South Carolina, D-F, 1820-1997, Undated

gree —

DOLLY and LIVERPOOLE ie Oe Se. , an lie

W2
"July 28, Friday, two slaves Wolly, belonging to Mr, Vy ‘
James Sands, and Liverpoole, elonging to Mr. William \, U
Price) were burned on the workhouse green (some place, C Nt Vv
probably Charleston} in South Carolina), pursuant to sen-
tence imposed two weeks earlier, Dolly was convicted of % Sy
poisoning an infant of Mr, Sand's and attmpting to poison \
Mr, Sands; Liverpoole, a Negro doctor, was convicted of - a
furnishing the poison, Source: SOUTH CAROLINA GAZETTE EX-
TRAORDIWARY, Tuesday, August 1, 1769" a

letter dted, <2 6-197 from & Ve 7

The following BOSTON NEWS IETTER, No, 30, 9-7-1769 (2:2);
"BY THE HARTFORD POST, Charles-Town (South-Carolina) Augo
1, - Frdéday last a negro man belonging to Mjssrs. Price,


SC bazthte b Country Journal of 3f1/ 67 reports

tts double tvaant and adds frat polson was given fo

Mr. Sands, Mrs. Sands ard theer child, the letter of
which died therctrom. fssue of §/8 contains Mr Sands

th obituary cofurmny $0 he foo evidently dred trom The
éhicts of the potson, though atter the ajudication of
the culprits.

A A

[BSA 297

OCCUPATION | ics ee Yo a) RR GIOENCE

RECORD

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TRIAL

APPEALS

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Chastealen 2 yep WALEED,


Charleston; JOSHUA NETTLES and RICHARD DENNIS the Younger, who were convicted

of murder at the last Court of Sessions, were executed yesterday between the

hours of 12 and 2 o'clock agreeably to their sentences near the jail in this
city. Charleston Courier 2-9-1805 (3:1)

Note: According to C.C. 1-28-05 (2:1) Nettles conspired with a woman named
Elizabeth Cannon to murder her husband, John Cannon. It was a love triangle.
On 10/24/05 Nettles dragged Cannon out of his house in the middle of the
night, called him a 'son of a bitch' and strangled him with his bare hands.
The principal evidence was 12 year old Dorothy Cannon, a daughter of the
deceased. Mrs. Cannon was acquitted. When Nettles was hanged the rope slipped
so that its tautness came flush up against his face. At that point he managed
to free one of his hands with which he manually hoisted himself upwards enough
to slacken the rope so to twist the knot around to the back of his neck in-
stead of under his chin whereupon he was promptly strangled.

Note: According to C.C. 8-21-1804 (3:2) Dennis was an extremely young person
(exact age unspecified) who was associated with his father in the proprietor-
ship of the Carolina Coffee House in Charleston. On 8/21/04 a brawl broke out
in the place which was only subdued by Dennis Jr. Shooting the ringleader dead
on the spot. According to C.C. 1-21-05 the name of the deceased was James Shaw,
a merchant of Charleston. Shaw was smashing up the Coffee House and had dared
Dennis to shoot him. The jury in the Dennis case recommended him to mercy as

did also the judge. However this is a rare case of where such recommendation
went unheeded. ;

apie > STTD € pa Sr, ro o wg TNSTCT
SOQT-g-cT Uo Og SUCgSeTuBUQ pesueYy **aUy pieyo THSINNEC

334 Historic CAMDEN.

The indictment, with much of the elaborate verbiage
of those times omitted, ran to the effect:

“That Isaiah Jenkins, laborer, moved and seduced by
the instigation of the Devil, on the 18th April, 1805,
with force and arms at Minton’s Mill, of his malice
aforethought, upon one David Minton, in the peace of
God and of the State then and there being, a certain gun
loaded and charged with gunpowder and divers leaden
bullets, against and upon the said David Minton did
shoot and discharge, giving the said David Minton two
mortal wounds of which the said David Minton on the
fourteenth of April died.

“That Jesse Fley, laborer, was present aiding and
abetting.

