?
A.  He told me to go to the edge of the porch and look down the road and I would see why he came back.
Q.  Did you look?
A.  Yes sir.
Q.  Who did you see?
A.  I saw Mr. Butt standing in front of Mr. Finn's shop.
Q.  Later did Mr. Butt start up the street?
A.  Yes sir.
Q.  Now if your husband started any where or said he was going any where and gave any reason why he was going just tell what he said?  Just tell what he said?
A.  Repeat that over?
Q.  I say, when you saw Mr. Butt coming up the street if your husband stated that he was going to do anything tell what he stated he was going to do?
A.  Well, he just made this statement, that there was some man went down there, had been down there to the poultry house and told him that Mr. Butt had made five or six trips from home and back home that morning and he came back to see exactly what the situation was.
Q.  What did he say he was going to do?
A.  He said he was going over there to stop him from coming up that walk.
Q.  Did he say anything about it was the last time he would come up that walk?

Objected to leading.

Q.  What did he say, anything about that trip up the walk by Mr. Butt?
A.  Well he said that he had decided for him to stop coming up the walk, that it was his last time to come, he had to put a stop to it some way or other.
Q.  That it was the last time he was coming?
A.  Yes sir.
Q.  What did you say to him then when he said that?
A.  I begged him not to go.
Q.  What did you say to him?
A.  I told him to stay there with me, if it had to be wait until some other time, not to go alone and unprotected to wait if that was his decision.
Q.  How many times did you beg him not to go?
A.  I pleaded with him as long as I could until he was killed, I reckon as long as I knew anything or could do anything.
Q.  When he started out which way did he go?
A.  He started out straight and went across the street.
Q.  Did you see the shooting?
A.  No I didn't see the shooting.
Q.  Were you out there when the shooting took place?
A.  No sir I was standing at the door.
Q.  Where did you go?
A.  I ran after my little girl and the cook to go with me over there, I thought they were aiming to have a fight over in the lot and I wanted them to go with me.
Q.  Where was the cook and the little girl?
A.  The little girl had gone around the house after some flowers and the cook was in the kitchen.
Q.  Which way did you run after them?
A.  I went through the hall.
Q.  Where were you when the shooting took place?
A.  I just reached the kitchen door the first pistol I heard fired, that was the only one I ever heard.
Q.  Had you seen Mr. Butt that morning up until that time?
A.  I don't know that I had, I believe I saw him coming in and out the gate once.
Q.  Did you speak to him?
A.  No sir I was busy cleaning up and I went out on the porch after my rug and just as I raised up with the rug I saw him coming in and out the gate.
Q.  Did he speak to you?
A.  Not that I know of.
Q.  Did he make any wave at you or make any signals to you that morning?
A.  Not that I know of.
Q.  Did he see you there so far as you know that morning?
A.  I don't guess he did, I don't know whether he did or not.  I never paid any attention to whether he did or not I don't know.
Q.  Mrs. Hester had you and Mr. Butt always been friendly since you went to school together?
A.  Why, yes sir.
Q.  Did he ever talk to you or advise with you about anything?
A.  We were always, we had been schoolmates and friends ever since I first moved to Portland, I always considered him a friend and nothing more.
Q.  When he came there to your house or at any time when you were at his house, did you ever talk with him about anything in particular, is so, what was it?
The State objected to any conversation with reference to any other matter unless it is with reference to this transaction.
BY THE COURT:  Yes I have determined that.  Objection sustained.

BY MR. BASS:  We want to get in the record what that was and, we don't think, in view of your Honor's ruling that we should state the grounds in the presence of the jury, and we therefore ask your Honor to let the jury retire.

BY THE COURT:   I have sustained the objection and the only question is to get it in the record.
THE JURY HERE RETIRED.

BY MR. BASS:
Q.  Now Mrs. Hester, what was it that you talked to Mr. Butt about and advised with him about?
A.  About our own troubles and different things.
Q.  What else?
A.  Well, different things concerning my home and trouble that I had had.
Q.  What trouble have you had?
A.  I have had plenty of it.
Q.  Well, what do you have reference to, just tell it?
A.  Well, I had trouble for awhile.
Q.  Just tell it?
A.  With another woman that broke up my home almost, at least I considered it.
Q.  What woman?
A.  Mrs. Goosetree, I suppose every body knew it, it went on long enough.
Q.  Was that generally known in Portland?
A.  I suppose it was.
Q.  State whether or not that relation between your husband and the Goosetree woman occurred before any of this talk about you and Mr. Butt.
A.  Why yes sir.

