The Daily Mercury (Houston, Tex.), Vol. 6, No. 134, Ed. 1 Friday, February 13, 1874 Page: 1 of 4
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VOL. VI—NO. 134
HOUSTON, TEXAS, FRIDAY MOllNING. FEBRUARY 13, 1874.
PRICE: TEN CENTS.
1 DAILY MERCUEY
S J. H. BAKER.
PROPRIETOR.
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® EDITORS:
H J". H. BAKKB. J. H. WILSON
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the green butler mur-
der.
Trial of A. J. Walker for the
Murder of Green Butler
on 19th of May, 1872,
at Clear Creek, Gal-
veston County.
For the Defenee—Col. Geo. P.
Flnlay, Capt. A. W. An-
drews, Jndge C. L.
Cleveland and Col.
J. H. Manly, of
Houston.
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Attorneys for the State—Major
F. M, Spencer, Major Mc-
Lemore and Col. Geo.
Flournoy.
Judge Dodge Presiding.
FOURTH DAY.
Three days taring been consumed
in an application for a change of
venne and in getting np a jury, the
case opened at 10 SO by the introduc-
tion of Mrs. Green Bather, the widow
of the deceased.
Previous to the introduction of
testimony, Major McLemore, on be-
half of the State, and Colonel Manly,
on behalf of defence, made a request
of the representatives of the press—
the Neves, Civilian and Mebcuby—
that the evidence in the case be not
published until the close of the trial,
as the other defendant, Jeff. Black,
was to be tried immediately after-
wards, and the publication would pre-
vail them from securing a jury. The
request being complied with, the list
of witnesses was called, being some
fifty or more in number.
The first witness was
annib butler,
widow of Green Butler, the murdered
man.
My husband was killed on the 19th
of May, 1872; we were eating sup-
per; some one called at the gate.
(Testimony same as last year) His
dying words were, "I am dead.
Andrew Walker killed me." Little
Tflimm tras there; the others I do not
know. When I was nnable to turn
over my husband at his' request, he
called upon Joseph White to turn
him over, and to him he repeated the
same account of the shooting. This
shooting occurred at twilight, or
dusk. Have seen Walker several
times, but do not know him well;
know hi™ when I see him.
She stated that little Isham said
that two men rode up to the gate
with him; that one of them jerked
his horse back and the other, a tall
man, shot Mr. Butler. My husband
lived about ten minutes after being
shot; when I first saw my husband
after the shooting he was lying on
the ground resting his head on his
hand. The night .was a brilliant
moonlight night; I could see ten or
fifteen feet distinctly. We reside at
Clear Creek, in this county, and
there the murder was committed.
Cross examined by Col. Manly—
Have no regular time forjmeals; it
was twilight and darker in the house
than outside; I had just lighted the
candle. The Bhooting occurred at
once, as soon as he could get to the
gate; the gate was about twenty-five
feet from the door of the house. My
husband did not groan or complain;
I asked "Are you dead?" he said
"Yes, I am dead. Andrew Walker
killed me; Little Isham was with
than; the others I do not know." I
never asked him who killed him; I
am certain of the exact words he
used, and certain I asked him only
"Are you dead ?" Mr. White came
out and my husband asked him to
turn him over and repeated to him
the statement of his death ; repeated
Isham's statement, adding that he
(isham) stated that lie thought one
of the men who did the shooting was
Pet Butler, brother of my husband.
When I first went out, Mr. Joe White
was out on the galery; he went into the
house as I came out; he afterwards
came out to the gate where my hus-
band lay and he requested him to
turn him over; never heard of any
trouble * existing between Andrew
Walker and my husband; John
Lewis was at our house during the
day; I never spoke to Andrew Walk-
er in my life; I have seen him several
times; never heard him talk; was not
acquainted with his voice; no dispute
or hot blood existed between our
families; his mother has been at pay
house. I remember being at a party
at a Mr. Perkins' house; did not see
Mr. Walker there; my husband had
a great many men at his house; they
came on business; I did not see many
of those who called.
At this point Judge Cleveland
raised the question of the admisibility
of this dying declaration, objecting
to it on the ground that it had not
the ingredients of admissibility re-
quired by the statute.
Re-examined by the State—I have
no personal acquaintance with An-
drew J. Walker; have never been
thrown into his society; am well
satisfied that the dying declaration of
my husband as given by me is
correctly stated; it is accurate. The
murder was on Sunday, the 19th of
May, 1872; saw no indications of in-
sanity about my husband; he was of
clear mind and spoke as he ever did.
joe white called.