“That Lovick Rochell, planter, instigated by the
Devil, the said Isaiah Jenkins and Jesse Fley, the felony
and murder aforesaid to be done and committed, of his
malice aforethought, did incite, counsel and procure.”

Some of the evidence survives with the record.

Francis Robertson testified that he was present when
David Minton was killed. Said Minton was shot with
two balls through his back. It appeared the gun rested
in an aperture between the logs of the house at the chim-
ney. One ball passed through his body and lodged in
the forefinger of the right hand. Minton fell back ex-
claiming: “Lord have mercy, they have done it at last.”
Two persons were heard to run from the chimney, and
two tracks plain to be seen next morning. Minton re-
tained his senses to the last moment, and when asked
whom he suspected said: “Fley.”

About eight days previous Fley came to the house
where witness and Minton were at dinner with the hands
who were raising the mill. They invited Fley to join
them at dinner, but he declined, and sat with his eyes

siinciadi ss Sn estat 2 .

nit 0 A? Latter MPS Re ted

MINTON’S MILL. 335

direct to where the opening was at the chimney.
Minton remarked after he had gone, “He is after no
good.”

Elizabeth Minton testified that as David Minton, her
husband, was drinking tea, about two hours after dark,
a gun was discharged through the logs of the chimney,
near where Minton sat. That upon being shot Minton
cried out: “I am killed. They have done it at last. It
was what I expected. Rochell has done it, or had it
done by Fley.”

Lovick Rochell made oath “that he is not guilty of the _

crime whereof he is charged. That on the morning of
the 13th of April he left Camden and returned home,
where he arrived at half-past three o’clock, and remained
an hour in the house walking about and afterwards went
to bed and slept until after sunset, and afterwards re-
mained in the house all night. That he has no knovwil-
edge of who were concerned in the murder of said David
Minton.” This statement he made on applying for bail.

Charlotte Rochell said that her father, Lovick Ro-
chell, arrived at his home on the evening of the murder
of David Minton before night, and remained at home
without being absent therefrom all night, as she believes,
as she saw him at dark and afterwards till ten o’clock,
and again early in the morning. And the same state-
ment was made by Elizabeth Rochell, wife of Lovick,
and by Barsheba Clanton, his niece.

Jesse Fley saith he is innocent of the death of David
Minton, and ignorant of the person or persons con-
cerned. That he never had any personal quarrel with
him. That on the evening of the night on which the
murder happened, he went to the mill where Minton
was, before sundown to see Moore, with whom he had
business; that he left there before dark, and did not
return again that night.

338 Historic CAMDEN.

stopper stuck fast, so that he could not twist it out. He
struck the neck off upon the wheel of the vehicle, and
swallowed the contents, remarking, “I took breakfast in
Camden today. I will take dinner in hell with David
Minton.” And so he went to the halter. One munth
later Jesse Fley swung from the same limb. The Cam-
den gum bore, like ripe fruit, the felons of Minton’s Mill.

What of Jenkins? As aforesaid, he escaped, and was
never heard of again—until the year of grace 1901.

Coincidences are curious. A letter was lately re-
ceived in Camden from one N., official in another State,
a man of credit and repute, inquiring whether any
record could be found here of the Rochell murder trial.
The records of this case, undisturbed for near a century,
had just been explored for the purposes of this sketch.
The letter was duly answered and we were further in-
formed by N. that his uncle, who had once lived in
Kershaw District, about the year 1820 went on a visit
to that other State. There he recognized Jenkins, who
under the assumed name of “B.” had married respect-
ably, become the father of a family and was prospering.
He had no heart to break up that family. He told the
secret only to N.’s father. The descendants of Jenkins,
or B., have been of good standing in that State, but the
male members have all met violent deaths, the last of
them having come to a tragic end shortly before N.’s
letter of inquiry. N. writes to us: “Facts are sometimes
stranger than fiction. I presume that I am the only
person to whom my father told it, and you are the only
one to whom I have ever communicated it. Secrecy is
no longer necessary except in this: for the sake of the
family, who are highly respectable people, I shall never
tell who B. was.”

