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The State Vs. Virgil Butt
1915 - Part IV

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

Transcribed by Jan J. Barnes
© 2003

Loose Record # 3444

Testimony of Clint Mays, John D. Perdue and William Parks

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

Direct Examination
By Mr. Guild:
Q.  This is Clint Mays is it?
A.  Yes sir.
Q.  Clint, how old are you?
A.  I will be 19 the 6th day of next August.
Q.  Are you a son of Mrs. Elizabeth Mays who has testified in this case?
A.  Yes sir.
Q.  You live in Portland I believe?
A.  Yes sir.
Q.  How long have you lived there?
A.  Three years I think the last time, I lived there twice, four years the last time I think.
Q.  Have you lived in Sumner County all your life?
A.  No sir not all my life.
Q.  Where have you lived?
A.  I lived in Kentucky some with the exception of that I have lived in Sumner County.
Q.  Clint, where were you working in July of last year the day that Mr. Hester was killed at Portland?
A.  I was working at the livery stable.
Q.  What livery stable?
A.  Butt's.
Q.  I will get you to come down here and look at this map, do you recognize that as a map of Portland, this is the street running by the depot here, this the railroad tracks coming across east, here the Butt's livery stable?
A.  Yes sir.
Q.  This is High Street here, do you recognize those locations?
A.  Yes sir.
Q.  Do you recognize that as about the position of the Finn shop with reference to the Butt's livery stable?
A.  Yes sir.
Q.  Were you at the stable that morning?
A.  Yes sir.
Q.  How long had you been there that morning?
A.  I had been there all the morning.
Q.  What did you do there at the stable?
A.  I worked there, anything there was to do.
Q.  You were in the employ of Mr. Butt's the defendant?
A.  Yes sir.
Q.  Was your attention attracted at any time that morning by seeing Mr. Butt or Mr. Hester at any time that morning?
A.  Well, yes sir, I had saw them both that morning.
Q.  When was the first that you saw Mr. Hester that morning?
A.  Well I don't know, I saw him a time or two that morning passing along.
Q.  I mean with reference to the shooting itself, how long before the shooting did you see him?
A.  I saw him come out of his front yard up there.
Q.  You saw Mr. Al Hester come out of his front yard?
A.  Yes sir.
Q.  Where were you at that time?
A.  I was in the rear end of the livery stable.
Q.  Come here and point out with the stick saying this is the rear end of the livery stable, point out where you were?
A.  I guess I was somewhere about there, in about four feet of the door.
Q.  Were the doors open?
A.  Yes sir.
Q.  Both of them?
A.  Yes sir.
Q.  Were they large or small doors?
A.  Large doors.
Q.  Now point right here, come down again, this is Mr. Hester's house here on this map?
A.  Yes I understand.
Q.  Point with this stick about where you saw him come out?
A.  He was about that close, before he struck his front walk.
Q.  Which way did he go?
A.  He came right out and came across the street and down here and struck the walk at McGuires.
Q.  You say he crossed the street there and went over to the sidewalk at McGuires?
A.  Yes sir.
Q.  Then which way did he go?
A.  Came right on down like he was coming to town, down the street.
Q.  Tell in your own way what you had seen with reference to Mr. Butt up until that time?
A.  He came on through the livery stable and said he was going up to the house a few minutes, like he always does when he leaves his business, and he went on out and stopped there as he went out and said something to one of the Finn's that was sitting there in a buggy.  He crossed the street and went on up towards his big gate that leads to his barn.
Q.  Do you know where he crossed the street here from the Finn's?
A.  He crossed the street right along about here I think.
Q.  Where did he go to?
A.  He went on up the walk on the right hand side going east.
Q.  On the side of his property?
A.  Yes sir.
Q.  How far did he go?
A.  He went on to his gate and went through the gate.
Q.  Did you notice anything about his walking?
A.  He peartened his walk it looked like when he saw Hester.
Q.  When he saw Mr. Hester?
A.  Yes sir.
Q.  What do you mean by that?
A.  Well, I don't know, it looked to me like he was trying to get there before they met.
Objected to and sustained.
Q.  Do you mean he walked faster?
A.  Yes sir.
Q.  Was Mr. Hester in his sight and view at that time?
A.  Yes sir he was walking a heap faster I thought.
Q.  Mr. Hester was?
A.  Yes sir.
Q.  Now just describe the position of Mr. Hester on that sidewalk at about the time that Mr. Butt went into his gate?
A.  He was along about Kerley's yard just before he got to the gate.
Q.  Was he walking fast then or slow?
A.  He was walking fast.
Q.  What did Mr. Butt do when he went in his gate?
A.  He went in the gate and shut the gate.
Q.  What did he do after he got in his lot?
A.  Well, he stopped, I suppose Hester said something to him.
Objected to what he supposed.
Q.  From their appearance and manner could you tell they were talking?
