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The State Vs. Virgil Butt
1915 - Part VII

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 J. Hinson, Lone Lee, Herbert Devasher, Fred Gossett, Jack Denning, Dick Smith, E. H. Roark, John Civils, J. R. Faullin, and Tom Jones  

J. HINSON
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Bass:

Q.  Do you live in Portland?
A.  Yes sir.
Q.  Were you in Portland the day that Mr. Hester was shot?
A.  Yes sir.
Q.  Where were you?
A.  I was over in Mr. Chowney's produce house.
Q.  Where were you?
A.  Inside of the door when it commenced.
Q.  How far from the door?
A.  Somewhere just inside.
Q.  That is on Main Street?
A.  Yes sir.
Q.  Look at this map, here is the railroad and this is the depot, here is Main Street over here where there are a lot of buildings, stores, and business houses on either side, here is Butt's livery stable, here is the printing office and here is High Street, the way to the shooting, and here is Russell Street runs around up this way, where is this poultry house?
A.  Right along up this way on Main Street.
Q.  A few doors from the corner?
A.  Four or five.
Q.  You say you were just inside of the front door?
A.  Yes sir.
Q.  Did you have any trouble in hearing these shots?
A.  No sir I heard them.
Q.  What did you do?
A.  I run out on the street.
Q.  Did you run when the first one fired?
A.  yes sir after it fired I ran out.
Q.  You started at once?
A.  Yes sir.
Q.  Where did you run to?
A.  I came down to the corner there at the corner store.
Q.  Where were you about the time the last shot was fired?
A.  I was right along about even with that door.
Q.  Had you gotten to a point where you could see?
A.  No sir I never saw the last shot.
Q.  You didn't see the last shot?
A.  No sir.
Q.  How many shots would you say were fired in all?
A.  Somewhere about fifteen or sixteen I suppose.
Q.  Could you tell any difference in those shots?
A.  Yes sir there was two different guns, two different reports.
Q.  You mean one louder than the other?
A.  Yes sir.
Q.  Which one came first?
A.  The small one.
Q.  How many shots would you say was fired by the small one before you heard the loud one?
A.  There was three or four.
Q.  After you heard the loud one did you hear the small one also?
A.  Yes sir they shot together then, first one and then the other.
BY JUDGE ANDERSON:
We want to offer that same evidence by this witness as to Mrs. Hester's statement, substantially the same as the others.

CROSS EXAMINATION
By Mr. Bowman:

Q.  You said that you didn't see any of the shooting?
A.  No sir.
Q.  Was there anything at the time to call your attention to the shots?
A.  Just hearing them was all.
Q.  You think there was three shots made first?
A.  Somewhere two or three.
Q.  How long a pause was there between those first three shots and the next one?
A.  Well, it wasn't so very long, just a little pause.
Q.  Just enough to tell the pause was all?
A.  Yes sir.
Q.  Just enough that you could tell that there was a pause?
A.  Yes sir about like that.

Re-Direct Examination

Q.  Where do you live now?
A.  Portland, my father does, I am staying at Tullahoma.
Q.  Where is that?
A.  Seventy miles below Nashville.

Re-Cross Examination

Q.  What is your age?
A.  Twenty one.

BY MR. BASS:

Q.  Are you working with the bridge gang?
A.  No sir telephone gang.

BY A JURYMAN

Q.  I want to know if there is two produce houses here.

BY MR. BASS:

Q.  There is another produce house that fronts up here on the north of the depot?
A.  Yes sir.
Q.  This one you were at was four or five doors from the corner fronting on Main Street?
A.  Yes sir, that is where I was.
Q.  This is on Main Street some four or five doors west of the corner there next to the railroad?
A.  Yes sir.
Q.  The other poultry house faces the west and is on the east side of the railroad and north of the depot?
A.  Yes sir.
Q.  That is Mr. Hester's or Naive-Spillers?
A.  Yes sir.

Further this deponent saith not.

