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The State Vs. Virgil Butt
1915 - Part II

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 Butt, Wilda Butt, Eulalla Butt, and Wallace Butt

MRS. ELIZABETH BUTT
called for the defendant, being duly sworn, deposed as follows:

Direct Examination
By Mr. Bass:
Q.  Is this Mrs. Elizabeth Butt?
A.  Yes sir.
Q.  How old are you Mrs. Butt?
A.  I am seventy one.
Q.  Where do you live mam?
A.  At Portland, Tennessee.
Q.  How long have you lived in Portland?
A.  About thirty six years.
Q.  You are the mother of Virgil Butt aren't you?
A.  Yes sir.
Q.  Mrs. Butt you live right next door to Virgil I believe?
A.  Yes sir.
Q.  The first door west of Virgil's house?
A.  Yes sir.
Q.  Were you at home on the day of the shooting?
A.  Yes sir.
Q.  Where were you at the time the shooting took place Mrs. Butt?
A.  I was out in the potatoe patch.
Q.  Where was your potatoe patch?
A.  Well, it was joining our garden, what we call a truck garden.
Q.  Your garden joined Virgil's lot did it not, your garden was over next to the line fence between you and Virgil?
A.  Yes sir.
Q.  The potatoe patch came just west of that?
A.  Yes sir.
Q.  Were there any apple trees there in that truck patch or potatoe patch where you were?
A.  Yes sir there was two that blowed down.
Q.  Were they down then?
A.  Yes sir hadn't been down long.
Q.  I will ask you if the apples were still on it at the time?
A.  Yes sir the apples were still on it.
Q.  Where were you with reference to that blown down apple tree and your house at the time the shooting took place?
A.  Well I was about ten feet I reckon from the apple tree ten or twelve.
Q.  Were you between the apple tree and your house or not?
A.  Yes sir.
Q.  Was there any body else out there besides you?
A.  Yes sir, there was me and my son's daughter and two boys.
Q.  Do you mean Virgil's daughter?
A.  Yes sir.
Q.  What is her name?
A.  Wilda.
Q.  And then two boys?
A.  Yes sir.
Q.  Whose boys were they?
A.  One was Wallace Butt's son and one Selmer Butt's son.
Q.  All three were your grand children?
A.  Yes sir.
Q.  Do you know where Wilda was at the time of the shooting?
A.  Yes sir she was up on the apple tree, up on the body of it.
Q.  You knew Mr. Al Hester?
A.  Yes sir.
Q.  Did you see Virgil or Mr. Hester either one before the shooting commenced?
A.  No sir.
Q.  What first attracted your attention?
A.  What first attracted my attention when I was standing there?
Q.  Yes.
A.  Somebody said look yonder, I was standing facing north, I was a good way off, they were looking and I looked.
Q.  What did you see?
A.  I saw the shooting or heard the shooting.
Q.  Did you hear any shooting before you heard any body say look yonder?
A.  It was pretty near the same time.
Q.  Now how many shots did you hear do you think from beginning to end?
A.  I really can't tell you now, there was three shots.
Q.  The general shooting?
A.  Yes sir.
Q.  Was there any difference in the sound of those shots?
A.  Yes sir.
Q.  What was the difference in them?
A.  There was quite a lot of difference, you could tell, one sounded bing bing and the other bong bong something like that.
Q.  Which sounded bing bing?
A.  The first one that fired.
Q.  How many of those bing bing shots did you hear before you heard any bong bong shots?
A.  I think there was four, I know there was three.
Q.  You know there was three, do you mean those first three occurred first?
A.  Yes sir.
Q.  And then the bings and the bongs mixed up after that I believe you say?
A.  Yes sir.
Q.  When you looked up what did you see up there where the shots were coming from?
A.  I could see a little bit of smoke and see my son running.
Q.  Where was he running?
A.  He was running towards his barn, I reckon he was thirty five feet from his gate, I suppose he was, he was about a third across the lot.
Q.  Did you see any body else?
A.  No, I don't think I seen any body else.
Q.  You were standing on the ground between the house and the apple tree?
A.  yes sir.