Knew Green Butler; he is dead; I
was at his house when he was killed;
May 19th, '72; we had come out of the
house after supper; sitting on the
gallerv; two men rode up and in-
quired for Butler; he went to the
gate and asked them to come in; I
then heard the shot; I went back into
the house to get a gun; could not
find one and came out. He said An-
drew Walker had killed him; he
asked me to turn him over; I did so
and then walked to the gate and saw
a man riding off; he asked me to
turn him over again and I did so; he
said "I am dying. Andrew Walker
killed me. Little Isham was with
them; the other man I do not know;"
his wife was beside him when I got
out; Green Butler was shot in the
left breast; I examined the wound;
the shirt was powder-burned or
blackened by powder; he called me
by my name, Joe White, twice; he
was lying with his head on his hand;
I heard him twice repeat the state-
ment as to who killed him; his wife
was kneeling over him; I was in the
house when Little Isham came back
from the camp to the house; paid no
attention to what Isham said. I was
at work driving cattle. The murder
occurred about dusk; candles
had been lighted in the house
Cross-examined by Col. Manly—
I now live two miles above Houston ;
am not now in the employ of Butler ;
was at that time in the employ of
George Butler ; was with what was
called Btdler's crowd; left the others
at camp one mile from the house ;
he and I went to the house together ;
short time afterwards we went to
supper ; it was between daylight and
dark ; it was not later ; don't know
whether the candles were lighted be-
fore or during supper ; we came out
from the table together ; as we goL
on the gallery two persons rede up
to the gate ; if the moon was not
shining it woul^L have been just about
dark ; did not see any third party ;
I saw them when ten feet from the
gate coming towards the gate ; did
not see Isham; gate thirty yards or
twenty-five yards from the house;
the men were on horses ; one of
them asked if they could get some-
thing to eat; Butler said, certainly;
get down.; he asked them to "come
in," and when at the gate he was shot;
he did not mention any names, said
simply "come indo not know
whether it was a pistol or gun with
which he was shot; when I went
into the house I remained hunting a
gun about half a minute ; heard no
groans, except when shot; he did
not call upon any of us; I heard Mrs.
Butler ask her husband if he was
killed; I asked, are you killed? An-
swer— "yes, I am dying, Andrew
Walker killed me; do not know
whether he said Andrew or Andy
Walker, or whether he said Andrew
Walker has killed me or shot me ; he
then said, "Little Isham was there,
the other man I did not know. But-
ler lived between five and ten min-
utes ; did not live fifteen minutes ;
he died shortly after Morris and I
took him into the house; Mrs. But-
ler was with him up to the time he
was shot; Morris and myself carried
him into the house ; his last words
were exactly these: "Joe White
turn me over;" have testified before
in this case. The words used by But-
ler were these : "Joe turn me over ;"
the first time. "Joe White turn me
over," the second; he said Andrew
and not Andy Walker. When Willis
Coward arrived Butler was dead and
the body carried into the house.
Major McLemore objected to any
further evidence being drawn out by
the defence, that they confine them-
selves to the cross-examination on'
those points only drawn out by the
State.
The Court sustained the objection
raised by the State. The Prosecu-
tion permitted the Defence to pro-
ceed.
Coward said he was at-home when
the Bhooting todk place ; the conver-
sation took place in the house after
the body was taken into the house;
Coward staid but a short time ; he
then left and was gone about half an
hour or an hour, and staid at the
house until about midnight,- and
when he returned I think John Lewis
came with him; the creek is 100 yards
from the house ; is not fordable at
that place; is forty or fifty feet wide
and was crossed by a ferry at that
time. After first turning Bntler over
I went to the gate and saw a man
riding towards Morris' house, or in a
westerly course; saw only this one
man ; did not see Little Isham at all;
don't .know whether I swore on the
first trial that I did see Little Isham
at that time. I now testify that I
did not see him at the time. I think
Ebie Lewis was on the gallery with
us when the shooting took place.
Re-examined by the St&to—I asked
Walker if he Was killed or dead; he
said he was. Green Butler was sane;
he knew us all; he did not speak
after we turned him over on his
breast; I judge Walker was killed
with a six-shooter, because the hole
in his breast was about the size of a
Navy pistol bullet. N
ebie lewis called.
I knew Green Butler; he is dead.
Two gentlemen rode up to the gate
and asked if they could get supper;
Butler, said "yes, get down and
come in," going to the gate;
one man was on a grev- horse;
one on the sorrel horse did the
shooting; he shot Butler over the
fence; I and White ran into the
house for a gun or a pistol, but did
not find it; came out and heard the
dying declaration, (repeating in sub-
stance same as the others.) Butler
fell as soon as shot; his wife was
kneeling over him when I came out;
he asked his wife to turn him; she
could could not, and he asked White
to do, which he did; did not see any
third person; saw no one but the two
persons spoken of; there were trees
between me and the fence, but none
between me and the gate.
Question by Kenneson, a juror—
Could you see distinctly from the
house tnat one horse was a sorrel and
the other was a grey or light horse 1
Answer—Yes. The tallest man, the
one that got off the sorrel horse, did
the shooting.
Cross examined by Manly—Was
thirty feet off; could distinguish a
bay from a sorrel, but not a grey
from a dun horse; am familiar with
horses; could tell the difference be-
tween a bay and sorrel horse. The
tall man was on the sorrel horse. I
know Andrew Walker; have known
him for tw« or three years; have
driven cattle and camped with him;
did not recognize Andrew Walker,
but did see distinctly and could dis-
tinguish a sorrel from a bay horse.