LONE LEE
called for the defendant, being duly sworn, deposed as follows:
By Mr. Bass:
Q.  What is your name?
A.  Lone Lee.
Q.  Mr. Lee, where do you live?
A.  I live in the 13th District of Sumner County.
Q.  How far do you live from Portland?
A.  About seven miles.
Q.  Were you in Portland on the day Mr. Al Hester was shot?
A.  Yes sir.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  Where were you at the time?
A.  I was on the street out there right south of Mr. Kerley's store.
Q.  South of Mr. Kerley's store?
A.  Yes sir.
Q.  Mr. Kerley's store is on the corner isn't it?
A.  Yes sir.
Q.  That is across the railroad on the west side of the railroad?
A.  Yes sir.
Q.  Where were you with reference to Kerley's store?
A.  Well, I was over near the corner of the street next to the railroad.
Q.  Were you on Main Street or not?
A.  Yes sir.
Q.  And near the corner?
A.  Yes sir.
Q.  Could you hear the shots distinctly?
A.  Yes sir I could hear them very plainly.
Q.  About how many shots would you say you heard in all, just estimate it?
A.   I didn't count them of course, it sounded like fifteen or a dozen shots.
Q.  Well, what did you do when you heard the shots?
A.  Why when I heard the first shot I came out of Mr. Kerley's store,  had a couple of cans of oil in my hand, me and Mr. Vernon Kerley came out together, I had the cans in my hand and I set the cans down in a buggy standing across the street and I run in that direction towards where the shooting was.
Q.  Across the railroad?
A.  Yes sir across the railroad, I run on over there but before I got over there the shooting ceased.
Q.  Could you tell any difference in those shots in the sound of them?
A.  Yes sir, it seemed like a big gun and a little one.
Q.  Two different kinds you think?
A.  Yes sir.
Q.  How did they come Mr. Lee?
A.  Well there was two or three shots fired, it seemed like from one gun and then there was another put in.
Q.  Which one fired first?
A.  The little one; and then the other one didn't seem to shoot so fast as the little one.
Q.  Yes, that is right, and you heard two or three shots from the little gun?
A.  Yes sir.
Q.  And then they both put in?
A.  Yes sir.
Q.  Do you mean by that both began shooting?
A.  They both began shooting at the same time, but it seemed like the big one didn't shoot as fast as the little one.
Q.  Did you see either one of the parties shooting?
A.  No sir I did not.
Q.  Did you see Mr. Hester before he fell to the ground?
A.  Yes sir.
Q.  Where were you when the shooting closed?
A.  I was right about the corner of the picture gallery, over there on the same side of the street that Mr. Hester fell on, I wasn't looking up far enough that way, I thought the sounds were closer to me and I was looking back this way on each side.
Q.  Mr. Lee, look at this map, here is the railroad you see runs across here, Nashville is down this way, here is Main Street, Mr. Kerley's store would be on the corner, here is Butt's livery stable and this is the picture gallery?
A.  Yes sir.
Q.  When the shooting took place you were near this corner?
A.  Yes sir, right close to a big telephone pole there.
Q.  And you ran and came to the corner by the picture gallery?
A.  Yes sir.
Q.  But you were not looking at this particular place?
A.  No sir, it seemed to me the shots were closer to me and I was looking on each side, there was a man right in front of me spoke and said they killed a man and I looked at him and saw he was looking further and I looked around and seen Mr. Hester laying on the pavement.
Q.  Did you see any wagon in front of you?
A.  No sir.
Q.  Did you see any two horse wagon along by the side of the livery stable.
A.  Nor sir I never noticed any there.

BY MR. BASS:
We offer this witness with reference to the testimony of Mrs. Hester which your Honor excluded.

CROSS EXAMINATION
BY MR. BOWMAN:
Q.  You didn't go up there?
A.   I went up to where Mr. Hester was laying.
Q.  You didn't look to see whether there was a wagon hitched at the corner at the back end of the livery stable did you?
A.  I wasn't looking particularly for wagons, I was looking to see if I could see what was happening.
Q.  You won't swear there wasn't a wagon there?
A.  I didn't see any, there might have been one there.
Q.  You just didn't notice it because you were looking for the shots?
A.  I didn't see any wagon.
Q.  How many shots did you hear first?
A.  Of the first gun?
Q.  Yes sir.
A.  About three shots I think.
Q.  How long was it from the time you heard those three shots until the next shooting began?
A.  It wasn't but a might little time.
Q.  Almost instantly?
A.  Might quick,  didn't run but a few steps until it commenced again.
Q.  Did you take as many as three steps?
A.  I guess I did.
Q.  Did you take over three?
A.  I can't tell, I didn't count the steps, I was in a hurry to get over there to see what was the matter, it was a very short interval.
Q.  Almost instantly?
A.  It was a short space of time.
Q.  Which gun began at the second shooting did the little gun commence after that pause?
A.  It seemed like they commenced together.
Q.  Your idea is after the first three shots and the other shots started in the little one and big one were both shooting?
A.  Yes, they were both shooting.
Q.  Did you notice any difference from that on in the shots, any other different shots to attract your attention?
A.  Well, right on the last I heard one that sounded a little plainer, but that was after this little gun ceased, it seemed like the little one quit, and just one shot out of the big one.
Q.  Then you heard a still louder report?
A.   I don't know whether it was out of a pistol or not, I don't know whether it was out of a different one or not.
Q.  There wasn't enough difference to tell?
A.  There wasn't much difference in them.