A.  Yes sir, I couldn't hear them but I could tell they were saying something.
Q.  What did Hester do then?
A.  They were standing there and he moved his left hand like they were talking.
Q.  About what position was Hester with reference to the gate when he did that?
A.  He was standing in that little off set between the walk and the gate.
Q.  You mean this little off set between Mr. Butt's gate and the sidewalk?
A.  Yes sir.
Q.  You say he was making some kind of motion with his left hand as if he was talking to somebody?
A.  Yes sir.
Q.  Could you tell what Mr. Butt was doing then?
A.  No sir only he was standing there.
Q.  Did you see him do anything else but stand there?
A.  No sir.
Q.  I mean at that particular time?
A.  No sir.
Q.  What occurred then Clint?
A.  He just had his hand in his right pocket here.
Q.  Who?
A.  Hester.
Q.  How long had he had it in there, do you know, or did you see him put it in there?
A.  No sir I didn't see him, he had his hand in his pocket when I noticed him.
Q.  What happened then?
A.  He took his pistol out.
Q.  Could you see his pistol when he took it out?
A.  Yes sir.
Q.  What did he do with the pistol?
A.  He shot two or three shots.
Q.  Where was he when he shot those shots and in what direction did he shoot?
A.  He was standing behind the gate and shot then towards Butt.
Q.  With reference to this gate post east of Mr. Butt's where was Hester standing?
A.  He was standing behind the post, when he pulled his gun.
Q.  You say he shot two or three times?
A.  Two or three times, yes sir.
Q.  What happened then?
A.  Well Butt's he run, when he began shooting he run.
Q.  Do you know how far he run?
A.  He run up to about ten steps of the barn.
Q.  What did he do then?
A.  He turned around and I heard the report of a large gun, I suppose he shot, I couldn't see him from the fence.
Q.  You say you couldn't see him up in there?
A.  I couldn't see him take his gun out, no sir.
Q.  But did he have his gun in his hand up until he disappeared?
A.  No sir, if he did I didn't see it.
Q.  You could see his hand?
A.  Yes sir when he was standing there talking.
Q.  Did you see him fire in any way up until the time near the barn?
A.  No sir.
Q.  Now Mr. Mays, with reference to the report of the sound of this first pistol, what was the sound of that pistol that fired, which you say was fired by Mr. Hester, as compared with the sound of the pistol that you say Mr. Butt fired?
A.  There was a right smart of difference.
Q.  Describe to the jury the difference as near as you can?
A.  Well it seemed a whole lot smaller to me, the first gun did.
Q.  Are you familiar with the sounds of different kinds of pistols?
A.  I have heard a good many kinds, I am not very familiar with them.
Q.  And that was a smaller sounding pistol than Mr. Butts'?
A.  Yes sir.
Q.  Mr. Mays about how many shots were fired in all?
A.  I don't know exactly.
Q.  Well, give it as near as you can?
A.  I should think about fifteen was my belief about it.
Q.  Do you know which shot hit Mr. Hester?
A.  Well, he fell when the last shot was fired.
Q.  What do you mean by the last shot?
A.  The last report from the big gun.
Q.  You saw him fall did you?
A.  Yes sir.
Q.  Had you noticed any material difference in the position of his body up until the time of that last shot?
A.  No sir I did not.
Q.  Which way did he fall?
A.  He creened over that way and fell.
Q.  Did he fall forward or backward toward the sidewalk?
A.  Backward, he creened over just like that and when he hit the ground he fell over.
Q.  Did Mr. Hester continue to shoot up until the last shot was fired?
A.  He did, yes sir.
Q.  Mr. Mays, were you present at the livery stable of Mr. Butt on the Sunday morning before this occurrence?
A.  Yes sir.
Q.  In which a conversation was had between you and Butt and Hirshel Civils whereby you all agreed to kill Hester or Butt agreed to kill Hester and you and Civils to swear him out?
A.  I was present, yes sir.
Q.  Did that occur?
A.  It did not.
Q.  Did you ever hear anything like that?
A.  I never heard a thing like it, never did.
Q.  You had nothing to do with any conspiracy of that kind?
A.  Not a thing.
Q.  Did you hear that matter discussed there that morning/
A.  I did not.
Q.  Was it agreed that Martin Wright should be a witness to help you all swear Butt out?
A.  No sir it was not.
Q.  Did you have that agreement at any other time or did you ever hear of any such an agreement at any other time?
A.  No sir.
Q.  Clint, were you at home the night that Mr. Butt was shot by Mr. Hester?
A.  Yes sir.
Q.  Had you seen Mr. Butt that night?
A.  Yes sir.
Q.  Had he been up there to your house?
A.  Yes sir.
Q.  Where were you when the shots were fired at him?
A.  I just closed the front door and stepped on the inside of the hall.
Q.  Where was Mr. Butt the last time you saw him and when you went in the house?
A.  I left him at our front yard gate.
Q.  You mean your front yard gate on the street?
A.  Yes sir.
Q.  The sidewalk out there?
A.  Yes sir.
Q.  Do you know where he was going from your house?
A.  I suppose he was going--