Did not track these horses to see
which way they went ; did not do so
myself or see any one do so; do not
know of any one doing so. The
horses were hitched when Butler was
shot and they broke away, but were
caught by the men.
"little isnaxl" called.
A youth, blacker than the aca of
spades, but with a sharp, shrewd
look.
My najne is Isham Bundy. Knew
Green Butler since I could speak his
name; have worked for him most all
the time. Green Butler is dead; I
was there when he was shot; I was at
his camp, a half mile from the house;
I went from the camp to the house to
get some supper for myself and to
bring some for the men; when I got
to the gate two horses were hitched
to the picket and the men were on
the ground; one horse hitched on
each side of the gate; one horse was
a sorrel, the other a light horse; the
men had on long oil-cloth coats; the
shortest man spoke, asking for sup-
per# in a woman's voice; Butler said
yes; the little man then stepped back
catching hold of my horse and jerking
him back; the tall man then drew a
pistol and shot Butler over th# gate;
I saw the two men; saw them in the
face; do not know who these men
were; as soon as the pistol fired, my
horse ran away, and I ran back to,
camp just as fast as I could; I told
the men Butler was shot and we all
went back to the camp; when I got
back to the house, I told the men I
was there when Butler was shot; in
the morning I told them all about it;
am certain I was there; am certain I
did not go with them and that they
were off their horses; I could see
pretty well; saw Green Butler's face
very plain; Butler was at the gate
when I got there. The shortest man
jerked my horse back; the man who
asked for supper did ndt shoot.
Cross examined by Col. Manly—
Don't know how old I am ; have been
living with Butler most all my life ;
it was dark when I got up to the
house—(Here arranged chairs to rep-
resent gate posts, and accurately de-
soribed the location of the men and
horses)—The man that did the shoot-
ing was on a long sorrel horse ; was
close to the men, three feet from
them ; the man laid the right hand on
the gate, and drew the pistol with his
left hand from under his coat, and
with his left hand did the shooting ;
have been examined before ; did not
before say that I thought it was Pet
Butler ; did not to my memory even
say so ; I know a sorrel horse when
I see him from a bay ; know it was a
sorrel horse ; the man that jerked
my horse back was a man not larger
than Major McLemore ; he looked
like a short, chunky man ; saw both
men, but did not recognize them ;
saw the man that shot Butler; saw him
in the face ; have known Walker ever
since I was a little boy; I saw his
face ; I am certain I saw his face ;
do not say it was Walker; never did
say so ; have no reason for saying so;
saw him shoot with his left hand ; I
did not hear that night or did not
notice any one say who did the shoot-
ing ; I recognize Jeff. Black (pointed
him out); do not recognize' Jeff.
Black as the man who jerked my
horse, or as one of the men who were
present; am familiar with horses ;
have hunted them time and again;
stayed at Butler's all night; when I
rode off after the shooting, I saw two
men running ; on the next morning
I went with others and found the
horse tracks; they were large and
shod ; we had no shod horses about
the place ; the tracks led towards the
right hand road going around the
field ; we tracked them for over a
quarter of a mile ; I do not know of
Andrew Walker-having any Sorrel or
grey horse ; a long time before But-
ler was killed, Walker owned a fine
dun horse ; grey horses and dun
horses were plenty in that neighbor-
hood ; do not know what horse made
the shod tracks ; one of the two men
who were present when Butler was
killed was a tall man ; did not recog-
nize either of the men; the tall man
did the shooting ; he and Butler were
close together.
To a Juror—I did see the face of
the man who did the shooting.
Do you think from the size that
the man was Andrew Walker ?
About that size.
Do you think the man you saw and
who did the shooting was Andrew
Walker ? "I have no right so to
do I don't think the man who did
the shooting was Andrew Walker;
will not say so ; never have said so ;
have never been threatened if I told
the truth; if I had I should have
told the same ; when I first saw the
man that did the shooting he was
standing side the gate ; the man that
did the shooting had on whiskers.
joe bandy called.
Know Green Butler ; on night of
the murder was at the stock pen 300
yards from the house ; first heard of
the killing from Isham; I turned
round and went back to the camp,
then went with the men to the house.
Isham's horse was running at full
speed ; he said he was there when he
was shot; he said he rode up between
the two men.
Cross examined by Manly—I staid
at Butler's house until about 8 o'clock
and then went to Houston ; when I
was going to supper I had a borrowed
horse, and I went back to camp to
get my own horse ; when I got to
Butler's house he was dead and lying
on the bed.
The State here closed its evidence
and rests the case.
Judge Cleveland here again pre-
sented his objections to the dying
declarations of Green Butler on ac-
count of its not being in conformity
with the rules governing such evi-
dence.
Objection over-ruled and excep-
tions taken.
Evening Session.
james thompson called.