Re-Direct Examination.

Q.  You mean there wasn't enough difference between that last one and the big ones you had been hearing to tell?
A.  No, I couldn't swear there was any difference in them.
Q.  But you could tell the difference between the little gun and any other gun?
A.  Yes sir I could tell that very plain, that there was two firing.
Further this deponent saith not.

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

Direct Examination
By Mr. Durham:
Q.  Mr. Devasher, where do you live?
A.  Portland.
Q.  Where were you on the day Mr Hester was shot?
A.  I was at the planing mill.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  About how many shots did you hear in all?
A.  There was some fifteen or sixteen.
Q.  How did these shots sound Mr. Devasher, state to the jury?
A.  There was three small ones and the others mixed up.
Q.  Three small ones?
A.  Yes sir.
Q.  What do you mean by the others?
A.  A large one and a small one.
Q.  After the three small shots you say they were mixed?
A.  Yes sir.
Q.  They were mixed with large and small?
A.  Yes sir.
Q.  How many of these large and small did you hear after those three you say about fifteen in all?
A.  Yes sir.
Q.  Did you hear those distinctly Mr. Devasher?
A.  Yes sir.
Q.  About how far away were you from the shooting?
A.  About 140 yards.
Q.  I believe you say you were at the planing mill just north of this place?
A.  Yes sir.
Q.  How did these first shots sound with reference to any particular make of pistol?
A.  Sounded like an automatic.
Q.  Are you familiar with the sound of an automatic pistol?
A.  Yes sir.
Q.  After the shooting Mr. Devasher did you go over to the scene of the killing?
A.  Yes sir.
Q.  How soon?
A.  Well, they just got through when I started.
Q.  You started immediately?
A.  Yes sir.
Q.  When you got there who did you find at the gate?
A.  Mr. Jim Finn and Leonard and Mrs. Hester.
Q.  They were the only three there at the time?
A.  There was several that came right away.
Q.  Did you hear at the gate Mr. Leonard Finn make any statement to Mrs. Hester or any one as to who fired the first shot?
A.  I did.
Q.  You heard him make a statement there to you and Mrs. Hester?
A.  Yes sir.
Q.  I will ask you if Mr. Leonard Finn didn't state to you there at that time in your presence I mean, that Mr. Hester fired the first shot?
A.  He did.
Q.  And that he walked up to the gate to do so?
A.  Yes sir.
Q.  I will ask you if Mr. James Finn didn't state there at that time that Mr. Hester fired the first shot?
A.  Yes sir.
Q.  That he walked up tot he gate and fired at Mr. Butt?
A.  Yes sir.
Q.  I will ask you if he didn't also show you and the other parties the powder burn on the side of the gate post?
A.  He did.
Q.  Where is your father today Mr. Devasher?
A.  He is at home.
Q.  Is he able to come to day?
A.  No sir.
Q.  He is under subpoena here?
A.  Yes sir.
Q.  By the defendant?
A.  Yes sir.
Q.  He has been in attendance here?
A.  Yes sir.
Q.  Your father's name is what?
A.  A. L. Devasher.
BY MR. DURHAM:
We offer this witness on the same question as to the statement made by Mrs. Hester.