<n
ae AR RS Hts ERR aN,

rosea pe oe pa aie A operate tren Tony is APA 9 le

MINTON’S MILL. 339

At the summit of a steep bluff, on the western bank
of Lynches Creek, near its confluence with Jumping
Gully, a sequestered, overgrown place, an explorer may
find an inclosure, some fifty feet square, surrounded by
brick walls higher than a man’s head. The lands once
belonged to James Holmes. The center of the inclosure
is marked by a large stone slab, bearing the following
inscription :

MUTATIS MUTANDIS
Here rests the earthly remains
of
Mr. Lovick Rochell, Senr.

who was born in the year of

our Lord 1754, and departed

this life in the fifty-fifth year |
of his age, leaving a disconsolate -
wife, son and daughter to lament

their irreparable loss.
“An honest man’s the noblest
work of God.”


336 Historic CAMDEN.

Thomas Havis said that he was employed as assistant
to his brother John Havis, keeper of the common jail.
That he happened to be in company with Jesse Fley in
the room where he is kept confined, when Fley said that
one Jenkins committed the murder; that Rochell had
offered him, Fley, three hundred dollars to murder
Minton, and counted out the money; that he refused to
take it; that then Rochell offered him fifty dollars to
bring Jenkins to him; that he procured a meeting; that
Jenkins agreed to commit the murder for seven hundred
dollars.

That afterwards a rifle was loaded with three bullets,
which were patched or covered with homespun. Fley
remarked that the cloth might lead to detection, where-
upon the gun was discharged and reloaded with bullets
covered with tow.

That he, Fley, went two or three times to the mill to
ascertain when Minton was there; the last time he went
Minton was there, whereupon he returned and informed
Rochell and Jenkins that Minton was at the mill; that
then Jenkins set out, but that he did not go himself.

Havis was brought back from Tennessee in order to
give this testimony.

Mary Groves related that she lived with Mr. Havis
at the jail. That she overheard James Perkins and
Lovick Rochell conversing. Perkins said, “Uncle
Lovick, G— d— you, you know you had the murder
done, and I must suffer for it here in jail. Jesse Fley
and Jenkins were the men that did it, and that night I
lay innocent in my bed.” Rochell made no denial, but
desired he would hush, being apprehensive that she had
heard what they said.

Rochell and Iley told her that if she would say noth-
ing about what she had heard, they would give her a
uegro girl. They called up the girl, placed her hand

MINTON’S MILL. 337

in that of witness and gave her their writing thereon.
Rochell said that Minton ought to have been killed long
ago.

Mary Crane also testified to a conversation, overheard
by her, between Fley and his brother-in-law, John
Moore, after Fley had escaped and was at large. Fley
said that he and Jenkins had divided the money paid by
Rochell for killing Minton, and that Fley was to have
two negroes besides.

On Saturday, the third day of trial, the jury founda -
verdict of guilty. | :

An appeal was made, one of our earliest reported
cases. The ground taken was that accessories could not
be convicted before trial of the principal. But the
Court held that in murder, accessories were principals.
The prisoners were sentenced to be hung on “Friday
the ninth day of June 1809.”

That day came. Tradition says’ that Rochell, some
gay his daughter, offered the jailer, John Havis, twenty
thousand dollars (this may be an overestimate) in crisp
bank bills, to allow an escape. To the honor of the
jailer, tradition says also that he refused. We note that
in the Camden Gazette of 1816 John Havis advertises as
keeper of the “Eagle Tavern.”

The hour arrived—Rochell to the last hard and de-
fiant. The morning he spent playing cards in his cell
with Fley. ;

In those days a certain tree, a gum, served as gallows.
It stood in the hollow just east of Fair street, about the
middle of the area inclosed by Laurens, Mill, Boundary
and Fair streets.

The moment had arrived, the throng expectant, the
cart with one of the condemned was at the spot. Ro-
chell alighted and drew forth a decanter of choice whis-
key, with which he had armed himself. The glass

22—H. C.


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808 S.C.

or ether series or installments, or at such
time as the City or Town Council may fix in
suid bonds, but not exceeding forty years
after date of issue with the privilege of re-
demption at such time as the City or Town
Council may fix in said bonds.” Act March
10, 1922 (82 Stat. p. 958).