[For the Defense. J
Beside on Clear Creek ; was at
home on the night Butler was killed;
live one and a half miles from But-
ler's house, on the opposite side of
the creek; we cross on a ferry boat;
I heard of the killing from Willis B.
Coward, who came for John Lewis;
I had been out on the prairie; got
home at 6:30; Coward came before
that time, and left a short time after-
wards, some three to five minutes; I
know my clock was right, because I
set it by the sun; I went out as far as
the steps with Lewis; Coward stood
thirty feet off; He said, "Mr. Butler
is killed, come quickly," and he went
away; in a few minutes afterwards
the clock struck eight.
j. b. smith called.
At time of murder was County Sur-
veyor; know all the localities about
Butler's; have been over the ground
and surveyed the same; have made a
plot ov map of the same. He produced
the map and a blackboard having a
diagram of all the localities mentioned
in the trial. Butler's house faces
west; six and five-eighth miles from
it to Summit station; Hugh Kelley's
house is miles from Butler's;
ol3 miles from Kelley's to Summit;
this is the house formerly occupied
by old Mrs. Walker; Butler and Kel-
ley are both on the south side of the
creek; you cross the creek "on a bridge
near Kelley's; Patience House is a
quarter of a mile off the road; dis-
tance from Thornton's to Butler's by
nearest feasible route is about five
miles; the road is tortuous.
Cross-examined — The road from
Walker's to Butler's there is an open
prairie; no timber.
hugh kellet called.
Reside on Clear Creek in Brazoria
county; have lived there twenty-
eight years; know where Green But-
ler lived; on night of murder I was at
home; saw at my house Amos and
Andrew Walker and Jeff Black; it
was a little before sundown; tffey
stayed over half an hour; the sun had
gone down before, they left; did not
see their horses, as I presume they left
them at the rack; tffere were several
persons at the house at the time; we
shook hands and went into my little
store, and we had a drink together;
do not of my own knowledge know
which way they went when they left
my house; it is five miles from my
house to Butler's, and five and a half
miles to Summit station; was a wit-
ness at last trial for both State and
defence; I did not see Black before
that time on the same day, but was
told that he had been there looking
for a colt belonging to Mrs. Allen;
Mrs. Walker, mother of prisoner, was
living on Morris' branch at the time
of the murder.
Cross-examined—It is • three-quar-
ters of a mile to old Bob Thornton's;
I was separating cattle back of the
house when the Walkers and Black
left; Little Jerry Thornton lived at
his father's, Bob Thornton's, and
came to my store for goods a few min-
utes after the boys left.
miss alice morris called.
Reside in Houston; on 19th of
May, 1872, was at the house of Walt-
er's mother, with his two sisters; at
1 o'clock that day we were riding on
the prairie and there met Jeff Black,
who rode with us to their mother;
one hour later, the two brothers,
Andrew and Amos Walker, came
home; we had dinner, after which we
all went out gathering blackberries,
except Amos, who remained on the
gallery talking to his mother; when
we came back; they staid until half
an before sunset when they left; we,
their sisters, and myself, were to ride
over to Summit to see their brothers
on the following Tuesday; I had
known them for a long time and was
about to leave; that was the reason I
was going over with their sisters;
Andrew Walker was in his shirt
sleeves.
Cross-examined—Did not hear of
the murder till Wednesday; saw'
Walker part with his mother and sis-
ters; there was a general hand shak-
ing when they left; am intimately ac-
quainted with Andrew Walker, but
do not know Amos Walker; never
saw him before.
xkati buedick called. 1
On 19th May, 1872, was at Kelley's
on Clear Creek; saw there Mr. Walk-
er and Mr. Black; it was sunset; they
staid about half an hour; they came
into the store to inquire about some
horses; I was in the cow lot when
they left; it was after sundown when
they left; horses are generally hitched
in front of the house at a horse rack;
Walker had on shirt and pants, and
Black was in his shirt sleeves; Amos
Walker was a trifle taller and stouter
than Andrew; there is a well shed and
milk dairy between the store and the
horse shed, and the ground is lower
than at the store; there is also a
picket fence obstructing the view of
the horse rack, besides the store door
does not face that way; did not see
the horses they were on.
Cross-examined—Did not see them
when they came or went; did not see
any arms on them, except a pocket
knife owned by Andrew Walker.
bob thobstos called.
Live on Turkey Point in Harris
county; at time of murder lived on
Spring Gulley, one mile from Kelley's
on the Summit road, and one mile
nearer Summit than'Kelley's; I was
in my field a little after sunset and
saw three men on horseback; I was
fifty yards from th#m; I know the
Walkers and Black, but I could not
recognize them ; it was just light
enough for me to see the men and
horses; when I first saw them they
were one hundred yards from me;
the road runs around, and is only
fifty yards from the field where they
passed; they were walking slowly;
two were riding sorrel horses and one
of them was on a large dun horse.
Cross-examined by McLemore—
Nothing new elicited.
charley lee called.