CROSS EXAMINATION
BY MR. BOWMAN:
Q.  Has your father been here all this court?
A.  He has been here two days.
Q.  You say at the time this shooting took place you were at the planing mill?
A.  Yes sir.
Q.  Was the saw in operation?
A.  No sir.
Q.  What were you doing?
A.  Rolling some logs down to the saw mill.
Q.  Who else was there?
A.  There was about eight of us, Fred Gossett, Arnie Gossett.
Q.  Jim Hill there?
A.  Yes sir.
Q.  Any of those parties here at this court?
A.  Yes sir I think they have been here every day.
Q.  After you heard the first shooting what did you do?
A.  I stayed there until it got through.
Q.  Then you went over to where it occurred?
A.  Yes sir.
Q.  Mr. Hester's body was on the walk?
A.  His shoulders were on the walk.
Q.  Wasn't the blood about the middle of the sidewalk?
A.  No sir.
Q.  Did you notice the blood on the sidewalk?
A.  They had just raised him up.  I noticed some blood on his shirt, I didn't notice any on the sidewalk.
Q.  Then when you got there they had raised him up on the edge of the pavement?
A.  Yes sir.
Q.  There were quite a number around there when Mr. Leonard Finn made this statement?
A.  There was four of us when I got there.
Q.  This powder burn you spoke of was on the west side of that post?
A.  Yes sir.
Q.  On that side nearest the inside edge towards the barn?
A.  Yes sir.
Q.  It was wider in front than it was at the back side wasn't it Herbert?
A.  The powder burn?
Q.  Yes sir.
A.  It was just there in a spot.
Q.  Didn't it kind of flare out from the back edge of the post?
A.  Yes sir.
Q.  Herbert, you say you have had some experience with automatic pistols?
A.  Yes sir.
Q.  When you once clamp the handle they continue to shoot until the magazine is empty?
A.  If you hold it.
Q.  If you hold the handle, you don't have to pull the trigger?
A.  Some of them you have to pull the trigger.
Q.  I am talking about an automatic, so long as you hold the handle it shoots if you press on it?
A.  Yes sir.
Q.  Do you know where this telephone post is at the rear end of that livery stable?
A.  Yes sir.
Q.  There is a little guy wire post site against the stable?
A.  Yes sir.
Q.  How far is it from the corner of the livery stable to the telephone pole?
A.  Between eleven and twelve feet.
Q.  You measured that for Mr. Durham and at his request?
A.  Yes sir.
Q.  Plenty of room to drive a wagon between the post and the stable?
A.  Yes sir.

Re-Direct Examination

Q.  There are some automatics that when you let up pressing they quit?
A.  Yes sir.
Q.  They don't shoot nine times, there is a way of stopping them?
A.  Yes sir.
Q.  I will ask you if Leonard Finn didn't state he saw Mr. Hester shooting?
A.  Yes sir.
Q.  I will ask you if Mr. Jim Finn didn't also state that he saw Mr. Hester shoot the first shot?
A.  Yes sir.
Further this deponent saith not.

FRED GOSSETT
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Bass:
Q.  What is your name?
A.  Gossett
Q.  Fred Gossett?
A.  Yes sir.
Q.  Where do you live?
A.  Portland.
Q.  Were you there on the day Mr. Hester was shot?
A.  Yes sir.
Q.  Where were you?
A.  Over at the planing mill.
Q.  Did you hear the shots?
A.  Yes sir.
Q.  Could you hear them distinctly?
A.  Yes sir I could hear them all right.
Q.  About how many did you hear?
A.  Twelve or fifteen, something like that.
Q.  Could you tell any difference in the sound of them?
A.  Yes sir some.
Q.  How did they come?
A.  Well, the little one sounded like it came first to me.
Q.  How many little ones came first before you heard the other ones?
A.  It sounded like two or three.
Q.  Then you heard another one?
A.  Yes sir.
Q.  Did you hear the little one any more?
A.  No sir I didn't hear it any more then.
Q.  Did you hear it any more later?
A.  Yes sir I heard it when the other one commenced shooting.
Q.  Both of them began shooting then?
A.  Yes sir.
Q.  You heard three from the little one and then a pause and then the big one, and both of them?
A.  Something like that I guess.
Q.  Something like three you say?
A.  Yes sir.
Q.  Two or three?
A.  Yes sir.

CROSS EXAMINATION BY MR. BOWMAN
Q.  Was there anything to cause you to notice those shots at the time?
A.  Nothing only listening.
Q.  You just heard them?
A.  Yes sir.
Q.  There was two or three shots made first?
A.  Yes sir.
Q.  How long before the next shot was made?
A.  Something like five seconds.
Q.  How many was made then?
A.  I just can't tell you how many there was now.
Q.  Which gun did you hear after the five seconds, the big one or the little one?
A.  I heard both of them then.
Q.  Which did you hear first or did they both begin at the same time?
A.  I can't tell you which one then.
Q.  You can't tell Fred which one now began after you heard the first one?
A.  No sir.
Q.  You heard one big loud one on the last?
A.  Yes sir.
Q.  That was bigger than any of them?
A.  It sounded a little bigger, it wasn't so awful big.
Q.  How old are you Fred?
A.  Twenty five.
Further this deponent saith not.