BY JUDGE ANDERSON:  If your Honor please, I don't want to argue the question, but just let me make a statement:  The question now comes in somewhat a different attitude that it did when Mr. Butt was on the stand, there we proposed to show may it please the Court, what he was going over there for so the jury might see whether or not he had a valid reason, but now, if your Honor please, the whole fight from the very inception of this lawsuit has been that Mr. Butt broke up and destroyed the home of Mr. Hester.

BY THE COURT:  We are not trying a case of infidelity, we are trying a murder case.

BY JUDGE ANDERSON:  I understand that, but this goes to the good faith of Mr. Hester.  It seems to me that we can show, as this witness has testified as a matter of fact that Hester's domestic home, his domestic felidity had been broken up, wrecked and destroyed before Butt ever came into his life.  May it please the Court we think this is competent evidence to go to the jury upon the good faith of Mr. Hester's actions.  I think the whole argument is going to be that he was actuated by that and not by some personal spite or malice against Mr. Butt.  We submit in that view the evidence is competent.

BY THE COURT:  Let the objection be sustained, call in the jury.  Defendant Excepted.

THE JURY HERE RETURNED INTO COURT.

CROSS EXAMINATION
By Mr. Seay for the State:
Q.  Mrs. Hester, you say that you and Mr. Hester were married in September 1896 and you lived together--
A.  I don't say that is exactly positively the date, but we have been married about twenty years or nineteen, not more than eighteen or nineteen years, our eldest boy is seventeen years old.
Q.  Do you remember the date of your marriage?
A.  I think it was in September 1895, I think was when it was.  (*Note - From the Sumner County Marriage Index - Edna E. Chisholm and Alfred Hester were married September 21, 1895, jb)
Q.  And you say that during all your married life you have known V. R. Butt?
A.  Yes sir.
Q.  You had known him about twenty years you say?
A.  Yes sir, I was about fourteen or fifteen, I don't know exactly, just about that age when we moved to Portland, and he was one of the first boys and girls, we were at school together.
Q.  What is your age now?
A.  Thirty six.
Q.  You are thirty six now?
A.  Yes sir.
Q.  You knew him at school?
A.  Yes sir.
Q.  Did he visit you when you were a young lady?
A.  I don't know, he may have been with me some.
Q.  Now Mrs. Hester, how long did you live at your present residence?
A.  Where I am now?
Q.  Yes.
A.  About six or seven years I suppose.
Q.  You are living now where you were living at the time of Mr. Hester's death are you?
A.  Yes sir.
Q.  You have not changed your place of residence?
A.  No.
Q.  How long has Mr. Butt been living at his present place of residence, there where his family resides?
A.  Well, I don't know, he was living there when we moved from the farm to the home where we are living now.  I don't know when he built his home there, I don't know anything about that.
Q.  How long had you and Mr. Butt been confidential friends?
A.  I suppose we were kind of grown that way, ever since we were schoolmates at school just as any one would be.
Q.  You have been confidential friends since you were school mates?
A.  I say I guess that is when it came, you know, young people together and school mates.
Q.  You say Mr. Butt came to your house some two or three times when your husband was away?
A.  Yes sir.
Q.  When was the first time he came?
A.  Well, I don't know, it was in the year of 1913, I think in the summer or spring, I don't remember, or sometime during that year.
Q.  Then when did he next come?
A.  I don't know, I don't remember, sometime during that time, that was all.
Q.  When was the last time he was there when your husband was away?
A.  I don't know.
Q.  How long before your husband was killed by Mr. Butt?
A.  What do you mean by that, do you ask me a question how long?
Q.  How long since Mr. Butt was in your home with you when your husband was away, how long before your husband was killed?
A.  He never was with me at my home alone except those evenings that I told you just now.
A.  I say, how long was the last time that he was there before your husband was killed?
A.  Well, I don't know.
Q.  Can you give us an idea, was it a month?
A.  He hadn't been there at all that I know of.
Q.  Mr. Butt hadn't been at all in your home when your husband was away?
A.  No sir.
Q.  Didn't you tell Mr. Bass that he had made two or three trips there when your husband was away?
A.  Yes sir I did and just now told you so.
Q.  When was the last trip he made when your husband was away?
A.  In the summer of 1913 sometime.
Q.  In what month?
A.  I don't know.
Q.  How long apart were those visits?
A.  I don't know that, I didn't put down any memorandum of it, I didn't think it would be of any use or service to me, I didn't keep any account of it at all.
Q.  Was it as much as two weeks apart?
A.  I don't know.
Q.  As much as a month apart?
A.  I don't know that either.
Q.  As much as two months apart?
A.  Sometimes at different times he came in.
Q.  How many different times?
A.  Not over two or three.
Q.  Did he come in the night time or in the day time?
A.  He came in the day time.
Q.  Always in the day time?
A.  Yes sir all that I saw him.
Q.  Did he come in the front way or the back way?
A.  He came in the back way two or three times and the front way, but the back way is more public that the front way.
Q.  You say he came in the back way two or three times?
A.  Yes sir, and he came to the front door and didn't come in.
Q.  How many times?
A.  Only once.
Q.  Was your husband there then?
A.  No sir he came to see my husband and myself.
Q.  Your husband wasn't there and he didn't come in?
A.  No sir.
Q.  Why did he come in the back way?
A.  He wanted to see me and talk together.
Q.  Couldn't he have seen you if he came in the front way?
A.  I guess he could, he was over on that side of the street.
Q.  How do you know he was?
A.  He had a pasture back of our home.
Q.  Did you see him before he came in?
A.  I don't know that I did.
Q.  Then you don't know where he was do you?
A.  No I do not.