Objected to and sustained.

Q.  What did you do immediately when you left him?
A.  I just went on back in the house.
Q.  Did you go slow or stop?
A.  I didn't go fast, I just went on in.
Q.  Just went on in the front door?
A.  Yes sir.
Q.  Where were you when you heard the shot?
A.  Inside of the hall.
Q.  How long had you been there?
A.  I hadn't been in there any time.
Q.  You mean you just had gotten in?
A.  Just had gotten in.
Q.  What attracted your attention then?
A.  The gun I heard, the gun shot.
Q.  Did you come out?
A.  No sir I went on in the house.
Q.  Did you come out after you heard the gun?
A.  No sir.
Q.  You didn't come out at all?
A.  No sir I didn't come out at all, it was familiar, I had been hearing it several times and I didn't pay it any attention at all.
Q.  Mr. Mays, did Mr. Butt order you to hitch up a team of horses to a surrey or any other vehicle before this shooting occurred on the morning of July 2nd?
A.  No sir.
Q.  Do you know when the stable received any order for a team with reference to the shooting?
A.  Yes sir.
Q.  When was it?
A.  I guess it was something like twenty minutes after the shooting was over, maybe thirty.
Q.  You didn't receive any order or instructions before that to hitch up any team by Mr. Butt?
A.  I did not, no sir.

Cross Examination
By Mr. Bowman:
Q.  Clinton, how many times have you been indicted in this court?
A.  I don't know, about two or three times.
Q.  Been indicted recently in the last few months for carrying a pistol?
A.  Not in the last few months.
Q.  Within the last two years?
A.  I don't know either about that, I am not certain.
Q.  How is that?
A.  I ain't certain, you ought to know more about it than I do.
Q.  Don't you know you were indicted and convicted for going armed, in this court?
A.  I certainly was.
Q.  Indicted for public drunkness?
A.  Yes sir.
Q.  Indicted for selling liquor?
A.  No sir.
Q.  For procuring liquor?
A.  No sir.
Q.  And sent to jail and put in the workhouse before you could get any body to secure it?

Objected to.