Live at Harrisburg; drive cows for
a living; on the night Butler was
killed I was at Kelley's store; got at
Summit at evening; came from Allen's
rauche, and pitched our tent; there
were from twelve to thirteen of us;
we were mounted, and we had loose
horses; Amos Walker did not belong
to our crowd; Jeff Black and Andrew
Walker did not belong to our crowd;
we got to Summit two hours before
sundown; we had supper about sun-
down; after supper I started for Kel-
ley's store; half way from Summit to
Kelley's I met Amos and Andrew
Walker and Jeff Black; they were
riding on a walk towards Summit; I
did not get to Kelley's; my mule
got scared and threw me, that is why
I did not go; they said hallo Charley,
is that you? I said, yes; they asked
where I was going; I said I was going
to see my girl; I walked back to Sum-
mit; waked up three of the boys, and
hunted for the mule, and not finding
him we went back to the ranclie to
see if he was there; did not find him
and returned to Summit; one of the
boys that rode with me to the ranche
took old Aleck, the horse that Black
had rode on that Sunday; Walker
rode a dun horse at this time; do not
know what kind of a liorse Amos
Walker was on; none of the horses
were shod; both Old Aleck and
Walker's horses were staked in camp
when I got there; I walked directly
back to camp after I was thrown;
think I was about two or two and a
quarter hours walking back to the
camp.
Cross examined—Have been ex-
amined before in this case; think I
walked about four miles from where
my mule threw me, to the camp.
Col. Manly was the first man I had
any conversation with regarding this
'case; I was introduced to Sheriff
Dirks by Mr. Allen; I was at Allen's
ranche, and came down to Galveston
with the prisoners.
Col. Finlayhere arose and objected
to any further continuance of the
line of interrogations put by the
State. He contended that the volun-
tary appearance of a witness was not
to be construed to his injury, and he
quoted authorities proving that the
State was traveling out of their prov-
ince as cross-examiners, and claimed
the protection of the Court for his
witness—asking no favors, but de-
manding it as a right.
The Court sustained the objection
of Col. Finlay, and cautioned the at-
torneys for the State.
Cross-examination resumed—I was
introduced to Sheriff Dirks by Mr.
Allen, who said, "This is a boy who
has been with me a long time, and he
generally tells the truth." After I
was thrown by the mule I walked to
the camp; I walked rather slow;
stopped once on the way.
Re-examined—On the day after the
murder, Walker and Black were both
driving cattle.
wm. m'faddex called.
Reached here this morning from
Bolivar; came over in a boat; on
Thursday last was on Taylor's Bayou,
in Jefferson county; did not know
this trial was going on; I was frol-
licking about there; had no business
there; got a dispatch calling me here;
on the 19th of May, 1873, was part of
the day at Allen's ranche, part of the
day at Summit; at the ranche we
were preparing to go on a cow drive;
we left the ranche at about onejor two
o'clock; saw Amos and Andrew
Walker; they left sooner than the
rest; they left to go to their mothers;
Black left in the forenoon; he left on
Old Aleck, to hunt a horse that was
lost; Black left in the morning; we
got to the Summit about four o'clock;
we camped; hobbled our horses and
camped; there were about fifteen
persons of us; had supper about sun-
down; saw Charley Lee there;
he left after he ate his sup-
per; saw Walker and Black
when they came into camp; I was
talking to Owens; it was about eight
o'clock; we sat at the fire; they asked
for supper; I got it for them; we ate;
we talked awhile and then went to
bed; it was not later than 8:15; saw
Walker when he left the ranche; he
was on a dun horse; his brother was
on a small bay horse of his^own; we
got up about daylight, unhobbled
our horses and went cow driving
down on Clear Creek, all of us going
together; Walker and Black were
present; we went within a quarter of
a mile of the Butler house.
Cross-examined—Live near Harris-
burg; have been.in Jefferson county
for two months; few persons knew
where I was; did not know anything
of this trial till I got a dispatch;
first heard of Green Butler's death
the day after he was killed; heard it
after my arrival in camp; I never car-
ried a watch; am a good judge of
time, and I fix the time at 8:15; the'
usual supper time among us cow boys
is to eft before dark; we did so on
this Sunday night; Charley Lee had
been gone about a half or three-quar-
ters of an hour before Walker and
Black rode into camp.
Niglit Session.
T^e jurors being desirous of get-
ting through as soon as possible, ex-
pressed a desire to have a night ses-
sion.
Col. Manly here produced Jayne'3
Almanac to prove that the time of
the setting of the sun, 6:49, or 11
minutes before 7, the moon rising at
2:59 p. m, or 1 minute before 3
o'olock in the afternoon.
Col. Manly here announced the
evidence for the defence as all in.
Rebutting testimony introduced by
the State:
jebby thornton.