Q.  Did you know he was coming?
A.  No I never knew he was coming.
Q.  He never notified you in advance when he intended to make his visits in the absence of your husband?
A.  No sir.
Q.  Did he knock when he came to the back door or come in without knocking?
A.  I don't know whether he did or not, he would be there in the back part.
Q.  You don't know even whether he knocked or not when your husband was away when he came into the rear of your premises?
A.  No he knew I was there, I didn't pay any attention to him.
Q.  Wouldn't he walk in and find you in the room, and wasn't that the first time you would know that he was about?
A.  He would walk into the hall.
Q.  Walk into the hall and then into the room?
A.  No not into my room, we would sit in the back hall and talk.
Q.  How long did he stay the first time?
A.  I don't know, I never looked to see.
Q.  Did he stay as much as two hours?
A.  No sir.
Q.  As much as an hour and a half?
A.  I can't tell you.
Q.  You don't know whether he stayed as much as an hour and a half or not?
A.  No I didn't think anything about it.
Q.  You don't know how long he was there?
A.  No sir.
Q.  Where was your husband the first time he came?
A.  I don't know.
Q.  How long did he stay the second time he came?
A.  I don't know.
Q.  Did he stay as much as an hour?
A.  I don't know.
Q.  As much as an hour and a half?
A.  I don't know, I didn't put down any time, I didn't think of the time and I never noticed it.
Q.  How long did he stay the third time?
A.  I don't know.
Q.  You don't know whether he stayed an hour or an hour and a half or two hours then?
A.  No sir, the time piece wasn't in the room.
Q.  When was it that this scandal with reference to you and Mr. Butt began to be talked of in Portland.
A.  The first I heard was Mr. Finns' down there stated it.
Q.  When was that?
A.  I don't know exactly when it was, it was in the year 1913.
Q.  Was it before or after these visits of Mr. Butt to you?
A.  It was before.
Q.  You know that there was a scandal abroad in the village of Portland about you and Mr. Butt before you permitted him to come and make you these secret visits, didn't you?
A.  I didn't know very much about it.
Q.  You knew that report and that scandal was abroad?
A.  I knew some of them were talking, I didn't know.
Q.  You knew your relations and his relations was being discussed, didn't you?
A.  Yes.
Q.  And notwithstanding that you let him come without remonstrance, didn't you?
A.  He came and I told him he oughtn't come, it might cause people to talk more.
Q.  You let him come?
A.  How could I help it?
Q.  You mean to tell this jury that you couldn't help his coming back?
A.  Of course I reckon I could have used some way, but I didn't know he was coming back.
Q.  You could have used some way to have stopped him couldn't you?
A.  If I had know it I might have.
Q.  Now Mrs. Hester, when was it that you had the conversation with Mr. Butt back in the alley?
A.  I don't know when it was.
Q.  Was it after these visits to you in your home?
A.  I don't know.
Q.  Was it in the fall of 1913 or in the spring of 1914?
A.  I don't know which it was, it might have been both for all I know.
Q.  It might have been both, wasn't it both?
A.  I don't know, I say it might have been for all I remember of it.
Q.  As a matter of fact, didn't it continue up until a short time before Mr. Hester was killed?
A.  No sir it didn't.
Q.  When was the last time you talked to him privately back there in the alley?
A.  I don't know, it had been a year or over a year I guess.
Q.  Before your husband was killed?
A.  Yes sir.
Q.  Didn't you say just now it was in the spring or might have been in the spring of 1914 and the fall of 1913 both that you had those conversations with him back there?
A.  Well, I don't know.
Q.  Didn't you say that?
A.  I don't know whether I did or not, I know it was in the spring or fall of 1913, I don't suppose it was in 1914 at all because I wouldn't speak to him.
Q.  How is that?
A.  I wasn't allowed to speak to him if I could be kept from it, I didn't try to meet him any place and didn't try to speak to him any place.
Q.  You were not allowed, what do you mean by that?
A.  About meeting him on the streets and places of that kind in public.
Q.  Did you speak to him during the spring of 1913 or the spring of 1914?
A.  Sometimes I did and sometimes I didn't, I didn't put them down.
Q.  When was it you had the interview when you were in the garden and he was in the alley?
A.  I guess it was in 1913 sometime.
Q.  What time of the year?
A.  It was during the spring, summer or fall.
Q.  You can't come any nearer to it than that it was during the spring, summer or fall?
A.  No, that is as near as I can come.
Q.  Do you mean to say that you never went out to your barn when Mr. Butt was out there?
A.  I certainly do.
Q.  Do you know Mrs. Clarence Kerley?
A.  I do.
Q.  Is she friendly with you?
A.  I don't now whether she is or not, she has been, she speaks to me at times, I haven't pushed myself on any of them to try to see whether they were friendly or not.
Q.  You have not pushed yourself on any of them?
A.  No I am not that kind.
Q.  Do you know Mrs. J. E. Kerley?
A.  Yes sir.
Q.  And Mr. J. E. Kerley?
A.  Yes sir.
Q.  Have your relations with them been friendly at all times?
A.  I don't now whether they have or not.
Q.  Do you know anything to the contrary?
A.  Nothing only this scandal they have started up and helping to cause.
Q.  Do you know Eldon McGuire and Mrs. Eldon McGuire?
A.  Yes sir.
Q.  And Rev. H. W. Seay?
A.  Yes sir.
Q.  He is your minister isn't he?
A.  Yes sir.
Q.  Do you know Mrs. Booker?
A.  Yes sir.
Q.  Do you know Mrs. Fred Morris?
A.  Yes sir.
Q.  Are your relations and theirs always friendly?
A.  I don't  know that they have ever been unfriendly, they always treated me nicely and I have treated them like neighbors, of course at times I felt that they pushed me away from them and thinking I wasn't the equal of them but I have held up my head and tried to fight my way through, I feel like some day they will know.
Q.  You say Mr. Butt was always a gentleman?
A.  He was always a gentleman in my presence.
Q.  You still regard him as a gentleman?