A.  I was indicted all right.
Q.  Clinton, you had worked for Mr. Hester before this?
A.  Yes sir.
Q.  You had a falling out with him about his refusing to let you have a horse and buggy one Sunday?
A.  I didn't have any falling out.
Q.  He refused to let you have it?
A.  Yes sir.
Q.  You got mad and quit?
A.  I didn't have any falling out.
Q.  You quit and left?
A.  Yes sir.
Q.  And went over and hired to Mr. Butt?
A.  Yes sir.
Q.  Previous to this difficulty Mr. Butt came up to your home pretty often, wouldn't he Clinton?
A.  No sir, he didn't.
Q.  Wouldn't he visit you all there very often?
A.  Not when I was at home.
Q.  What was his business up there the night he came to see you?
A.  I owed him some money.
Q.  He came up there to get that?
A.  Yes sir.
Q.  Did he come in the house?
A.  No sir he came to the front door and knocked.
Q.  Then you and he walked out to the gate?
A.  Yes sir.
Q.  Where were you when you first saw Mr. Hester?
A.  I was in the rear of the livery stable.
Q.  What were you doing up there?
A.  Storing away some buggies in the off-set of the barn we kept the buggies in.
Q.  About how far back were you from the doorway?
A.  I was something like four or five feet.
Q.  In the center or to one side of the stable?
A.  I was kind of over to the left hand side with my face east.
Q.  To the left hand with your face east and putting away some buggies?
A.  I had been.
Q.  What were you doing when you saw Hester?
A.  I wasn't doing a thing.  I just dropped my work when I saw him.
Q.  When you first saw Mr. Hester where was Mr. Butt?
A.  He was going across from Finn's shop, coming across from the corner above Finn's shop where they were working on a buggy.
Q.  Had he crossed the street?
A.  He always goes through his back gate up there where that crossing was a Finn's shop, he was kind of angling across the street.
Q.  From the back end of the barn angling across the street?
A.  Yes sir.
Q.  Was there anything to arouse your suspicion when you saw these two men?
A.  I knew the terms they were on.
Q.  You knew the feeling that existed between those men?
A.  Yes sir.
Q.  Did you watch them to see what occurred?
A.  I did.
Q.  You expected both of them to get in trouble?
A.  I expected something.
Q.  You watched them for that purpose - now Mr. Hester as he came down the walk you say Mr. Butt peartened up and walked fast and got in his gate?
A.  Yes sir.
Q.  Mr. Hester hadn't at that time reached the gate?
A.  No sir.
Q.  Butt stopped and turned around?
A.  After he got inside of the gate.
Q.  After he got inside of the gate he stopped facing Mr. Hester?
A.  Yes sir.
Q.  Mr. Hester came on down the walk and stepped into the off set?
A.  He was about the offset when Butt stopped.
Q.  Then he walked into that six foot offset?
A.  Yes sir.
Q.  He stood just behind the gate post?
A.  He wasn't quite behind it when they were talking.
Q.  He was standing near it?
A.  Yes sir.
Q.  He was facing Mr. Butt as I am facing you, standing square looking at him in that position?
A.  Facing him waving his left hand like that?
Q.  Then what did Hester do?
A.  He took his hand and pulled his gun out of his pants pocket.
Q.  Out of which pocket?
A.  Right pants pocket?
Q.  And began shooting?
A.  Yes sir.
Q.  You say at that time Mr. Butt run?