CROSS EXAMINATION

By Mr. Bowman:
Q.  Mrs. Butt, you heard the shots bing bing, bong bong and looked up then and saw your son running?
A.  No I didn't say that.
Q.  When was it you did look up?
A.  I looked when the little shots were firing.
Q.  When the little shots were firing you looked up?
A.  I was already looking.
Q.  Were you looking when the first shots were fired?
A.  Some one said, look yonder, and I looked.
Q.  I don't want to be mistaken about it, didn't you say look yonder and the shots were made and you looked up?
A.  No sir.
Q.  You didn't say that?
A.  No sir.
Q.  I beg your pardon then, you did look up before the shots were made?
A.  I was standing like I would be standing facing you and these two children, one was by the side of me, and they saw the attraction before I did, and said, look yonder, and the way they were pointing I just had to do that way you know.
Q.  Had there been any shots fired at that time?
A.  No sir.
Q.  Then it was you heard the little shots and the big shots?
A.  I heard the little shots and then I heard the big shots and the little shots.
Q.  Did you see your son doing any shooting at all?
A.  No sir.
Q.  Did you hear any shooting after he had run back towards the barn?
A.  Yes sir.
Q.  From what point?
A.  It sounded to me like it was near the barn, but you see when he passed out of my sight, the way he was running I thought he was wounded, he was kind of stooped over going this way, he wasn't going right straight it didn't look like to me.
Q.  If you were standing down at this apple tree you could see clear to the barn door?
A.  No sir, I might have just could see the barn door, but there was an obstruction cut off my view before he got to the barn door.
Q.  What was the obstruction?
A.  A little house.
Q.  What kind of a little house?
A.  A small house in the garden.
Q.  Where is that situated?
A.  About the middle of my vegetable garden.
Q.  That house obstructed your view just before he got to the barn?
A.  When he passed behind that I started, I couldn't stand it any longer.
Q.  Where did you go to?
A.  I went into my yard and into his yard.
Q.  Had there been any shots made back there before you started?
A.  They were pretty near all over, by the time I got around into his yard they were all over.
Q.  My question was, at the time you started around there had Virgil fired any shots?
A.  Yes sir.
Q.  And at that time he was just going in behind this little house out of your sight when you started as you have said to come around in the yard.
A.  There had no big shots been fired then.
Q.  At the time you started to come around to the yard, Virgil was then getting out of your sight behind this little house, is that true?
A.  He was out of my sight by the time I started.
Q.  Did you hear any shots at all from over in the lot up till that time?
A.  They commenced almost immediately.
Q.  Both ways.
A.  Just like that.

Re-Direct Examination

Q.  How many shots had been fired before they commenced going that way?
A.  I think there was four, I know there was three as fast as they could be, and it seems to me that there was a kind of a little bit of a flash and another little one and then they commenced big and little ones.
Q.  Mrs. Butt, when this shooting started did Wilda say anything or cry out anything?
A.  Yes sir.
Q.  What did she say?

Objected to as incompetent.

BY THE COURT:
I think it would be competent under the surroundings and situation, it would be part of the res.

Q.  What did Wilda say?
A.  She hollooed out that Al Hester was killing Papa and went off hollooing it.
Q.  Went off where?
A.  Off around towards home hollooing it.

Further this deponent saith not.

WILDA BUTT
called for the defendant, being duly sworn, deposed as follows:

Direction Examination
By Mr. Bass:
Q.  What is your name please mam?
A.  Wilda Butt.
Q.  How old are you?
A.  Fourteen years old.
Q.  You are the daughter of Virgil Butt?
Q.  Wilda, where were you the day the shooting took place?
A.  I was in my grandmother's orchard in an apple tree that had blown down.
Q.  Who else was out there?
A.  Arthur Butt and Lacy Butt.
Q.  They are cousins of yours younger than you?
A.  Yes sir.
Q.  Was your grandmother out there?
A.  Yes sir, she was out there.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  Now did you see your father--where were you in the apple tree Wilda?
A.  I was up there where the limbs go out.
Q.  Where the limbs go out, do you mean in the forks of the tree?
A.  Yes sir.
Q.  Did you see your father or Mr. Hester either one before the shooting began?
A.  Yes sir.
Q.  Where did you first see your father?
A.  He was going up the sidewalk.
Q.  At what point did you first see him?
A.  I saw him about along where my grandmother's garden fence commenced.
Q.  Along about your grand mother's fence over next to High Street?
A.  Yes sir on this side.
Q.  Well, did you see him as he walked on up the street?
A.  Yes sir.
Q.  Did you see Mr. Hester before the shooting?
A.  Yes sir I saw him.
Q.  Where did you first see Mr. Hester?
A.  I saw him in front of Mr. Kerley's house on the walk.
Q.  Tell what happened Wilda.
A.  Well, I watched Mr. Hester until he got nearly to the big gate and then I looked at Papa again and when I saw Papa he was right at the gate, then I looked at Mr. Hester.  I looked at Mr. Hester and the next time I looked at Papa he was on the inside of the gate and Mr. Hester came over to the gate where the gate sets in and he was talking to Papa.
Q.  Where was your Papa inside of the gate, how far away from the gate was he?
A.  He was about as far as from here to the table.
Q.  As far as from here to this table?
A.  Yes sir.
Q.  What happened, did you see any shooting?
A.  I didn't see Mr. Hester shoot but I could tell the sound came from the gate post and I saw just a little smoke.
Q.  You could tell the sound came from towards the gate post?
A.  Yes sir.
Q.  Who shot first?
A.  Mr. Hester shot first.
Q.  Where was your Papa when Mr. Hester fired that first shot, about how far from the gate was he?
A.  I don't know, I saw him step back before he shot and Papa run then but I didn't see him, I couldn't see him for the apple leaves on the tree.
Q.  You mean after your Papa started running you couldn't see him for the apple leaves on this tree you were in?
A.  Yes sir.
Q.  He got out of your sight?
A.  Yes sir.
Q.  How many times did Mr. Hester shoot there before your father got out of sight?
A.  He shot about three or four times.
Q.  Now did you hear any shots after that, up to that time did your Papa shoot any at all?
A.  Well, I heard a big shot.
Q.  I mean up to the time that your Papa got out of sight had he shot any?
A.  No sir.
Q.  You started to say something about hearing some big shots?
A.  Well I heard the big shot after I heard smaller shots, I heard some big shots down near the barn.
Q.  You couldn't see your Papa on account of the apple leaves?
A.  No sir.
Q.  How many shots did you hear in all Wilda, about how many?
A.  I don't know but there was a lot of them it sounded like.
Q.  A lot of them?
A.  Yes sir.
Q.  Well, did all the big ones come last or did they mix up?
A.  They mixed up, a big one and a little one it sounded like.
Q.  What did you do then?
A.  I jumped out of the apple tree and run home screaming and holloing  Al Hester is killing Papa.
Q.  Where did you go when you got home?
A.   Run around through our yard and told Mamma the same thing and I run out to our lot there and had started to the barn but Mrs. Galloway told me not to go that I would get shot.
Q.  Did you see your Papa then when he came in?
A.  Yes sir I saw him up at the barn.