Objected to and sustained.

Q.  You say you have always been friends?
A.  Yes sir.
Q.  You are still friends?
A.  I didn't say anything about that.
Q.  Are you still friends?
A.  I try to be the best I can, I try to treat every body right.
Q.  Are you still friends?  Are you still friendly with Mr. Butt?
A.  I don't know, I never see him or speak to him, I don't suppose there is much friendliness.
Q.  You can answer the question can't you Mrs. Hester whether you are still friendly with Mr. Butt?
A.  I don't know that I can.
Q.  What is that?
A.  I don't know whether I can or not.
Q.  You don't know whether you are friendly with him now or not, is that what you mean to say?
A.  I am not having anything to do with him at all.
Q.  My question is, do you know whether you are still friendly with him or not?
A.  No I don't' know.
Q.  For whom are you wearing mourning Mrs. Hester?
A.  I am wearing it for my husband, I am not in deep mourning.
Q.  And haven't been in deep mourning have you?
A.  No sir.
Q.  And won't be in deep mourning, will you?
A.  I don't think I will wear it altogether.
Q.  Did you see Mr. Butt attempt to pass you a letter down at the corner near the printing office?
A.  No I didn't see him.
Q.  Did you see him drop a paper there?
A.  No I didn't see him do that.
Q.  What did you see on that occasion?
A.  I don't know that I saw anything except I saw him and spoke to him and came on home.
Q.  Did you see Brother Seay on that occasion any where near?
A.  No I didn't see him but I have a very good idea as to where he was, I have heard him tell where he was and all about the occasion.
Q.  After you passed did you stop then and talk to him?
A.  We met on the street and he was coming to town and I was going home, I had bundles in my hands, we passed by and I spoke to him and he spoke to me, I think he said something and I kind of turned my head and asked him what he said and he had a little paper in his hand and dropped it on the street, there was none passed.
Q.  Did you see the note as it fell from his hand?
A.  No sir, he was to my back.
Q.  Did you see him pick up the paper?
A.  No sir I didn't look to see but I heard Brother Seay say that he did do it.
Q.  How often did you notice Mr. Butt during the day going in and out of his gate in the rear of the premises?
A.  I don't know, I had something else to do, I did my own cooking and cleaning up and I had something else to do besides looking after Mr. Butt.
Q.  You saw him going in and out?
A.  Yes sir, I didn't pay any attention to him.
Q.  It was several times a day?
A.  I guess it was, I didn't pay any attention.
Q.  Did you see him put his hat back on his head?
A.  Yes sir I have seen it.
Q.  Did you see him rub his hands over his face?
A.  He might have put his hands up to his face.
Q.  Did you see him do that?
A.  Yes sir I have seen him put his hands up to his face and push his hat back.
Q.  Did you ever see him reach in and pull up a letter from inside of his coat?
A.  No sir.
Q.  Did you ever see him adjust his coat?
A.  I don't know, I may have seen him do anything you mention of that kind of movements, but I didn't pay any attention to it.
Q.  How come you to see those things?
A.  Because they were always going on to me so much I was noticing to see if I could see anything.
Q.  Who was going on so much?
A.  My home people besides outsiders.
Q.  You were noticing to see what he would do at the gate?
A.  They kept talking about it and I thought I would see if he did do anything.
Q.  That is why you looked?
A.  Yes sir.
Q.  He would do those things when he would get to that gate?
A.  I don't know as he would do it every time, I have seen him go through lots of times and he didn't make a movement.
Q.  Do you know of any reason why his hat needed adjusting?
A.  No sir.
Q.  Do you know why his face had to massaged?
A.  No I never asked him.
Q.  Do you mean to say that he never threw any kisses at you from that gate?
A.  I certainly do say so.
Q.  Did you ever make any signs back at him?
A.  No sir I did not.
Q.  Never from the window?
A.  No sir, I sat at my window, I never did deprive myself of my pleasures at home, I sat there and outsiders said I sat there to see this man, but I didn't, I sat there because it was a pleasant place.
Q.  I will ask you in the fall of 1913 or in the spring of 1914, if you were not at the window making signs and signals to Mr. Butt and Mr. Kerley came out and you jumped back?
A.  I don't remember doing that.
Q.  Do you say you didn't?