Son of Bob Thornton; we lived at
the Gilbert place at the time of the
killing of Butler; we lived on the
road from Kelley's to Summit; on the
night of the murder, about dusk, I
met Andrew Walker, Amos Walker
and Jeff. Black; Andrew was on a
dun horse; the others on bay horses;
afterwards stated that one was on a
sorrel horse; one of the men had on
an oil cloth overcoat; the others had
theirs tied to the saddle; they all had
pistols tied to their saddles; the sor-
rel horse was a large horse; the dun
horse was a tolerable large horse;
they spoke to me; I knew them all;
they went towards my father's house.
Cross-examined—Met them on the
bridge just at dusk; they spoke to
me and said how do you do, Jerry.
peyton, ob patience, called.
This witness is a hermaphro-
dite, and goes clothed part of the
time as a man and part of the time as
a woman, taking the name of Peyton
when in masculine garb, and Pa-
tience when clothed in petticoats.
Testimony—When Green Butler
was killed I lived one mile from But-
ler's; my name is Peyton or Patience;
I saw two men riding past the house;
one said to the other "There has
been a fence burnt down since we
were here last;" the other said, "Yes;"
I took the horse to be Walker's
horse; I knew it well; it was a
claybank horse or yellow dun horse
of a peculiar proud walk; a short
time* after they passed I heard the
report of a pistol; it was just about;
dark; as soon as I heard the pistol
fired I said to myself Green Butler is
killed; I drove the cow into the pen
and poured out a cup of coffee from
the time they passed me until I heard
the pistol; I knew the horse by the
gait; know all the horses around
there; went to Butler's on that
night; went right away; it just come
right to my mind that Butler was
killed; I heard his wife scream, "Oh,
my poor husband;" the house was a
good mile from where I was; have
never seen Walker's horse since But-
ler was killed.
Cross-examined—The horse run
around the prairie; my house is two
hundred yards from the road; Kee-
ver Perkins passed some time before;
he was a quarter of a mile ahead of
Walker and Black; I was a hundred
yards from them when they passed;
Keever Perkins was a mile off; we
had a talk; he said he would come
the next day; did not know these two
men; did not recognize them one
hundred yards, but did recognize
Keever at a distance of one mile; I
know Perkins, Black and Walker; I
know them all; I think it was the
spirits that told me Butler was killed;
I wrestle with the spirits; did not
notice any other horse; don't know
whether it was black, bay or white;
don't know what clothes the men had
on; when I first saw the dun horse I
thought it was Mr. Robbersou, who
owned the place where I worked, and
who had a horse of the same color.
Re-examined—I know the horse;
it was Walker's horse; I recognized
the horse as Walker's; I know every
man in that section of country by
his ride; can tell them a mile off if
loping or galloping; I ride horses or
mules; I ride sideways when I ride;
I stay around Clear Creek station; I
wash, milk, and work around; I think
I saw one of Walker's sisters riding
this horse down to the store; saw
Walker ride this same horse on the
prairie; there aro a great many dun
horses in that neighborhood; did not
notice the horse that Keever Perkins
was on.
keever perkins called.
I know old Patience or Peyton;
known her for several years; she has
some considerable knowledge of men
and horses thereabouts; passed Pa-
tience on the night of the murder;
she called to me, but I did not look
around or answer her; this occurred
just about sunset.
Cross-examined by Col. Manly—I
had no conversation with Patience;
did not speak one word to her on
this evening; I know the dun horse
owned by Andrew Walker; I sold it
to him for §65; got all he was worth;
I am a cousin of Green Butler, the
person who was killed; I have used
the horse driving cattle; Bensom and
Isham were in the crowd at the time
that I was using this horse; Isham
ought to know the horse; there was
no distinguishing mark about the
horse; no gait or trait to distinguish
him; but all persons acquainted with
horses or stock can tell them.
john lewis called.
Know where Butler lived when he
was killed; I rode from the poll
bridge to Summit in twenty minutes;
Goree Campbell started me, and Maj.
McLemore timed me when I came
out at Summit; I started at 2:20; got
to Summit at 2:40; rode in saddle;
I rode from Butler's house; I weighed
at that time 155 pounds; do not know
that I swore that I weighed 165 at
the last trial; I rode a common cow
pony 6% miles; I made the time in
twenty minutes.
By Colonel Manly—John Lewis,
on yotfc oath, did you not ride a race-
horse at that time ? No, sir; I rode
a cow pony. Was he not called Red
Bird? Yes. Was he not called Ned?
Yes. Has he not run races in both
Houston and Galveston? I don't
know; the ground is a hog-wallow
prairie most of the way; you have to
go through a creek bottom four or
five hundred yards; there is a poll
bridge also to cross, then a hog-wal-
low prairie; I rode 6% miles over
this road in twenty minutes on a cow
pony; weighed 165 pounds; I did not
run the horse as fast as he could go;
I did not carry a watch; I made this
race before the last trial; don't know
whether I swore at last term that I had
my coat off and head tied np. Were
you not there to make evidence for
this case? Don't know; think I was;
think I could make this ride in fifteen
minutes on the same horse; at this
time I had a better horse than Red
Bird; I thought I could ride this dis-
tance in twenty minutes, and can ride
it in fifteen minutes.
gobeh campbell called.