CROSS EXAMINATION
By Mr. Bowman:
Q.  How come you out in the little lot on this occasion?
A.  Sir.
Q.  What did you go out in the apple tree for that morning?
A.  I was out there playing.
Q.  Playing around the apple tree?
A.  Yes sir.
Q.  Who was playing with you?
A.  Arthur Butt and Lacy.
Q.  Was there anything planted out there?
A.  There was some Irish potatoes and some corn.
Q.  You all were playing in the Irish potatoe patch around that old tree?
A.  Yes sir.
Q.  How long had you been out there, when this difficulty occurred?
A.  We had been out there about half an hour.
Q.  You had climbed up into the tree I believe you said and was up about the forks?
A.  Yes sir.
Q.  How come you to get in the tree?
A.  I was getting apples and eating them.
Q.  How come you to notice your father and Mr. Hester?
A.  I just happened to watch Papa until he went on up.
Q.  Until he went on up to the gate, did you have any special reason for watching him that morning?
A.  No sir.
Q.  But when you saw him come out of the stable you just watched him until he came on up to the gate?
A.  Yes sir.
Q.  Where was Mr. Hester when you saw him the first time?
A.  Along about where Mr. Kerley's walk goes across.
Q.  You didn't see Mr. Hester have any pistol?
A.  No sir.
Q.  You didn't see any pistol in his hand?
A.  No sir.
Q.  You heard some shots and from the direction you supposed they came from Mr. Hester's pistol?
A.  I could tell they came from the gate post.
Q.  You saw some smoke from the gate post?
A.  I saw just a little smoke.
Q.  Did you look to see whether there was any smoke come from the lot where your father was?
A.  No sir.
Q.  You didn't look to see?
A.  No sir but I could see smoke when they got to shooting, but I didn't see any smoke--I saw smoke come from the gate post first before I saw any smoke at all.
Q.  Before you saw any in the lot?
A.  Yes sir.
Q.  You say you couldn't tell where your father was when he was doing the shooting because of the leaves on the apple tree?
A.  Yes sir.
Q.  If you had been on the ground at that apple tree could you have seen?
A.  Yes sir I think I could.
Q.  You think you could if you had been down there?
A.  Yes sir.
Q.  These shots made in the lot.  How soon after these first shots were made until you heard the next shot?
A.  What was the first?
Q.  You say Hester made the first shots and then you heard shots in the lot didn't you?
A.  I heard the shots come from the gate post when I heard some come from the barn.
Q.  Were those shots from the barn just immediately after the shots at the gate post?
A.  No sir.
Q.  Half a minute or a minute between you think?
A.  I don't know.
Q.  Had you seen your father go to the barn?
A.  No sir I didn't see him, I couldn't see him from the leaves.
Q.  He was within ten feet of the gate post and there was no shots made after these first shots were made for some little time and the shots you heard were at the barn?
A.  Yes sir the bigger shots was.
Q.  Then from the time your father left the gate post within ten feet of it there was no shots made until after he had gotten into the barn, after these shots were made by Mr. Hester at the gate post, is that correct?
A.  Yes sir I think so.
Q.  Where did you notice your father the first time?
A.  I noticed him going up the walk.
Q.  Had he already gotten across, did you see him when he came out of the livery stable?
A.  No sir I did not.
Q.  He had gotten over here and was on this walk before you noticed him.
A.  Yes sir.

Re-Direct Examination.
Q.  You say that you saw your father after he had started to running and then he got behind the leaves and you couldn't see him any further?
A.  Yes sir.
Q.  You didn't see him any more after that?
A.  No sir I didn't see him.

Further this deponent saith not.

EULALLA BUTT
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Durham
Q.  This is Miss Eulalla Butt is it?
A.  Yes sir.
Q.  You are a daughter of V. R. Butt?
A.  Yes sir.
Q.  Do you live at Portland?
A.  Yes sir.
Q.  What is your age?
A.  Sixteen.
Q.  Was you at home on July 2nd 1914?
A.  Yes sir.
Q.  Did you hear any shooting that morning?
A.  Yes sir.
Q.  About what time in the morning?
A.  It was in the morning.
Q.  Where were you at the time the shooting began?
A.  In the hall at the front door.
Q.  About how many shots did you hear?
A.  I suppose I heard all of them.
Q.  Well, were there a number of shots?
A.  Yes sir.
Q.  Now when you heard the shooting begin what did you do?
A.  I run out to the side gate.
Q.  Describe to the jury the character of shots you heard, could you tell any difference in the sound of the shots?
A.  Yes sir I heard three small shots and then just a few seconds, and then a loud shot.
Q.  Then did you hear any more loud shots after that?
A.  Yes sir it was just all mixed together then.
Q.  It was all mixed up you say?
A.  Yes sir.
Q.  Did your sister Wilda come up there?
A.  Yes sir.
Q.  What did she say to your mother?
A.  She said, Mamma Al Hester is killing Papa.

Objected to.

BY THE COURT:
I don't think that would be competent there.  The rule upon which it was admissible when Mrs. Butt was on the stand was that it was a spontaneous statement.

JUDGE ANDERSON:
We withdraw that part of her statement, we don't insist on that.