A.  I never ran from any body.
Q.  Do you say you didn't?
A.  I don't know, I couldn't sit down at the window and sew or read a book but what they would say I was making signs at Mr. Butt, I couldn't go to the front porch and I couldn't go to town, every thing I did was a sign.
Q.  Do you remember on one occasion that your husband caught Mr. Butt under the house?
A.  Yes sir I remember it.
Q.  Did you see Mr. Butt on that occasion?
A.  Yes sir I saw him.
Q.  Where was he?
A.  He was out in the back yard.
Q.  Did you see him when he was under the house?
A.  No sir.
Q.  Did you go out?
A.  Yes, not until I was called though.
Q.  Did you say in the presence of your son Robert Hester upon that occasion, when your husband told Butt that he ought to kill him, and Butt begged him not to kill him, and Butt said he would give him his hand that he would stay away from his premises and not bother you any more, didn't you say to Al Hester, if you kill Butt kill me too?
A.  I don't know whether I did or not I was so scared, I don't know what I did say, but I think the way I did say it was, oh my, don't kill him here, and they told that I said the other, I won't deny that I didn't say it but I won't swear that I did say it.
Q.  You won't deny it?
A.  I think they made it and told it on me, they would tell anything, one would tell it and the other would sign it.
Q.  You won't deny that that is what you said on that occasion?
A.  I don't say I did say it and I don't say that I didn't, I think I told him I hate to see any one killed at my door, I said, oh my, don't kill him, but they said I said the other, it has been thrown in my face that I did, I don't know whether I did or not, I was so scared I don't remember it, I may have said it.
Q.  Now you say the morning that your husband was killed he came home between eight and eight thirty?
A.  I suppose that was the time, I don't remember, that is the best that I recall it.
Q.  Between eight and eight thirty, how long did he stay there?
A.  Fifteen or twenty minutes or may be twenty five.
Q.  He stayed there until he left at the time he was killed?
A.  You mean from the time he went to the poultry house and then came back?
Q.  I mean the time he came back about eight or eight thirty?
A.  Yes sir.
Q.  He didn't leave home any more then until the time he went down and the difficulty occurred in which he was killed?
A.  No sir.
Q.  He stayed there then from that time until he left to go down the street at the time of the difficulty?
A.  Yes sir.
Q.  You say that you were out on the front porch?
A.  Yes, I was out on the front porch but Mr. Hester wasn't out there.
Q.  Where was Mr. Hester when you went out on the front porch?
A.  I went out first and he stayed in our family room before he left to go to town and we talked about friendly matters and of home, things of that kind.
Q.  Had you been away previous to that time?
A.  Yes sir.
Q.  Where had you been?
A.  To Jackson.
Q.  How long had you been in Jackson?
A.  Nine days.
Q.  When did you return?
A.  The night before.
Q.  Did your husband meet you any where?
A.  He met me in Nashville.
Q.  And came home with you?
A.  Yes sir.
Q.  And he came back then next morning and stayed as you say and he went out on the porch and you went out on the porch?
A.  Yes sir.
Q.  And then what happened?
A.  Mary, the little girl was sitting on the porch and he went out on the porch and asked me where the girls were, one was over at Mrs. Green's, the least one, and the other was out on the porch, and he asked Mary about her music and told her that he wanted her to practice, so I went out on the porch to the settee.  He said he would water my flowers for me while I was gone and help me about my things, all very friendly, there was no trouble expected at all.  He told Mary to get the other flowers and she went to get the flowers and he started to town.  I told him to send me some ice and my trunk, and he got half way down the walk in front of our own house and turned and came back to the house and came up on the porch and sat down on the settee.  I started in the house and I turned and went back and asked him what was the matter and he said nothing at all.  He said I see that person coming up the road.
Q.  See that person coming up the road?
A.  That wasn't the word he used, it was a word I don't care to use.
Q.  He said he saw him coming up the road?
A.  Yes, he saw him coming up the road and was going to sit down there and wait for him until he came to his gate.