The act of 1922 was amended, as to the
kind of bonds to be issued, by the provisions
of Act No. 158 of 1927 (85 Stat. p. 263), en-
titled, “An Act to Prohibit the Issuance by
the State, Counties or Other Subdivisions
of any Bonds Other Than Serial Bonds and
to Provide for the Retirement Thereof.”
With the exeeption of certain political sub-
divisions named in the act, to which its terms
are not applicable, and the city of Beaufort
is not in the excepted class, the General As-
semlily directed that no political subdivision
of the state should issue any, bonds, other
than serial bonds, when the issjie authorized
exceeded the total amount of ‘$20,000. Un-
der the provisions of the act, the first of the
series of bonds is to mature within five years
from the date of issue. The’enactment does
not contain any provision as to the final ma-
turity of all the bonds: Accordingly, we must
turn back to the act of 1922, so far as bonds
for the purchase of waterworks are con-
cerned, to ascertain the final maturity date.
In the act of 1922, as will be seen from the
quotation above, such bonds must mature
within “not exceeding forty years after date
of issue.”

We construe both the petition on the part
of the freeholders and the question yoted on
in the election as clearly indicating that the
frecholders desired, and the voters approved,
an issue of bonds, which were to mature not
Qater than forty years after their date. Both
the frecholders and the voters, as well as the
city council and all others interested, were
charged with knowledge of the legislative
enactments of 1922 and 1927, to which atten-
tion has been directed. It is not necessary
that the petition of frecholders, the notice of
the election, or the ballot submitted in the
election, should go into full detail as to the
bonds to be voted upon and thereafter issued.
To support this view, we call attention to
cortain language of Mr. Justiee Hydrick for
this court: “The submission did not specify
tho rate of interest to be paid on the bonds.
That was not necessary. The voters knew
that the bonds must bear interest at some
rate to be specified thereon, and they knew
that the commissioners could agree to pay
the highest rate allowed by statute, but no
more, and also that they could, and pre-
sumably would, fix the lowest rate at which
they could sell the bonds. It is impossible

158 SOUTH EASTERN REPORTER

to submit every detail of such a transaction
to popular vote. Some things must neces-
sarily be left to the judgment and diseretion
of those whom the people have chosen to
represent them.” Commissioners v. Bank of
Dorchester, 115 S. C. 183, 105 S. EB. 32, 33.

We may well repeat also the language of
Mr. Justice Woods in Dick y. Scarborough,
73.8. C. 150, 53 S. E. 86, S87. where the court
considered the wording of the question sub-
mitted as to the purchase of a waterworks
plant: “But there is no statutory provision
as to the form of the ballot, and the most
that the court can require in this respect is
that the voter should have reasonable notice
of the election and the issue it involved.”

In this instance, the voters, freeholders, and
city council all charged with knowledge of the
laws on the subject, knew that, under the act
of 1922, the bonds must mature within forty
years from their date, and they also knew
that, under the provisions of the act of 1927,
the bonds must be serial, as specified in that
act. The city council is endeavoring to carry
out the terms of these two acts, and for that
reason we are unable to find merit in petition-
er’s second objection.

[3] The third objection interposed by the
petitioner, in the language of his counsel, is
this: “The bonds are being issued for the
purchase of a waterworks plant and equip
ment and to operate same, and the statutes
of South Carolina do not authorize the issu-
ance of bonds for the equipment and opera-
tion of a waterworks plant.”

The act of 1922 gives full power and au-
thority to citics and towns to “purchase, oper
ate, and maintain waterworks.” The petition
here requested an issue of bonds, the pro
ceeds of which were to be applied “for the
purchase of a waterworks plant and equip
ment and to operate same.” A waterworks
system is bound to have “equipment,” and
equipment is a part of the plant. We sev no
real difference in meaning between the Jan-
guage employed in the petition of the free
holders and the question submitted to the
voters and that used in the statute, and think
the objection raised is entirely without merit.
See Green v. City of Roek Hill, 149 S.C. 234,
447 S. 1. 346, and Connolly y. Beason, 100 &.
*, 74, SES. E297.

