Source: TSL&A Microfilm
Loose Record #4520
Transcribed by Jan J. Barnes
State of Tennessee vs. Virgil Butt - Affidavit for Continuance
State of Tennessee, Sumner County
Defendant Virgil Butt makes oath in due form of law that he is not ready for trial in the above stated cause and cannot safely go to trial at this term of Court for the following reasons:
1. He was indicted in this cause on the 16th day of Sept. 1914, and did not receive or see a copy of said indictment until Sept. 21st, 1914, when he received a copy thereof by mail;
2. He has just succeeded after due diligence in employing counsel, F. M. Bass and Wm. A. Guild to assist his counsel, J. T. Durham if said cause said employment being effected on Sept. 21st 1914 and owing to the peculiar nature of and probably conflict in the testimony involved in the case, which is voluminous and intricate, they cannot properly prepare his defense during the remainder of this term of Court, even if said counsel had no other engagements, and especially not since said counsel will during said interval be engaged in the trial of other important cases in the Criminal Court, the federal court and the Court of Civil Appeals at Nashville, Tenn. the said cases having been pending and set for trial prior to the return of said indictment against this defendant.
3. The following witnesses and necessary material to defendants
defense are out of the state of Tennessee without defendants consent or knowledge
on procurement. Herschel Civils, John Civils, and a young man named
Owen the first two of whom are as defendant is informed, in St. Louis Mo.
and the last named witness is in Simpson County, KY. That said witnesses
will return to this state before on at the pending of the next term of this
Court but if they or any one of them should not so return, then defendant
can and will have their depositions upon proper order of this Court, for
which application is now made.
That defendant has continuously been confined in jail since the occurrence for which he is indicted and has not had opportunity to confer with said witnesses or to prepare his defense but he is reliably informed that said witnesses will testify as follows: Said Civils will testify (bottom of page blurred) occurrence and from what he saw and heard of said occurrence, that the deceased Hester made the first assault upon defendant with a pistol, he will also materially contradict witnesses for the state in the following particulars - that witness R. T. Flat was not in a position to see the said difficulty as it really occurred, being at the time out of sight of said occurrence. He will also testify that he said defendant was running from the deceased trying to get away from the deceased while the deceased was firing the said pistol at defendant and the deceased was thereafter shot and killed by defendant and said witness will also testify that immediately after said difficulty he heard one or more of the States' witnesses then say that the deceased Hester fired the first shot in the said difficulty and he will also testify that he heard defendant telephone and order the conveyance hitched up, in which defendant was brought to Gallatin by Deputy Sheriff, said telephoning and hitching up occurring after said difficulty, and said statement being contradictory of said State's witness Finn;
John Civils will testify that the deceased made the first assault upon defendant with a pistol. Young Owen will testify that he was an eye witness to the occurrence and that deceased fired the first shot at defendant who ran about 40 yards before he (deft) drew his pistol and fired towards deceased who was shooting at defendant behind the gate post upon defendants premises;
That defendant does not know of any persons by whom the foregoing facts can be shown and he will either have said witnesses present upon the trial of this case at the next to testify orally in this cause, or will have their depositions upon such trial, all of said witnesses having been continually out of the state of Tennessee for some days prior to the return of said indictment and defendant and his counsel have had no opportunity to confer with said witnesses.
4. That defendant has done all possible to prepare his said case for trial, but owing to said difficulties and the extreme excitement & prejudice arising from said occurrence, and owing to the wealth and prominence of the deceased, he has been unable to properly do so.
That defendant is not guilty of the charge laid in said indictment and
this application for a continuance is not made for the purpose of delay or
frivolously but is made in truth and severity for justice as herein stated.
This is the application for continuance. V. R. Butt
Subscribed and sworn to before me this Sept. 22, 1914.
J. W. Hill Clerk
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