A.  Yes sir.
Q.  There was what kind of fence around Butt's lot?
A.  Paling fence.
Q.  That paling fence was between you and Mr. Butt?
A.  Yes sir.
Q.  Could you tell what Butt had in his hands down there behind that paling fence?
A.  I could see his hands before he got to the barn, and I could see he didn't have anything in his hands.
Q.  Didn't you just state as he run back there that the fence was between you?
A.  Yes sir I said the fence was between us.
Q.  How high is that fence?
A.  I don't know, it is pretty high.
Q.  A high paling fence?
A.  Yes sir.
Q.  Would strike a man away up about the shoulders?
A.  I don't know, I won't say how high it is.
Q.  About how high would it come on your body?
A.  I would come as high as it would on any other man's body.
Q.  Designate how high, stand up and show.
A.  It would come something about like here.  (Indicating about the chest).
Q.  Now near were the palings of that fence?
A.  About the width of my hand.
Q.  About the width of your four fingers?
A.  I suppose so.
Q.  How wide are the palings?
A.  The palings are something like that way.
Q.  Something like as wide as your three fingers and that paling fence was between you and Mr. Butt?
A.  Yes sir.
Q.  When you noticed Hester shooting you say Butt was behind the gate?
A.  In side of the lot.
Q.  Who were you watching at that time?
A.  I was watching Hester.
Q.  Do you know what Butt had in his hand at that time?
A.  I didn't say he had anything in his hand, I say he didn't have anything in his hand.
Q.  You could see that through the paling fence and while you were watching Hester shoot you could likewise see Butt?
A.  I didn't watch them both all at the same time.
Q.  When you noticed Butt running what did he have in his hand?
A.  I didn't notice his hands when he was running.
Q.  Where were his hands?
A.  Who?
Q.  Butt's?
A.  On his body I reckon.
Q.  How was he running, how did he have them?
A.  Had them down.
Q.  By his side, did you see him when he got his pistol?
A.  No sir.
Q.  You don't know whether he pulled his pistol out of his pocket or had it in his hand and commenced shooting?
A.  I suppose he got it out of his pocket, he didn't have it in his hand.
Q.  You are sure of that?
A.  Yes sir.
Q.  The very day of this difficulty didn't you tell Wiley Pardue in Portland that you didn't see any of this shooting at all?
A.  No sir.
Q.  You didn't make that statement?
A.  No sir I never did.
Q.  Weren't all three of you boys in front of the stable and Mr. Bradley and Absher and others see you and you saw them?
A.  No sir.
Q.  Didn't you tell Clifton Lucas on Monday after the shooting in a conversation with Civils, that you must all get together and get Virgil out of this so that he could come back home?
A.  No sir.
Q.  You are very much interested in this case in Mr. Butt's behalf?
A.  No more than nothing else.
Q.  And have discussed the matter with him and been to see him since he was in jail?
A.  I certainly have.
Q.  How many times have you been to see him?
A.  Every time I had a chance.
Q.  You discussed this case and helped him to get some proof?
A.  No sir.
Q.  He has asked you to assist him in it?
A.  No sir.
Q.  Clint, you were in jail down here confined in there with Mr. Butt sometime were you?
A.  Yes sir.