It is the judgment of this court that the
permanent injunction sought by the petitien-
er be, and the same is hereby, refused, and
that the restraining order heretofore issued
be vacated.

COTURAN, STABLER, CARTER, and
BONHAM, JJ., concur.

ee ee

vy MIA ROME AM

PIR eee at

STATE v. FLOYD S.C. 309
158-S.E.

STATE v. FLOYD.
No. 13163.

Supreme Court of South Carolina.
“ June 5, 1931.

1. Criminal law ©=598(2).

Record held to show that denial of con-
tinuance for absence of witnesses was not
abuse of diseretion.

Record showed there was no compliance
with rule of court as to continuance of
eases for absence of witness, that no affi-
davit showing materiality of evidence of
witnesses was made or that proper efforts
had been made to secure attendance of
witnesses. Court did all that it could to
aid defendant to secure attendance of de-
sired witnesses, two of whom were se-
cured and did testify. Third person de-
sired as witness did not attend trial, but
there Was no showing as to what he would
have festified to had he been present.
Prosecuting attorney voluntarily had case
put down for trial for succeeding Monday
after defendant’s counsel had consented
to trial on preceding Thursday,

2. Criminal law @=1144(7).

In reviewing denial of continuance, Su-
preme Court cannot assume evidence of ab-
sent witness would have benefited defendant,
or changed result, in absence of showing what
evidence would have been.

3. Criminal law G=586.

Granting or refusing of continuance is
largely within trial judge’s discretion.

4. Criminal law C121.

Denial of change of venue to defendant
giving no notice of application and making
no affidavit showing impartial trial could not
be had in county held not abuse of discretion
(Code Ciy. Proc. 1922, § 34).

Defendant seeking change of venue fail-
ed to comply with Code Civ. Proc. 1922, §
34, providing for notice of application to
solicitor, and affidavit showing fair and
impartial trial could not be had in county
of trial, but only when about to face a
‘nry did defendant claim that he could not
vptain fair trial in county. Defendant
made no offer to support motion with any
kind of evidence, and presiding judge had
opportunity to observe conduct of audi-
ence at trie’ and could have detected any
indication that defendant could not re-
cove fair trial.

]

+ Criminal law C1150.

“Lotion to change venue rests within trial
court's discretion and will be interfered with

only when discretion is manifestly erroneous-
ly exercised.

6. Homicide C151 (3).

Law of self-defense requires one who
pleads it to show he was without fault in
bringing on difficulty.

7. Homicide €=244(1).

Evidence held to authorize finding that
defendant in killing husband of woman with
whom he had been having illicit intercourse
was not without fault in bringing on diffical-
ty as regards defense of self-defense.

Appeal from General Sessions Circuit Court
of Aiken County; T. S. Sease, Judge.

Albert Floyd was convicted for murder,
and he appeals.

Affirmed.

The following is the statement of facts and
testimony appearing in the record ordered
reported:

Statement of Facts.

On the night of September 29, 1930, the
dead body of one Howard Bell was found
in Aiken county nearby the Aiken-Augusta
Highway. Within a week thereafter the
appellant, Albert Floyd, and one Mamie Bell
and one Floyd Darnell were arrested and
lodged in Aiken county jail on the charge
of murdering the said Howard Bell. The
court of general sessions for Aiken county
was convened for a regular two weeks term
on Monday, October 20, 1930; and on the
first day of said term the grand jury returned
a true bill on an indictment charging the
said Albert Floyd, Mamie Bell, and Floyd
Darnell with the said murder. Before the
convening of the said court all of the de-
fendants had engaged counsel, R. G. Stone,
Esq., representing the appellant. On Octo-
ber 20th Mr. Stone, by letter, requested the
solicitor to call this case for trial on Thurs-
day of the first week of the term, advising
that he would waive the usual three-day
arraignment. But the solicitor set the case*
down for trial for Monday of the second
week, October 27th, to which the defendants’
counsel all assented. At three o’clock p. m.,
on the day the case was accordingly called
for trial, and all defense counsel announced
that they were ready for trial, Mr. Stone
appearing for the appellant, Mr. Carpenter
for Mamie Bell, and Mr. Taylor for Darnell.
The solicitor then stated to the court that
he would first proceed with the trial of Al-
bert Floyd and Darnell. At this point Mr.
Stone moved for a continuance of the case
on the ground that he had not had time to
prepare his defense, that his client was with-
out funds, without friends, and did not have
his witnesses ready. The appellant nor. his