JACK DENNING
called for the defendant, being duly sworn, deposed as follows,
Direct Examination
By Mr. Bass:

Q.  What is your name?
A.  Denning.
Q.  What is your first name?
A.  Jack.
Q.  Where do you live Jack?
A.  Portland.
Q.  Were you there the day of the shooting?
A.  Yes sir.
Q.  Where were you?
A.  I was sitting over there in Mr. Booker's door when the shooting first started.
Q.  Where is that?
A.  Next door to Kerley's, second door from the station.
Q.  You mean the store?
A.  Yes sir.
Q.  The second door from the corner, Kerley's is on the corner isn't it?
A.  No it is the next door from Kerley's.
Q.  You were the second door on Main Street from Kerley's corner?
A.  The first door from Kerley's.
Q.  Were you inside or outside?
A.  Outside.
Q.  Could you hear the shots distinctly?
A.  Yes sir.
Q.  How many shots do you suppose you heard in all?
A.   I didn't count them,  suppose about a dozen.
Q.  Could you tell any difference in the sounds of those guns?
A.  Yes sir.
Q.  How did they come, which one came first the smaller sound or larger?
A.  The small.
Q.  How many small shots do you think you heard before you heard another gun begin?
A.  Two or three.
Q.  How did you hear both of them together after that or not?
A.  I heard both of them together.
Q.  How did they come after you heard the small ones?
A.  Big ones and little ones.
Q.  Did you go over there after the shooting?
A.  Yes sir.
Q.  Did you see old man Jim Finn and Leonard there?
A.  Yes sir.
Q.  Did you go right on over?
A.  Yes sir.
Q.  I will ask you if you heard either one of them make a statement as to who shot first?
A.  Yes sir.
Q.  I will ask you if either one of them said there shortly after the shooting, and while in your presence at the scene of the shooting, that Mr. Hester shot first?
A.  Yes sir, Mr. Finn or Leonard one said that, I can't say which one.
Q.  Were they both there at the time talking about it?
A.  Yes sir.
Q.  And one or the other said it and you don't know which one?
A.  No sir I don't know which one.

CROSS EXAMINATION
By Mr. Bowman:
Q.  Jack, you heard two or three shots first?
A.  Yes sir.
Q.  And then in two or three seconds the big one or little one commenced?
A.  I don't know, I know I heard two or three and then I heard the big one.
Q.  That was almost instantly?
A.  Yes sir.
Q.  And then after hearing the big one you heard the little one again?
A.  I heard big ones and little ones.
Q.  You heard one big loud one on the last?
A.  Yes sir, I don't know whether it was a loud one or not it had a dead report.
Q.  It was different from any of the other shots that had been made?
A. Yes sir.
Q.  How old are you son?
A.  Sixteen.

BY MR. GUILD:
Q.  Where do you work?
A.  Consumers drugstore.
Q.  A clerk there?
A.  Yes sir.
Further this deponent saith not.

DICK SMITH
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Guild:
Q.  What are you initials?
A. H. D.
Q.  Where do you live?
A.  About a mile east of Portland.
Q.  Are you known as Dick Smith?
A.  Yes sir.
Q.  What is your business Mr. Smith?
A.  Farmer.
Q.  Were you in Portland on the day of this shooting?
A.  I was there in the afternoon.
Q.  Did you see Mr. Jim Finn or Mr. Leonard Finn there upon that occasion?
A.  I saw Mr. Leonard Finn.
Q.  Did you hear him say anything about the shooting?
A.  Yes sir.
Q.  I will ask you to state if in that conversation Leonard Finn said that Al Hester during that shooting was the gamest man he ever saw?
A.  Yes sir.
Q.  Whenever he shot or the shots were fired he looked around and laughed?
A.  Yes sir that he turned around to him and laughed, or looked down at him and laughed, something of that kind.
Q.  What is your age Mr. Smith?
A.  Fifty two.

Cross Examination waived.
Further this deponent saith not.