Re-Direct Examination

Q.  What were you in there for, what were you confined in jail for?
A.  For some costs I owed.
Q.  In one of those misdemeanor cases?
A.  Yes sir and for carrying whiskey, some costs.
Q.  They claimed you got some whiskey for another man is that it?
A.  Yes sir.
Q.  And they had you in there for the costs?
A.  Yes sir.
Q.  Clint I will ask you if on that occasion when you were in jail, at the time Mr. Bowman has spoken of, if you were not in there on account of having procured some whiskey for some parties who had made up a purse and gave you the money and you went and got it?
A.  Yes sir.
Q.  That is all you had to do with it?
A.  That is all.
Q.  Who were the parties you got it for?
A.  There was six of us into it, all throwed in a quarter apiece.

Further this deponent saith not.

called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Guild
Q.  This is Mr. John D. Perdue, is it?
A.  This is John Perdue, yes sir.
Q.  Where do you live Mr. Perdue?
A.  I live at Portland.
Q.  Have you lived in this county all your life?
A.  All my life, yes sir.
Q.  What has been your occupation and business?
A.  I have been a farmer.
Q.  Have you also been in the goods business in Portland?
A.  Yes sir three years there I was in the goods business.
Q.  Where were you on the morning of this shooting between Mr. Hester and Mr. Butt.?
A.  At Portland.
Q.  Where were you as to the location?
A.  I was down not far from Mr. L. Kerley's store.
Q.  The old gentleman?
A.  Yes sir.
Q.  That is the store on the corner next to the depot is it?  This purports to be a map of Portland, especially the railroad tracks and the street there on each side, east and west Portland, this is supposed to be Mr. Kerley's store corner, just point out about where you were at that time?
A.   This is the street?
Q.  This is Main Street and this is Mr. Kerley's corner right there.
A.  This is the lower corner, the east corner?
Q.  Yes sir.
A.  Well, I was standing right there.  (Indicating)
Q.  How far from the wall of the building were you/
A.  I reckon five or six feet, I was standing against a post there with my foot sitting up on a plow.
Q.  Which way were you looking?
A.  I was looking out that way.
Q.  East?
A.  Yes sir.
Q.  Up towards High Street you mean, across the railroad?
A.  Yes sir I was looking up leaving the stable to my left.
Q.  Was your attention attracted at that time by any thing or any noise?
A.  Well, it was by the shooting when it commenced.
Q.  Did you hear some shots?
A.  Yes sir.
Q.  What did you do as soon as you heard the shots?
A.  Of course I looked up and it drawed my attention on the first shot.
Q.  Could you see where the shots were?
A.  Yes sir I could see the surroundings of the shots.
Q.  Could you see any body shooting?
A.  No sir.
Q.  Describe the first shots that you heard?
A.  The first shot or the first shots?
Q.  The first shot.
A.  Well, the first shots were small shots, three or four, now I won't say for certain which, were small shots, small reports.
Q.  Well, what did you next hear, describe what you heard?
A.  Well, there was a little space betwixt the shots and the next shot was a larger shot, and they lit in then, there was several large shots, I don't know how many, I didn't pay any attention to them.
Q.  Were those shots mixed after that pause?
A.  Yes sir, mixed, little ones and big ones.
Q.  Do you mean to say after the first three--
A.  After the first three or four.
Q.  There was a pause?
A.  Yes sir.
Q.  Then you heard the larger gun?
A.  Yes sir.
Q.  And from that time it was mixed up?
A.  Yes sir from that on until the last two shots.
Q.  What were the two last shots?
A.  The two last shots were bigger reports.
Q.  Do you know how many shots were fired in all?
A.  No sir I do not.
Q.  Now Mr. Perdue, you say that you were there by Mr. Kerley's during the shooting?
A.  Yes sir.
Q.  What did you do during the shooting or immediately following the shooting?
A.  Well, I stood there until the shooting was over.
Q.  What did you do then?
A.  I walked down the street and crossed the railroad and went over to the right of the stable from here; went over on the street to the right of the stable and met Mr. McGuire, me and him stood there and talked a little and I said to him let's go up there.
Q.  Don't tell the conversation you had with any other party.
A.  Then I went on up to where Mr. Hester was killed.
Q.  Now when you got down and across the railroad here and by the livery stable, who else did you see or what else did you see along that street right here?
A.  There was a good big crowd there in the street had gathered about that time.
Q.  Did you see a two horse wagon hitched here along the street by Mr. Butt's livery stable to a telephone pole or to anything else right along in there?
A.  No sir I never paid any attention to nairy a one, if there was any there I didn't see it.
Q.  You say you went up to the scene of the shooting after that?
A.  Yes sir.
Q.  Did you see Mr. Hester when he fell?
A.  Yes sir.
Q.  When was it that he fell?
A.  When the last shot of the two big ones fired he fell under the last shot.
Q.  Had you seen him before that time?
A.  No sir he was out of my sight.
Q.  You had changed your position had you, do you mean you saw him fall back?
A.  I saw him fall back from the gate on the walk.
Q.  What kept you from seeing up until that time?
A.  There was a high paling fence and shade tree betwixt me and him, I couldn't see him at all.
Q.  You did see him fall after that change?
A.  I saw him as he staggered towards the gate, of course I couldn't tell, he staggered from towards the gate, and before he got to the edge of the concrete street, I could seem him and he eased down and fell on that walk.
Q.  You say you went to where the body was?
A.  I went up close, I didn't go right up to it.
Q.  Who was there at the time you got there?
A.  I can't tell you, there was a big crowd gathered around when I got there.
Q.  Was Mrs. Hester there when you got there?
A.  Yes sir she was sitting down close to the dead body.
Q.  What was she doing?
A.  It seemed like she was trying to take care of him.
Q.  Did you hear her say anything there?
The state objected to any statement made by Mrs. Hester after the difficulty was over with.

I don't see upon what ground, gentlemen, that would be admissible, it would not be admissible as a spontaneous statement and it wouldn't be admissible as a part of the rest.  Mrs. Hester has testified and it does not appear she made the same statement there that she made any where else so as to corroborate her statement.

That is the reason we want to prove it.

In view of the effort here on the part of the prosecution to show a different and contradictory statement made by Mrs. Hester subsequently we think that this is a consistent statement prior to the time.