¢>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

158 S.E—514%4

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94

are looking for some other fellow. I am
late now, Senors.”

Aros widened the distance between him-
self and the Immigration officers. He ran
with the speed of a hunted man.

Twice the service revolvers of the offi-
cers barked as they fired over the head of
the fleeing fugitive. Aros did not stop,
The officers lowered their aim. A _ bullet
tore at the foot of Aros, sent him sprawling.
As he scrambled to his knees, the officers

REAL DETECTIVE

seized him.
wrists.

Pro wired Lopez the cheering news. The
Immigration authorities started for the
border with their prisoner, while Lopez and
E. E. Brown, of Maricopa County, raced
towards Nogales.

On July 11, 1938, Andres Aros entered
a plea of guilty. He was taken before
Judge Howard C. Speakman of Maricopa
County Superior Court. He stood with

Handcuffs snapped on his

bowed head while the judge sentenced him
to spend the rest of his life behind the walls
of Arizona’s State Penitentiary at Florence.

As we closed the files on the Moisses
Diaz murder I congratulated Lopez for his
good work.

“Tt was not much I did,” he said. “Only
my duty. But I am glad, because now the
parents of Moisses Diaz and ali Spanish-
Americans will know that in the United
States, there is only one law for all races.”

m REAL

DETECTIVE

that killed August Reiter and his dog was a
forty-five.”

Shortly afterwards, Smith received a call
from the sheriff in Great Bend.

“Colonel,” he said, “I just learned about
an oddly worded telegram sent by Lacey
Cunningham of Dodge City to Harry Pyle
in Hutchinson. It said, ‘Santa Claus kicked
in with turkey.’ The thing that makes me
suspicious is that Cunningham has never
had any loose cash to spend on telegrams
about anything. Harry Pyle is the father
of Babe Pyle, and Babe is a_petty boot-
legger. Isn’t it possible the ‘Santa Claus’
he mentioned was the Reiter brothers and
the ‘turkey’ their bonds?”

“T’ll check on it immediately,” Smith as-
sured him.

WW" Hurcuinson and Dodge City
authorities were checking on the tel-
egram to determine if it contained any hid-
den meaning, Otto Reiter revealed that

KANSAS’ TORTURE FIENDS

(CONTINUED FROM PAGE 55

while he was being tortured he heard one
of his brother’s slayers mention the name
“Monk.”

That name meant nothing to Smith; but
it did to Undersheriff C. M. Davis, of Kin-
sley, Kansas, when Smith told him of it.
Davis knew that Peter Ryerson of Hutchin-
son often was called Monk. He was aware,

also, that Ryerson had relatives in Kinsley.

He decided it might be well to keep a watch

on the home of Ryerson’s kin.

While Davis was keeping watch over the

Ryerson house in Kinsley, Schriner remem-
bered that when he regained consciousness
in the Reiter house, he had removed the
handkerchief with which he was blindfolded
and placed it in his pocket.

When that information was relayed to

Colonel Smith, he immediately obtained the
handkerchief.

on it. The following day, five men were
arrested :

He found a laundry mark

Franklin McCullough; Allen
(Babe) Pyle and his father, Harry Pyle,

all of Hutchinson; Harry Dawson of Fow-
ler; and Lacey Cunningham, the man who
had sent the telegram to Harry Pyle.

On January 1, Undersheriff Davis’ vigil
at the home of Ryerson’s relative was re-
warded. Ryerson made his appearance and
was placed under arrest. McCullough and
Dawson were released, and Sam Harley
was taken into custody.