CROSS EXAMINATION
By Mr. Bowman:
Q.  You are the daughter of the defendant Virgil Butt?
A.  Sir?
Q.  Who is your father?
A.  Virgil Butt.
Q.  You were in the house when you heard the first shot?
A.  Yes sir.
Q.  You first heard three shots you think were smaller, than the next--
A.  I know they were.
Q.  You know that they were smaller.
A.  Yes sir.
Q.  After hearing those shots almost immediately you heard the louder shots?
A.  Yes sir.
Q.  You first heard three shots you think were smaller than the next--
A.  I know they were.
Q.  You know that they were smaller?
A.  Yes sir.
Q.  After hearing those shots almost immediately you heard the louder shots?
A.  Yes sir.

Re-Direct Examination

Q.  You ran out in the yard and was there close to the place?
A.  Yes sir.

Further this deponent saith not.

WALLACE BUTT
called for the defendant, being first duly sworn, deposed as follows:

Direct Examination
By Judge Anderson:
Q.  What is your name?
A.  Wallace.
Q.  Wallace Butt?
A.  Yes sir.
Q.  What relation if any are you to the defendant?
A.  Brother.
Q.  Where do you live?
A.  I live at Portland.
Q.  How old are you?
A.  Forty five years old.
Q.  What is your business?
A.  A farmer
Q.  Mr. Butt this diagram is supposed to represent the Hester and Butt neighborhood of Portland?
A.  Yes sir.
Q.  This street going around up this way is Russell Street on which your brother's house fronts?
A.  Yes sir.
Q.  Down here next to it is your mother's house?
A.  Yes sir.
Q.  Then back there immediately east there of your brother's house and near to Russell Street there is another little building?
A.  Yes sir.
Q.  Then there is a lane, this represents a land running through from one street to another on which a little nearer High Street than Russell Street your brother's barn is situated?
A.  Yes sir.
Q.  Are you familiar with those premises?
A.  Yes sir.
Q.  Who lives just next above your brother's and next to that gate that enters into your brother's premises, that lane?
A.  Doctor Galloway.
Q.  What kind of a gate is there that goes in off of Russell Street into that lane?
A.  It is a patent gate.
Q.  You mean by that one of those gate's that open from the buggy?
A.  Yes sir.
Q.  What is across the top of that gate if anything?
A.  Barbed wire.
Q.  Were you in Portland the day of the killing, the shooting?
A.  Yes sir.
Q.  Where were you at the time the shooting occurred, when it first began?
A.  I left the stock yard and started home.
Q.  Which way were you going, what street were you on?
A.  On Russell Street going home.
Q.  Were you on the sidewalk?
A.  Yes sir.
Q.  The sidewalk on which side of the street the one nearest to your brother's?
A.  Yes sir, I was on the south side of Brother's house on Russell Street.
Q.  You were on the north side of Russell Street then, North side of Russell Street?
A.  No sir I was on the south side of Russell Street; on the North side of Russell Street, that is right.
Q.  Your brother's house fronts south?
A.  Yes sir.
Q.  You were on the sidewalk on the same side of the street his house is on?
A.  Yes sir the same side.
Q.  Where did you live?
A.  I lived down Russell Street away down in the bottom.
Q.  You lived out Russell Street beyond where you brother lived?
A.  Yes sir.
Q.  As you were passing along there what first attracted your attention if anything?
A.  A shot from a pistol.
Q.  Where were you when you heard that shot?
A.  Ten or fifteen feet above brother's corner, between Dr. Galloway's and his corner on Russell Street.
Q.  (Referring to the Map) Let this represent his corner and this the gate, you say you had passed that corner going up in front of Dr. Galloway's, some ten or fifteen feet past the corner when you first heard the shot?
A.  Yes sir.
Q.  Immediately on hearing that shot what did you do?
A.  I run back to the corner where I could see.
Q.  As you were going back to the corner, and the gate was at the corner was it?
A.  Yes sir.
Q.  As you were going back to the corner of the gate, had any more shots fired?
A.  Yes sir the second shot fired about the time I got to the gate post.
Q.  Which direction did you look?