I have already heard in the absence of the jury other witnesses detail what Mrs. Hester said there.  It is not such a statement as would be corroborative, it was not a repetition of what she claims to have said elsewhere; it was an exclamation independent and disconnected with the other conversation.  I held the matter under advisement until this morning to see if I could admit it.  I don't understand any rule under which it would be admissible to throw any light on the transaction, the statements of an excited woman at the place where her husband was killed.

She was there some time and was talking.

That is your Honor's ruling on that?

I agree with you gentlemen that consistent statements of witnesses made out of court and at a time when there was no reason to falsify, repetition of statements made in court and made out of court would be competent, but this is no repetition, it is not the using the same language, it is disconnected with the other and was merely an exclamation made by a woman over the body of her dead husband, I don't think it would be competent.

Without taking the time of the Court and the jury to retire, the record will show that he will prove substantially the same as the other witnesses.

I take it there will not be a sufficient variance in the proof.

No sir, the thought is the same.

We have this witness' exact words here.

You can put that in later.

The witness would testify that Mrs. Hester said at that time "I told him not to go over there.  I tried to get him not to go.  I begged him not to go over there."

Defendant excepted to the ruling of the Court.

Q.  Mr. Perdue, do you know Leonard Finn, a witness who has testified in this case for the State?
A.  Yes sir.
Q.  Did you see him after that shooting down there by the livery stable?
A.  Yes sir, I saw him a little south of the livery stable.
Q.  When was it you saw him with reference to the shooting how long afterwards?
A.  Why it was two or three hours I reckon.
Q.  I will ask you if in that conversation or in your hearing he didn't say that Al Hester was the gamest man he ever saw, that while that shooting was going on and while Butt was shooting at him and while he was shooting at Butt, he would look around and laugh at him Leonard Finn, that in substance?
A.  Yes sir that is what he said.
Q.  Who heard that Mr. Perdue besides you?
A.  Old man Smith, Mr. Dick Smith, I think he was standing by and heard it.

By Mr. Bowman:
Q.  Mr. Perdue, you were down I believe you say near Kerley's store?
A.  Yes sir.
Q.  The first thing that you heard to attract your attention was some pistol shots?
A.  Yes sir.
Q.  You couldn't see who it was doing the shooting?
A.  No sir I couldn't see any body at all.
Q.  There is a high paling fence that run back of this Butt property here isn't there?
A.  How was that?
Q.  I say, there is a high paling fence back of this Butt property, runs along here at the back of this Butt property?
A.  Yes sir, that is Butt's lot.
Q.  No, here, it is right here?
A.  Well, right along here, and there is a high paling fence across here too.  (Indicating)
Q.  A high paling fence runs across there, where is the gate?
A.  It is here, here is the gate, this is the barn - well, there is a high paling runs along here and across here.
Q.  From this corner down this way and down that way?
A.  Yes sir.  (Indicating)
Q.  Would it be possible or could you see what a person had in their hands, if anything, down by their side, back and behind that paling fence, Mr. Perdue?
A.  I couldn't see any body.
Q.  You didn't even see any body back there behind the gate?
A.  No sir.
Q.  The fence obstructed it?
A.  The fence was betwixt me and him and that shade tree together kept the view off of him.
Q.  Where was the shade tree?
A.  A few feet, ten or twelve feet this side of the gate from where he was right along there.  (Indicating)
Q.  How high was it to the first branches?
A.  It is five or six feet.
Q.  Five or six feet to the first branches?
A.  Four or five feet, or something.
Q.  You couldn't even see that there was a man there through that paling fence?
A.  No sir, I couldn't tell.  I couldn't see him at all.
Q.  You heard the shooting and looked up there?
A.  Yes sir.
Q.  And directly you saw Mr. Hester fall after the last shot fired?
A.  Yes sir, he staggered from the gate, that is the first I seen of him, I don't know how close to the gate he was, but the first I seen of him he was staggering and fell across the walk.
Q.  He fell right across the walk here at the upper corner?
A.  He fell across the walk from the gate.
Q.  At which corner, do you mean right out in front of it?
A.  There is where the gate was.  Yes sir.
Q.  Is this the concrete street?
Q.  Yes sir right along there.
A.  Well, he staggered from there and fell on the edge of the walk there.
Q.  I am trying to get the point of the gate, about the middle of the gate or the east side or the west side?
A.  I was too far off to tell that.
Q.  He fell clear across the walk, his head was at the outer edge?
A.  No sir his head showed to me, his head and shoulders about that much lay on the walk.
Q.  About that much lay on that walk?  (Indicating)
A.  Yes sir.
Q.  You and Mr. McGuire were talking down there?
A.  Yes sir.
Q.  You didn't pay any attention, you were watching what was occurring up here wasn't you Mr. Perdue?
A.  Do you mean when me and Mr. McGuire were there?
Q.  Yes.
A.  No, not particular.
Q.  You had been?
A.  Yes sir.
Q.  You didn't look to see whether there was any wagon over next to the telephone post?
A.  No sir.
Q.  You wouldn't swear there was or wasn't a wagon there behind the stable at the telephone post?
A.  No, I couldn't make that statement.
Q.  You say you were talking to Leonard Finn after that and he said Al was the gamest man he ever saw?
A.  Yes sir.
Q.  That he would shoot at this fellow and look towards him and laugh?
A.  Yes sir "look towards me and laugh".
Q.  While he was shooting?
A.  He didn't say that while he was shooting.
Q.  Who did you say was present?
A.  Old man Smith, Dock they call him.
Q.  Who else was present?
A.   I don't think there was any body else.
Q.  Just you three were present?
A.  Yes sir.
Q.  Where does Mr. Dick Smith live?
A.  About a mile of Portland.
Q.  Was he here to day?
A.  I haven't seen him.
Q.  Did you see him here Saturday?
A.  Yes sir.
Q.  About how many feet out in the walk would you say Mr. Hester's body lay?
A.  You mean how many feet over on the concrete?
Q.  Yes sir.
A.  I would say something like three feet.