E. H. Roark
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Guild:
Q.  This is Mr. E. H. Roark, is it?
A.  Yes sir.
Q.  Where do you live?
A.  Portland.
Q.  What is your age and occupation?
A.  I am forty four years old and I have been farming all my life up until lately.
Q.  Were you living at Portland at the time of this shooting of Mr. Hester?
A.  Yes sir.
Q.  Were you there at the time of the shooting?
A.  At Portland, yes sir.
Q.  Did you hear the shooting?
A.  No sir.
Q.  Did you go to the scene of the shooting afterwards?
A.  I went up there shortly after the shooting.
Q.  Did you hear Mr. James Finn make a statement about the shooting?
A.  I did.
Q.  I will ask you if he didn't state up on that occasion that Hester fired the first shot?
A.  He did.
Q.  Did you hear Leonard make a statement?
A.  No, I don't know as I did.  I can't say as I did.
Q.  Had the body been moved at that time?
A.  Yes sir.
Q.  How long after the shooting was this conversation that you heard Mr. James Finn make that statement?
A.  I can't say, it was not very long, it was shortly after they moved Mr. Hester.
Q.  Was it before the Coroner's inquest was held?
A.  Yes sir.

CROSS EXAMINATION
By Mr. Bowman:
Q.  You were in Mr. Crow's store right up here wasn't you?
A.  Yes sir.
Q.  And did not hear any of the shooting?
A.  No sir I was reading a paper is the reason I didn't hear any of the shooting.
Q.  The front door was open to that store?
A.  Yes sir.
Q.  How long do you suppose it was after the shooting that you got over there Roark?
A.  I wasn't very long.
Q.  About five minutes?
A.  No I guess not, I went right straight on, then I went over home and came back.
Q.  It was some two or three minutes you were there?
A.  I went right on straight over home and came back the second trip.
Q.  When you got over there old man Finn and Leonard was over there?
A.  I don't remember seeing Leonard there at all.
Q.  You never heard him make any statement in the presence of any body about who fired the first shot?
A.  No sir.
Q.  You heard old man Jim say Hester fired the first shot?
A.  Yes sir.
Q.  That was the way you understood it?
A.  Yes sir.
Q.  Have you and the deceased Al Hester every had any trouble?
A.  Well we have had trouble but we were on good terms, I went to Nashville with him the day before he was killed.
Further this deponent saith not.

JOHN CIVILS
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Bass:
Q.  Is your name John Civils?
A.  Yes sir.
Q.  Where do you live?
A.  I live at Portland.
Q.  Were you in Portland on the day Mr. Hester was shot?
A.  Yes sir.
Q.  Where were you?
A.  I was over in front of Kerley's store.
Q.  Do you mean the store on the corner of Main Street near the railroad?
A.  Yes sir.
Q.  Did you hear the shots?
A.  Yes sir.
Q.  Did you hear them distinctly?
A.  Yes sir.
Q.  Could you tell any difference in those shots, in the sound of them?
A.  Yes sir, some sounded louder than others.
Q.  Which shots sounded first, the small ones or the loud ones?
A.  The small ones.
Q.  How many small shots did you hear before you heard the loud shots?
A.  Three.
Q.  After that did you hear any small shots and loud ones or not?
A.  I heard the loud ones and then small ones.
Q.  How many do you think you heard in all?
A.  I don't know, about fifteen or sixteen.

CROSS EXAMINATION
By Mr. Bowman:
Q.  John, you heard three small shots you say first?
A.  Yes sir.
Q.  And almost at once you heard the big ones?
A.  Heard what?
Q.  Heard the big shot almost at once, after you heard the three little shots you heard the loud ones?
A.  Yes sir a loud one and a small one after that.
Q.  And the big one was fired almost immediately after you heard the three little ones?
A.  I don't know.
Q.  About how long was it?
A.  Something like a second.
Q.  And then the last was a big one wasn't it?
A.  Yes sir.
Q.  Where did you say you were John?
A.  In front of Kerley's store.
Q.  You know Mr. William Civils don't you?
A.  Yes sir.
Q.  Are you related to him?
A.  Yes sir.
Q.  What is your relation?
A.  He is my daddy.
Q.  Didn't you tell your father that day or the next day or a few days after that that you were at Naive-Spillers poultry store?
A.  No sir if I did I don't remember it.
Q.  Did you tell him that?
A.  If I did I don't remember it.
Q.  Didn't you tell your father that at the time of the shooting you were over there at that poultry house?
A.  No sir.
Re-Direct Examination
Q.  How old are you?
A.  Twenty one.
BY MR. BOWMAN:
Q.  You were working at the poultry house?
A.  Yes sir.
BY MR. BASS:
Q.  What were you doing up there on Kerley's corner?
A.  Mr. Falright sent me up there after some taters.
Further this deponent saith not.