A.  I looked northward.
Q.  When was the third shot fired?
A.  About the time I got to the gate.
Q.  Were those shots in rapid succession or not?
A.  Yes sir.
Q.  Then which way did you look?
A.  I looked northward.
Q.  You mean out towards High Street?
A.  Yes sir.
Q.  Was the barn between High Street and Russell Street?
A.  Yes sir.
Q.  What did you see when you looked Northward?
A.  I seen brother running.
Q.  Which way was he running?
A.  Running towards me.
Q.  Where was he?
A.  He was in his lot.
Q.  What part of the lot was he in?
A.  He was very near to the barn coming towards me.
Q.  Had he come through the barn?
A.  No sir he was beyond the barn.
Q.  He was between the barn and High Street?
A.  Yes sir.
Q.  And coming in the direction you were coming?
A.  Yes sir.
Q.  How was he running?
A.  He was running very fast in a stooping position, it seemed like he had his hand up kind of in front of him like somewhere.
Q.  Did you see where the third shot came from?
A.  Yes sir.
Q.  Where?
A.  It came from behind the post.
Q.  What post?
A.  Over there on High Street.
Q.  Was it a fence post?
A.  No sir a gate post like this one on this other side eight inches square.
Q.  About the time you saw your brother come running out there did you see him do anything?
A.  He was running when I first saw him.
Q.  Did he keep on running?
A.  No sir he turned and commenced shooting about the time he got to the barn.
Q.  How close was he to the barn when he commenced shooting?
A.  I can't tell but he was very near to the barn, it seemed that way to me.
Q.  How many shots did he fire?
A.  I don't know sir.
Q.  Was there any difference in the sound between those first three shots and when your brother commenced to shoot?
A.  Yes sir.
Q.  What was the difference?
A.  One sounded like an automatic pistol, very small one, and one like a tolerable large pistol.
Q.  One made a louder sound than the other?
A.  Yes sir.
Q.  Which was the louder?
A.  The one brother was shooting.
Q.  In the meantime what had you done?
A.  I wanted to get over the gate and I made an effort to get over the gate, it was hard to open, I got up on top of the gate and got hung on the barbed wire.
Q.  Was there barbed wire on top of the gate?
A.  Yes sir, I was on that barbed wire too.
Q.  After these three shots you say your brother turned and fired?
A.  Yes sir.
Q.  What was the character of the firing from then on?
A.  Just general firing right along.
Q.  Big and little?
A.  Yes sir big and little.
Q.  Did your brother ever get any closer to the barn?
A.  He was about the mouth of the barn when he quit firing.
Q.  Was he inside of the barn when he fired the last shot or could you tell?
A.  He seemed like he was on the edge of the barn when he quit shooting.
Q.  How could you see through that barn?
A.  There was a door ten feet square.
Q.  Were they double doors?
A.  Yes sir.
Q.  Were they open?
A.  Yes sir.
Q.  Was there anything in the passageway?
A.  Yes sir next to the wall there was a rural route buggy maybe a bart or something.
Q.  Did it obstruct your view?
A.  No sir it didn't interfere with me, I was up on the gate where I could see good.
Q.  After the firing was over, after you got off the gate and got loose from the barbed wire, what did you do?
A.  I was going towards brother as fast as I could.
Q.  Where did you meet him?
A.  At the barn.
Q.  Where did he go?
A.  He turned and went back.
Q.  Did you go back with him to his house?
A.  Yes sir.
Q.  Did he have any pistols?
A.  Yes sir he had two pistols.
Q.  After the firing begun did you see Mr. Hester at any time during the firing.
A.  Yes sir he was behind a post.
Q.  Did you see him when he fell?
A.  Yes sir I saw him when he fell.
Q.  At what shot was it that he fell?
A.  The last shot brother shot.
Q.  Could you tell how he was standing there at the gate as he was shooting?
A.  No sir he was behind the gate, I couldn't have sworn who it was behind the gate at the present time but I could tell it was a man shooting from behind the gate.
Q.  After he fell did you brother shoot any more?
A.  No sir he didn't shoot a shot.