Re-Direct Examination

Q.  Mr. Perdue, did I understand you to say that immediately upon the first shot being heard by you you looked up that way?
A.  Yes sir it drawed my attention up there.
Q.  Now at that time when you looked up there, did you see Mr. Hester on the sidewalk by Mr. Kerley's cross road there into his yard?
A.  No sir.
Q.  Or on the sidewalk?
A.  No sir there wasn't a man in my sight when the first gun fired.
Q.  Could you have seen him from where you were if he had been there on that concrete walk by the gate?
A.  Yes sir, I could have seen a man standing there.
Q.  You never saw him at all until he fell out from that recess?
A.  I never saw either one until he staggered from the gate and fell.
Q.  You say you looked up immediately when it shot?
A.  As quick as the first gun shot, I knew what it was.
Q.  Are you any kin to Wiley Pardue who testified for the state?
A.  No sir it is a different name, his is "Par" and mine is "Per".
Q.  You are an uncle of Hub Perdue?
A.  Sir.
Q.  You are an uncle of Hub Perdue, the famous ball pitcher?
A.  Yes sir.

Further this deponent saith not.

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

Direct Examination
By Mr. Durham
Q.  This is William Parks, is it?
A.  Yes sir.
Q.  Where do you live Mr. Parks?
A.  About a mile and a half south of Fountain Head.
Q.  Do you know Mr. Leonard Finn?
A.  Yes sir.
Q.  I will ask you if you had a conversation with Mr. Finn at any time after the killing of Mr. Hester at Portland?
A.  No sir.
Q.  If so, where?
A.  I didn't have any conversation with Mr. Finn.
Q.  Did you hear him make a statement?
A.  Yes sir.
Q.  How soon after the killing?
A.  This was on the morning of the fourth of July.
Q.  Where was this statement made?
A.  Under the shed of Mr. Josh Davis' blacksmith shop.
Q.  I will ask you if Mr. Finn didn't state there in your presence on that occasion that Mr. Hester was the bravest man he ever saw, that while he was shooting at Mr. Butt and Mr. Butt was shooting at him that he looked down at him and laughed?
A.  I don't remember Mr. Finn saying the bravest man, but he said the funniest thing to him was that Mr. Hester would shoot and look around at us and laugh.
Q.  That was on the fourth of July?
A.  Yes sir, he didn't seem to insinuate anything only he said--

Never mind what he insinuated.

Cross Examination waived.
Further this deponent saith not.


State vs. Virgil Butt, Part V

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