Q.  Did you see him coming up the road?
A.  Yes sir.
Q.  Where was he coming up the road when you saw him, was he on the sidewalk next to his place?
A.  Who, Mr. Hester?
Q.  The man you say your husband referred to?
A.  I couldn't see him when he came back and sat on the porch and started again, I couldn't see him, and I said Mr. Hester, there is no one on the road at all.  He said you step to the edge of the porch and you can see.  I walked to the edge of the porch, he had me do it and Mr. Butt was standing in front of the blacksmith shop, seemed to be whittling, doing something with his hand.
Q.  Who was there?
A.  I don't know.
Q.  Was there any one beside Mr. Butt?
A.  I guess there was, I couldn't see any one but him.
Q.  He was standing there all alone whittling?
A.  He was looking towards the blacksmith shop seemed to be talking to some one.
Q.  How long did he stay there?
A.  A few minutes, about a minute or two.
Q.  Did you ever see any body down that way except Butt?
A. I never went back to look, I spent my time with Mr. Hester trying to find out what he was going to do and trying to keep him from doing anything.
Q.  You were interested in anything that Mr. Hester was going to do?
A.  I was interested in what he was doing and saying there at home and trying to keep him at home with me.
Q.  You say you were interested trying to find out what he was going to do?
A.  I think I have answered that.
Q.  That is what you stated?
A.  I didn't state it that way, I say I was at home trying to get him to stay there with me.
Q.  Didn't you say that you were trying to find out what he was going to do?
A.  No sir I didn't.
Q.  Now what then happened?
A.  I don't know when you are talking about, what time?
Q.  When you say you looked and saw Mr. Butt down talking in front of Finns shop?
A.  I turned around and came back and said that is all right I see who is standing there, but don't you go down there.  When he came back on the porch he said I am going to meet him and tell him this is his last time to come up this way, he has got to stop coming up this way, I am not going to put up with it any longer.
Q.  Butt wasn't in sight then?
A.  Yes sir he was in sight, he was down in front of Finn's shop.
Q.  He wasn't going up there then?
A.  When?
Q.  When you turned and left?
A.  When I turned around where?
Q.  After you went to the edge of the gallery and looked out?
A.  No he hadn't started up then, he was standing there in front of the shop and I turned and talked to Mr. Hester who was on the settee.
Q.  He hadn't started up that way?
A.  No he hadn't started.
Q.  He was inside of this little place here, this represents the blacksmith shop, it sits off there fifty or sixty feet from the street?
A.  That is where he was standing, in front of the blacksmith shop.
Q.  He was standing where the walk ought to be?
A.  Yes sir.
Q.  Down here?
A.  That is where I thought he was standing.
Q.  He was looking towards the black smith shop?
A.  Yes sir.
Q.  And yet you say Mr. Hester said that he shouldn't come up this way any more?
A.  He said he was going to sit down on the porch and wait that he had started up to make another trip up the walk through his gate.  He was going to wait until he come and if he did come he was going over there and tell him he had it to stop, he said it was his last time, he had put up with it and contended with it as long as he was going to and he had it to stop.
Q.  And he was going over there and tell him he had it to stop, is that all he said?
A.  I don't know that that is all he said.
Q.  Is that all that you remember that he said, this is his last time, he was going over there and tell him to stop?
A.  I don't know that it is.
Q.  Is that all?
A.  He said it had to be settled and ended one way or the other, his coming up that walk that morning.
Q.  Did you tell Mr. Bass that when he examined you?
A.  I don't know whether I did or not.
Q.  You didn't tell that in your original examination?
A.  I don't know whether I did or not.
Q.  Why didn't you?
A.  I don't know that he asked me.
Q.  Didn't he ask you to tell what Mr. Hester said and did you say one word about that Hester said, that your husband said, it will have to be settled that morning or stopped?
A.  The expression that I used seemed to be just the same.
Q.  Did you say that regardless of the expression you used?
A.  I don't know whether I did or not.
Q.  You then are not trying to give Mr. Hester's exact language, you are trying to give what it amounts to?