I was present on the day that Lewis
rode from Green Butler's house
to Summit; McLemore and myself
set our watches together before Lew-
is started; compared afterwards;
they were alike then; the ride was
made in twenty minutes; we agreed
to start him at 2 p. m., but did not
start him until 2:20; the horse was a
good cow pony; he looked bad;
think the horse can now make it in
less time.
Cross examined—It took me a
long time to go; I have given the ex-
act time it took me; I was some one
hour and forty minutes, or two hours
in going; the horse was still breath-
ing hard and was wet when I saw
him; the road is a very rough road;
there are several gullies on the road;
Lewis, when he made the ride, had
on a summer suit and two pistols;
don't know whether he had on a coat
or not; I do not think Lewis was
any heavier or lighter then than now,
think he weighed as much then as
now; can see no difference in his ap-
pearance.
Both State and defence here an-
nounced the case closed.
FIFTH DAY.
arguments of counsel.
Major Spencer, District Attorney—
I am not here to gather bouquets of
rhetoric—serious subject—but to
represent justice in all its attributes,
and to represent truth, and to aid
the jury in meting out even-handed
justice to the accused.
His theory of the case was, that
there were three persons concerned
in the murder—Andrew Walker and
Jeff Black, being in front of the
house, and Amos Walker in the rear
of the house—which differs from the
theory on the former trial.
He claimed that nothing but
prompt conviction and execution of
murderers would ever stop the com-
mission of murder. To carry out
his theory, and to account for the
discrepancy of the State witnesses,
regarding the color of the horse rode
by Walker, he alleged that Walker
and Black had changed horses.
The argument of Major Spencer
was the most able we have ever lis-
tened to from this most eloquent
and able lawyer, whose ability is so
well known in Harris county.
Major Spencer was followed by
Judge E. L. Cleveland on behalf of
the defence. He complimented the
jury on its intelligence • and ability,
and stated that he should not in the
least appeal to their feelings—he had
no appeal to make to their sympa-
thies—but a simple demand for their
strict and impartial judgment upon
the evidence produced before them.
He then addressed himself to the
consideration of the laws governing
certain points of the case, and pro-
ceeded to read from the books.
The whole case rested upon the
dying declaration of Green Butler,
the deceased.
He then gave the law defining the
force which said declarations should
have, making one of the clearest ex-
positions of the value of this kind of
testimony ever listened to, evincing
deep research into authorities, great
thought and study of the same, while
his clearness in presenting
the same to the mind of the jurv
showed that he had complely mas-
tered the subject himself, and pos-
sessed the ability to impart his con-
victions to others.
He read the decision of the Su-
preme Court in this same case, in
which dying declarations, heard by
others, not written down, but repeated
by others, are put down only as hear-
say evidence, admissible only from
the necessities of the case. He also
called 1st Greenleaf oil Evidence,
page 181 on dying declarations, in
which it is declared that the same are
not admissible in civil causes, and
admitted only in cases of homicide, as
a matter of necessity, and then
only under certain restrictions, and
that after the evidence is admit-
ted the jury have full power to ac-
cept a part or reject the whole, ai
they might see fit.
He also quoted from the books,
showing that the Supreme Court of
Mississippi and Texas had both de-
cided that dying declarations, when
taken down in writing, were not of
same weight as that testimony taken
in court, because there was not an
opportunity for cross-examination,
which is admitted as one of the
greatest auxiliaries for elucidating
the truth; and because there is a
liability to error on the part of the
writer, both in receiving the words
and ideas of the dying person and in
the transmission of these ideas and
words to paper, and to the jury,
and. the absolute necessity of the
exact words, in order to arrive at the
truth.
. He then proceeded to show that if
dying declarations, written down and
sworn to, were subject to these ob-
jections, how insecure and unreliable
were declarations received in agita-
tion and excitement and repeated
months afterwards to the jury.
He read further from Starkey on
Evidence on dying declarations,
proving that, though relieved from
all suspicion of falsehood, was open
to the objection of inaccuracy, on ac-
count of a failing mind, surprise,
pain and many other conditions cal-
culated to distort, color or abuse the
facts of the case, and cutting off all
opportunities of detection on investi-
gation by cross-examination.
Judge Cleveland made one of the
most masterly efforts listened to by
the members of the Galveston bar.
THE VERDICT.
The jury being charged by Judge
Dodge, retired to consult. "After a
brief absence, Mr. Stone, their fore-
man, heading the jury, entered the
courtroom, and amidst breathless
silence, handed the verdict to the
clerk, who read it aloud: Guilty, pun-
ishment Death.
The jury was then polled, and the
Judge adjourned the court.
Walker remained calm throughout
the trial, evincing no emotion.
An application has been made for
a new trial, on the ground that a
change of venue was refused by Judge
Dodge.
(Continued on Second Page )
JOHN COLLINS,
GROCER AND GREAT
MAN,
MARKET HOUSE,
Houston, Texas.
feb3-tf
Machinery—Hardware, Etc.