CROSS EXAMINATION
By Mr. Bowman:

Q.  Mr. Butt, you were coming up Russell Street over here?
A.  Yes sir.
Q.  And had gotten just about ten feet above this gate you think right here on Russell Street?
A.  Just above the gate there, yes sir.
Q.  And you heard how many shots/
A.  I just heard one when I first stopped.
Q.  One when you first stopped?
A.  Yes sir.
Q.  How long was it after the first shot was made until the next shooting was made?
A.  They came along pretty tolerable close together.
Q.  They were all three together?
A.  No, there was a little small pause, but very small.
Q.  Then there was one shot and a little pause and two shots?
A.  Yes sir.
Q.  You don't know who made those shots?
A.  I didn't see until I got back to the gate.
Q.  After the shooting you turned and went to the gate to get over?
A.  Yes sir.
Q.  In getting over that gate I believe you got hung there?
A.  Yes sir.
Q.  While scuffling to get over the gate and climbing were you watching all of the time or trying to get off of the gate.
A.  I was looking forward.
Q.  Looking forward all the time?
A.  Yes sir.
Q.  There is a wide plank on each side, an eight or twelve inch strap hinge is fastened to it?
A.  They are fastened to the post on each side, they come together in the center.
Q.  And there is a big post on each corner to which the hinges are fastened?
A.  Yes sir.
Q.  How wide is that post?
A.  I don't know sir, it is not a very big post.
Q.  On which side of the barn was the buggy and cart?
A.  On the right hand side the way I went in, that would have throwed it on the east side.
Q.  Was the top up to that buggy?
A.  It was a rural route buggy, they have got a little top to it.
Q.  About how high would you say that rural route buggy top was?
A.  I don't know a rural route buggy is not very high.
Q.  About as high as the average buggy/
A.  No sir not quite I don't think.
Q.  It wouldn't lack six inches of it?
A.  I don't know that, I never did measure it.
Q.  Didn't you say there was a buggy and cart too there?
A.  Yes sir there was a buggy and cart too if I am not badly mistaken.
Q.  And they were on the east side of that barn?
A.  Yes sir.
Q.  After the three shots were made and you looked up what did you see then?
A.  I saw Virgil running.
Q.  Where was Mr. Hester standing at that time?
A.  Behind the post.
Q.  Do you mean that inside post or this corner post?
A.  I mean the far post on High Street.
Q.  Then it was at this outside corner post at this opening here.
A.  Is that over on High Street?
Q.  This is on High Street.
A.  That post up next to Mr. Kerley.
Q.  On the sidewalk?
A.  It sits off of the sidewalk about seven feet.
Q.  Do you mean to say down in this opening behind the gate post?
A.  Behind the gate post.
Q.  Behind the gate post right into this post right here this represented the opening right here (Butt indicating), here is the sidewalk, here is the outside post, here is this opening and the gate swings here?
A.  Which post is next to Kerley?
Q.  This is the post next to Mr. Kerley and here is the one that the gate swings to.
A.  If this is the one the gate swings to this is the one I would say that he was behind.
Q.  When he fell he fell right at this post?
A.  Yes sir.
Q.  And it is about six feet from that post to the sidewalk?
A.  I guess it is.
Q.  Where was your brother when he shot the first time?
A.  He turned and was something near the barn.
Q.  Do you think he was in ten feet of the barn?
A.  I can't say.
Q.  Fifteen feet?
A.  I can't say.
Q.  Any how before he got to the barn he was shooting?
A.  Yes sir.
Q.  After he got in the barn he got his other pistol and fired again?
A.  I don't think he got in the barn, he might have got to the mouth of the barn.
Q.  You think he made all of his shots before he got to the barn?
A.  No I don't think he did.
Q.  Well, that is what I want to get at.
A.  I think he got to just about the edge of the opening.
Q.  When the last shots were made?
A.  Yes sir.
Q.  I believe you stated Mr. Butt that an automatic pistol shooting smokeless powder makes a much smaller report than and ordinary cartridge with black powder, a thirty-eight?
A.  Yes sir.
Q.  A thirty eight smokeless powder cartridge would make a louder explosion than a thirty two automatic pistol cartridge would make, ain't that correct?
A.  Yes sir.

BY JUDGE ANDERSON:
We agreed sometime ago in the case, but it has not been put in the record, that the sound or report of a thirty eight Smith & Wesson pistol would be larger and heavier sound than one from a thirty two automatic, we have agreed on that.

Re-Direct Examination

Q.  You say you heard that third shot come from behind that post?
A.  Yes sir.
Q.  Did that shot sound like the first two you heard?
A.  Yes sir.
Q.  From the same pistol?
A.  Yes sir.

Further this deponent saith not.


State vs. Virgil Butt, Part III

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