A.  No I am giving Mr. Hester's language as best I can.
Q.  Why didn't you tell that to Mr. Bass.
A.  I don't know, because I didn't want to.
Q.  Because you didn't want to?
A.  Not because I didn't want to, that is not it, I never was in a court house before in my life and I can't think of everything he said, he even said more than that but I can't remember everything he did say.
Q.  You have told all that you do remember now, Now Mrs. Hester, you know the Rev. H. W. Seay, don't you?
A.  I think I do.
Q.  He is your minister you say?
A.  Yes sir.
Q.  Did you send for him to come over there after Mr. Hester was killed that day?
A.  I don't know that I did.
Q.  You don't know that you sent for your minister?
A.  No.
Q.  He wasn't there the day your husband was killed in Portland?
A.  If he came I sent for him I don't remember.
Q.  Did he come over there the next morning?
A.  He came sometime.
Q.  Didn't he conduct the funeral services?
A.  You need not ask me very much that occurred for I don't know.
Q.  Didn't Mr. Seay conduct the funeral services?
A.  I don't know, they told me he did.
Q.  You don't know who conducted the funeral services?
A.  I said I wasn't there and I didn't see him conduct it.
Q.  You were not at your husband's funeral?
A.  No sir I wasn't able to go.
Q.  On the morning after Mr. Hester was killed didn't Mr. Seay come over to your place and into your room where you were?
A.  Yes sir.
Q.  And didn't you begin to cry and say Oh Brother Seay just to think he is lying in yonder dead when last night was the happiest night we ever spent together and this morning was the happiest breakfast we ever ate.  He met me in Nashville night before last and was so kind and pleasant and we settled all of our differences and had decided to sell out and move from Portland.  He told me how much he appreciated the letter I had written him and that he prized it very highly and still had it in his pocket?  I told him to go down town and get me some ice, that the cook had left some meat in the ice box and it had spoiled and that I had cleaned it up and wanted some ice so we could have some cold milk for dinner.  I went out on the porch with him.  As he started to go he looked up and saw Virgil Butt coming up the street and he said, that is the fourth or fifth time he has come up this way this morning.  I will go over there and ask him kindly not to come around about here bothering us any more, and as quick as I can wind up my affairs we will leave Portland.  I begged him not to do it for he might have trouble, he said, no he wouldn't, that he was going to ask him kindly, and then you broke down and cried and said, just to think he is dead?  Did that occur?
A.  Part of it, I guess it all did in some way, I don't know that it is worded exactly like he worded it, some of it, part of it.
Q.  What part of it?
A.  It wasn't correct about winding up his business and leaving Portland, we talked of making a trip to California, I don't know that that was mentioned, everything was pleasant at home, everything was pleasant the evening before it.
Q.  Is any of that incorrect except that part of it then?
A.  Well, it might not be exactly like I would tell it to you.
Q.  Didn't Mr. Hester say when he left there that he was going over there in a friendly kind of way?
A.  At first when he first sat out there on the porch I was so scared, and he said don't be worried, I will ask him in a nice way, that is what he said at first and the longer he sat there the madder he got and he got so I begged him not to do it, and the last word he said, he said it would have to be stopped.
Q.  Why didn't you tell Mr. Bass that his first suggestion was, or his first statement was that he would go over there, when he saw you were excited, he would go over there in a friendly way, you didn't tell Mr. Bass that did you?
A.  No sir.
Q.  Why didn't you tell me that when I asked you if that was all he said?
A.  When did you talk to me about it?
Q.  Didn't I talk to you a few minutes ago and ask you if you told all that he said?
A.  I told you that I couldn't remember everything that he said, and the exact words that he said, I couldn't, he said a great deal while he was sitting there on the porch, and I don't know whether I have told all of it yet or not.
Q.  He did say he was going over there in a friendly way and speak to him kindly about it?
A.  Yes sir he said that at first, but then he didn't say it on the last, all the way through.