J. R. FAULLIN
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Mr. Bass:
Q.  Where do you live?
A.  Nashville.
Q.  Where were you living last July?
A.  Portland, Tennessee.
Q.  Are you a brother of W. T. Faullin who was on the stand this morning?
A.  Yes sir.
Q.  Were you there the day Mr. Hester was shot?
A.  Yes sir.
Q.  Where were you?
A.  Something like a quarter of a mile from there working on Mr. Gil Butt's house.
Q.  Where abouts were you on the house?
A.  On top of the roof on the north side.
Q.  Who were you working for?
A.  Mr. Fowler.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  Could you hear it plainly from where you were?
A.  Yes sir.
Q.  How many shots did you hear in all Mr. Faullin?
A.  I guess there was some twelve or fifteen shots made, I can't tell exactly how many there was.
Q.  Could you tell any difference in the sound of those shots?
A.  Yes sir.
Q.  Tell how they came?
A.  The first three shots were from a small gun, and then there was something like a break in the shooting just an instant maybe something like that, and then the little gun opened again, the same gun that done the first shooting and then the big gun commenced then and they exchanged, you couldn't tell how many shots there was.
Q.  You say you could hear them plainly?
A.  Yes sir.
Q.  Did you ever fire an automatic or hear an automatic fired?
A.  Yes sir.
Q.  More than once or not?
A.  Yes sir I heard them more than once.
Q.  What kind of a gun did these first shots you heard sound like?
A.  I thought they were from an automatic, from the report, they were altogether a different sound from a common gun.
Q.  Now did you go up to the scene of the shooting after that?
A.  Yes sir.
Q.  How soon did you go up there?
A.   I guess maybe something like ten or fifteen minutes, we worked on and Mr. Fowler said something about let's go up there and we got down off of the roof, my brother and myself and went on up there.
Q.  You and your brother went on up there?
A.  Yes sir and Mr. Fowler.
Q.  Did you see Mr. Jim Finn or Leonard Finn there?
A.  Yes sir.
Q.  Did you hear either one or both say anything about who fired the first shot?
A.  I heard Mr. Jim Finn say something about it.
Q.  State whether or not he said there at that time in your presence that Mr. Hester fired the first shot.
A.  He said that Mr. Hester fired the first three shots.
Q.  I will ask you if he pointed to the powder burn on the gate post and said he stood here and took aim at this gate post?
A.  Yes sir that is what he said.
Q.  Did he show you the powder burn?
A.  Yes sir.
Q.  That was Mr. James Finn, did you hear Mr. Leonard Finn say anything about it?
A.  No sir I didn't hear him say anything about it.

CROSS EXAMINATION
By Mr. Bowman:
Q.  What is your business now?
A.  Carpenter.
Q.  You were about a quarter of a mile away when you heard these first shots?
A.  Something like that.
Q.  You heard three little shots?
A.  Yes sir.
Q.  And then just in an instant you heard little shots again?
A.  Yes sir.
Q.  You are positive about that?
A.  Yes sir.
Q.  Sure about it?
A.  Yes sir.
Q.  And then you heard the big shots?
A.  Yes sir.
Q.  How was the next shots?
A.  The little gun and the big one was exchanging shots.
Q.  On the last you heard a louder report still?
A.  No sir I did not.
Q.  You didn't hear a louder report on the last?
A.  No sir, it sounded like it was in a barrel, something like that, but I thought it was the same gun.
Q.  Are you related to Virgil Butt?
A.  No sir.
Q.  Related to his wife?
A.  No sir.
Q.  Whose house were you working on?
A.  Mr. Gil Butt
Q.  Is he related to Virgil Butt?
A.  I don't know whether he was or not.
Q.  What were you doing on the house?
A.  Shingling.
Q.  Any body else working on the house with you?
A.  Me and my brother.
Q.  You were both nailing?
A.  No sir.
Q.  What were you doing?
A.  We had just shingled out a couple of lines and struck a couple of lines and just laid the line down when the shooting began.
Q.  You didn't hear Leonard Finn make any statement up there at all?
A.  No sir.
Q.  You saw Leonard there?
A.  Yes sir I seen him.
Q.  How long were you there Faullin?
A.  I can't tell you how long.
Q.  Ten or fifteen minutes?
A.  Something like that.
Q.  During that whole time you were there you never heard Leonard Finn say anything about who fired the first shot?
A.  No sir I didn't hear him.
Q.  If he had made a statement you could have heard him?
Objected to.
Q.  How far were you from him?
A.  I can't say.
Q.  You were right in there together in the little narrow passageway, you were in there examining where those shots struck?
A.  I don't know whether he was there at the time or not but I saw him there.