SCHMIDT & KOSSE,
WHOLESALE AND RETAIL
HARDWARE MERCHANTS.
HOUSTON. TEXAS.
T. ST. RILEY,
■
67 Main Street. ...69.
HARDWARE, STOVES,
Railroad and Hill Supplies,
BRINLEY PLOWS, ROPE A BLOCKS,
Gas Fitting and Plumbing.
Gas Pipe cut and fitted to order. Gas
and Steam Fittings, Brass Goods, etc.
Manufacturers of Tin and Sheet Iron
Ware. jan6 tf
CUSHMAN'S
MACHINE WORKS,
Prestcn Street,
(North Side Long Bridge,)
HOUSTON, - - - TEXAS,
BUILDEK OF
Safinti, Boilers, Saw and Cotton
Hills, Cotton Presses,
GINS AND ALL KIND OF MACHENEEY.
Repairs will be done to order and guaranteed.
All Kinds of Brass Goods and Steam
Fittings en Hand.
anglfrtf
Bayou City Iron Works.
.A.. o <3- O "W 33 2ST,
Manufacturer of
Steam Engines, Bolivar's Saw Mii'h.
G-in <3- earing;
A. McGOWEN'S.
PATENT COTTON PRESS.
Each one is tested, and guaranteed not to break.
Neab Central Railway Depot,
HOUSTON,
nor7-im
I.**-;
mm
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w. o wiaeia.
D. O. SMITH.
pHCEUTX EROS WORKS.
Wiggin, Smith & Simpson,
BRASS AND XBON FOUNDKRS
Manulaetnren ot
TEAK ENGINE." TOHJEB&
SHAFTING, SAW MILLS, PULLEYS,
BOLL GEARING, PUMPS, Bra,
Preston Street, Near Long Bridge,
HOUSTON,
All kinds oi fob Work done at tbe^towest
jEH.rajvio'Vua-Xj-
THE AYRRILL
CHEMICAL PAINT DEPOT.
Mixed Car immediate nse. Always read? far
tbe-brash. Requires no oil, thinner or drier.
Sold by the gallon only.
H. K. ALLEB, Agent,
Travis 8t, next door to E. F. Schmidt's Drug
Store. «i«S-ly
J LUG * GOHLMAJT,
Dealers In Furniture, Oarpets, Oil Cloth. Mat-
ting, Window Shades, and general House
Furnishing Goods; Picture Frames, Comioea,
Moss and Hair Mattresses made to or"
MORRIS' BUILDING, 67 sad 691
angli-ly. HOUSTON,'
ED. MILBY.
L. PORTER.
W. H. PALMER.
MILBY, PORTER & CO.,
COMMISSION MERCHANTS AND
WHOLESALE GROCERS,
HATE THE LARGEST STOCK AND BEST VARIETY OF
FLOUR IN TEXAS !
Being State Agents for three Mills, the largest in South Missouri and Kansas, are
prepared to job FLOUR to the trade and make contracts at prices that cannot be
beaten! ' ,
2000 BARRELS NOW IN STORE !
Samples Sent and orders solicited. Buyers will do well to examine our FLOUR.
GRAIN and other goods before ordering from or visiting other markets.
jan31-ly
WE CANNOT BE UNDERSOLD!
I3. T. T. B.
PRINBLE'S TEXAS TONIC BITTERS,
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Compounded from the BEST VEGETABLE DRUGS and the PUREST. BOUKBON WHISKIES,
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A GREAT APPETIZER,
Strengthening and invigorating the system, toning the stomach and aiding digestion—a tno,t
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At Wholesale and Retail, and Constantly on Draught, at
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CONGRESS STREET, NEAR THE POST OFFICE,
Where the Proprietor will always be found by his friends.
The Best Supplied Bar in Texas. S. 0. P. Brandy and Old Grow Whisky,
Always on Hand.
nov25dtf T. J. PRBtDLE, Proprietor.
WM. C
STIAN & CO.,
LOOKOUT
for the
SIGN
of the
Nog. if
and 3p
MA IF ST.
[FfrstoB.
No. 28 and 30 MAIN STREET, HOUSTON, TFXAS. •
COTTON AND WOOL FACTORS
and
GENERAL COMMISSION MERCHANTS.
Make Liberal Cash Advances on all Produce on Hand.
Special attention given to the sale and shipment of gotton an! Wool Keep constantly on hand
a large stock of Staple Groceries. Agents for the sale of Odell's Cotton Greek, Wallie k
Beard'almproved Iron Ties, Grav'sIngersaTa Cotton Presses, Bsgle Cotton Gtns sad «olemau'<
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4^We call special attention to oar SUGAR and SYRUP.
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Baker, J. H. & Wilson, J. H. The Daily Mercury (Houston, Tex.), Vol. 6, No. 134, Ed. 1 Friday, February 13, 1874, newspaper, February 13, 1874; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth232974/m1/1/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.