Re-Direct Examination
By Mr. Bass

Q.  Mrs. Hester, when Dr. Seay came out to you that morning after your husband was killed and had this talk with you, did he have a stenographer along with him to take down what you said?  When Brother Seay came out and talked to you the next morning after your husband had been killed, or several mornings, did he have a stenographer to take down what you said?
A.  No he came in the bed room and sat down by the side of the bed.
Q.  Did he write it down as you said it?
A.  No sir.
Q.  Did Brother Seay, your pastor, tell you that he was having this conversation with you in order to try to get evidence to try to contradict you as a witness?
A.  No sir.
Q.  He didn't tell you that?
A.  No sir.
Q.  Mrs. Hester I believe you have stated that you have never had improper relations with any man?
A.  Yes sir.
Q.  Now you were asked by the State's attorney in his cross examination if you were not wearing just half mourning for your husband and you stated you were, did you not?
A.  Yes sir.
Q.  Had your husband always been true to you in his life time?

Objected to and sustained, defendant excepted.

BY JUDGE ANDERSON:
Will your Honor let us state the grounds on which we think it competent?

BY THE COURT:
No, it is a matter that I have ruled on.

BY JUDGE ANDERSON:
This is asked in the very best faith and we think it is due the Court--

BY THE COURT:
When the Court is not satisfied he ought to hear counsel but when the Court is it is a useless consumption of the public time gentlemen.
Defendant excepted to the ruling of the Court.

BY MR. BASS:
Q.  I want to ask another question and I don't want to be in the attitude of asking something--don't answer it until the Court passes on it.  I will ask you if your husband every struck you or mistreated you at any time?

Objected to and sustained.

BY THE COURT:
Gentlemen, that can't throw any light on the mental attitude of the two parties who were engaged in that conflict, that is the ground on which I excluded it.

BY JUDGE ANDERSON:
But the ground on which we offer it is the reflection on this lady because she is not wearing deep mourning for her husband, and if there is a reason for it we would like to show it.

BY THE COURT:
I don't think it is competent gentlemen.

Defendant excepted.
Further this deponent saith not.

  


State vs. Virgil Butt, Part II

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