Re-Direct Examination
Q.  You say you were working on Gil Butt's house, were you working for Mr. Butt?
A.  No sir I was working for Mr. C. C. Fowler.
Q.  You had nothing to do with Mr. Butt?
A.  No sir.
Q.  How old are you?
A.  Twenty nine years old.
Further this deponent saith not.

TOM JONES
called for the defendant, being duly sworn, deposed as follows:
Direct Examination
By Judge Anderson:
Q.  Mr. Jones, what is your name?
A.  T. L. Jones
Q.  Where do you live?
A.  At Portland.
Q.  How old are you?
A.  Twenty eight
Q.  Were you in Portland on the day of the shooting or killing of Mr. Hester?
A.  Let's see, I wasn't up what you would call right in town in the stores or dwellings, but I was inside of the corporate limits.
Q.  About how far from the killing?
A.  I would judge something near a quarter of a mile I expect.
Q.  Did you hear the shooting?
A.  Yes sir.
Q.  How many shots did you hear altogether?
A.  Well, that would be hard to tell, I heard something I judge any where from thirteen to seventeen shots I suppose.
Q.  Was there any difference in the way the shots sounded?
A.  I thought so.
Q.  Well, were several of them louder than the others?
A.  Yes sir.
Q.  Now describe the first shots you heard?
A.  The first two shots went spat, spat, quick short shorts, then there was a pause something like three or four seconds, then there was another quick short shot like the first two, then there was a loud shot and small one, and a loud shot and a small one until the last two shots and they were heavier.
Q.  You mean by that these first three shots, these spat shots came from the same pistol?
A.  Yes sir they sounded alike.
Q.  And they alternated, mixed up?
A.  Yes sir.
Q.  And the last two shots you say seemed to be heavier than the others?
A.  Yes sir.
CROSS EXAMINATION
By Mr Bowman:
Q.  At the time you say you were about a quarter of a mile away?
A.   I suppose I was.
Q.  Where were you?
A.  Out on Uncle Bill Jones farm.
Q.  What were you doing?
A.  Cutting bean poles.
Q.  Any body with you?
A.  No sir.
Q.  That is west of Portland?
A.  Yes sir.
Q.  The first thing that attracted your attention was two small shots?
A.  Yes sir.
Q.  And in another second you heard three more?
A.  I didn't say that, I said something like that and four or five shots.
Q.  Didn't you state in a second was another small shot and then another small shot and a loud one?
A.  Yes, that is what I stated.
Q.  And then they both began?
A.  Yes sir.
Q.  And the last two shots seemed bigger than any of them?
A.  They seemed heavier to me.
Q.  This is east and this is the depot and here is Main Street, you were out over in this part of Portland beyond the school house?
A.  I was west of the school house.
Q.  On what road were you?
A.  I wasn't on any road at all.
Q.  Near what road?
A.  Near the road that leads out from Portland to what they call the Austin settlement.
Q.  Whose farm did you say you were on?
A.  Uncle Bill Jones, lives there, it is his and his wife's.
Further this deponent saith not.

JOHN CIVILS
recalled for further cross examination.
By Mr. Bowman:
Q.  Just two or three days after this shooting in Portland didn't you tell M. E. McQuestion that you didn't hear the shots that you were up at the poultry house?
A.  No sir.
Q.  Did you tell him that you were at the poultry house at the time of the shooting?
A.  I don't remember seeing him.
Q.  Did you tell him that or not?
A.  I told you I didn't.

By Mr. Bass:
Q.  You say you were after taters?
A.  Yes sir.
Further this deponent saith not.

BY JUDGE ANDERSON:
If your Honor please, we had a number of other witnesses that we have not been able to get here, their evidence is merely accumulative though on this question of shots, so we close with the exception, gentlemen, I believe you all called for the pistols, they are in Mr. Durhams office and we will bring them over whenever you want them.
BY MR. BOWMAN:
We want them now.

The pistols were produced and marked Exhibits to the record.


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