All denied any knowledge of the Reiter
crime,.but they were locked up nevertheless.
When their preliminary hearing was held
in St. John on February 9, Cunningham's
testimony took his fellow suspects by sur-
prise.

He said the Reiter robbery was planned
on December 21 in the home of Harry and
Babe Pyle, two days before the crime was
committed.

They met Ryerson later at Harley's farm
near Kinsley, when he and the two Pyles
drove to Garden City to get the Pyles’ car.

Since all claimed to be innocent, none

HELD IN ABDUCTION

ee

Hampton Lee (1), Hugh Evans (2) and Willis
Evans (3) were held on the charge of robbing and
abducting socialite, Mrs. Mary Ross Walker near

Columbia, S. C.
beaten and robbed of money and jewelry, then
she was set free and allowed to return home.

She was taken to lonely road,

RG Se ae

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would admit he kn¢
bonds were. All «
await trial on chat
der. Harley, how

and when R)

jury acquitted him
That left only t

ningham in cust

h

Cunningham never |

he turned State >
against Harry a
were convicted in t
trict court in Ma
life imprisonment
while Harry Pyle
pate in the -
had helped t
The fact the |»
and the convictet

knew nothing about

Smith that others-
mentioned hy any
implicated in the ¢!

When Jolin >
the injuries he ha
Otto Reiter con
Smith determined
he had cleared 4
the case.

To that end,
the state penitent!
Harry and
questioning.
talk to Lacey
piecing together '

1
rie
Cy

the three ime
crepancies |
he suddenly pou
Mrs. Mary
was arrested
Her Ausband,
from cA cell in
was serving as
tery. ‘
Wilbur Stove
dard, Kansas, !
car theft, was *
On the nig!
Stover, Babe
were placed |
St. John. Ther
they were Inve
der and the
John Schrinet
their confess

There wert
in their storie
and Hudson

that Hudson =
vised the tort
claimed he cic
that he mere!
used.

He said he
tion aiter t
fired the sh
Both Pyle a
drunk

Pyle ; |

honds to

cars whi
School
or three

cause |


— A Be a Be Fi Tee

VA] hAD, dé i’ 5 anged at Ldgefield
EVANS, Thomas, and READ, Jamés, oS iase g ‘
3outh Carolina, on February 9,

wasnot fost, | |
em OD C000. kas .
a . Evuxrisiy Cit: Feb- nk |
Execution of Read and Evans.—-In pusuance of the)
sentence of the Court, Jaties Read and Thomas ievans|
were executed on the 9th inst. for Negro-stealing.;
‘These unfortunate men were convicted at the last vd
Term upon the clearest testimony, and appealing rs ‘
out success for a new trial, were sentenced at Co fum-|
bia in December last. They were both strangers,
among us, and we believe in the State. Read had ree
sided in Philadelphia, and Pittsburg, Pennsylvan'a, zi |
has left a family in N. Jersey. Evans claimed to be),
last from N.Carolina. a
In our last we pblished the reply of Gor. Butler o
the petition of a portion of our citizens. in ‘behalf hee eG
Read; itis proper to. state that a similar effort wa
made for Evans. No one, we think, ever epee
the interposition of the Exccutive. The proof as
guilt was conclusive, and no Mitigating cireumstance |

could be presented. But it is natural to. expect that)
in a refined Kid Christian community, the sympathies:
of individnala would he errited we: 4

oan FAR wee EF ers were we. ee BAW LAL Pe we » saw eve ~ ee

guilt was conclusive, and no Mitigating circumstanées}
‘could be presented. But it is‘ natural to. expect that!
Jn. a refined aid-ehristian comimu nity; the - sympathies!
\of individuals would be excited. This was the case int

» as

ithis instance,-and-while we doubt not thatthe Govern]?
| ‘or has done his duty, we know that he fully appreci-
‘ates the motives which prompted Uie benevolent ef.

[forts of certain of our citizens. . ait

About 1 o’clock the Sheriff, followed by a large.’
crowd, started to the place of execution. We are’
informed that the prisoners manifested very deep!
feeling, and that their Jast moments under the gallows:
were spent in earnest prayer to God for his mercy |

er ee

v/leeé hep BL (cel

lhe , Alo tema

narod (5, 1393
a,

Mack seal


April 12,
O

tate.

G
od. ar 1907.

SE
MENT.

ayo eee

'

Leet meets b wil)
Wrath ber we Maria
followed the Crtef
Pharm, AL whe by ot tne
partedre dy cermesieced |
potted Shyer peri mertier
peed reetrperere Phen thie
bP ogtve out the fou
tatement.
every man «en the
erage oo tnitelilgenee,
ry. bolton, cosipre-

eviderrg and tal-

tual Ail my famey
Doce age Tf trust
1 Meeq we it

Thaw sald he wae
i

iy expeet anything
eyenta of the pusst
ed. Earlier tn the
Pout another 4tace-
aid he destred
JSud@aedt upon the
the Brate of Now
fthat the evidence
need even Distriet
f Kis inneocenee un-
of the law
Bi, MG conducted
tan in naeeh-
up i es to the
oat | y to the
cr ‘dementia Amer-
ned it, Was mot in
the jury made its
“Narged.
WW. Hlartridge, the
and warm personal
ave the following
aszoctated Presa:
alreudy expressed
a trint under and
the iawe of the
I can add noth-
. ta say that I en-
him and hoe that
w trial speedily and
it will not be nec-
Hiding Judge to have

that we are living
nunity "
pw oma:

ndoit, don't nee

, have come to some

o Mrs. Thaw: ‘The
i) nye for convic-

ft,'* sho cried em-
ought to haves ac-
p #vidence.”

law, mother of the
to ay anything for
Y time.

" Net Constdered.
} proceedings in the
y were learned 1
od «in interest mn
‘ings which brought
a clone. It develop-
ad considered every-
ith the case exzrept
ww.” Rasing their
upon the evidence,
for or ag&inet mur-
gree when they cnal
The firnt vote was
favor of conviction.
| to reach a common
dict of manslaughter

the imen®s for
A it n of 0
nt. men in
l—largesy On the

y--It ia aald, would
allota and In the end
aide one of the eight
fiction. During the
of dallberation, only
taken.
1 Ballet.
was taken just be-
wunced Ite disagrees:

Weve

thea,

GREAT OVATION.

FOR MR. STEAD

—

Plan For the Peace Movement
is Heartily Endorsed.

PILGRIMAGE TO THE HAGUE

Colleges Agree tu toutribute Fuad
fee Geading Lielieantes te inter-

nutlomal ( salerenece.

Pittsburg,
Close of an
Stead, editur of
Londen, Fingiund,
ceremonies of
vf Pittavurge tate tuday,
apeaker announced
$100,000 necessary
grimage frem countries
Hague conference advecated tn a re-
cent New York uwddreas, unbounded en-
thuataam took ponmeasion of the jarge
audience and money thrown
the floer of the stage.

{*2.

address

Apert! Jn-—At the
by Willinm T
Review of Reviews,
the rededlouthed
irnegie® jnetitute
In which
Plan te

the

at
tho
the
a rise
ooudurct

o

ail to

wus lo

Probably never has a public speaker | night
been Kiven such an ovation in this city. | Dues saya Evane Naw refrained from |
The lghtning-like mipidity with whiet | saung every Friday since he was sen-
the pil- |

Mr. Mtead'’sa pian finance
grimage began almost tcok the breath
of the distinguished foretgn and Amer-
{can gucaia attending the meeting. Mr.
Stead, afier explaining the purpose of
the pilgrimage to the next Hague con-
ference, estimated that jt would take
at least $190,0G0 to finance the propoal-

to

tion. To ralss this sum he proposed
that every bey and girl in callegae
and untveratties throughoutout the

United States donate 60 cents toward
the fund needed, He raid the lesson

furnished to Europe by such a move-

ment would be an instrumental factor

in the quest of International peace,
Skewered With Sliver Moaeys.

The suggvetion came at the end of
hin address and he eat down amid loud
applause. For fully five minutes the
clapping and cheering wae prolonged
and finally the apeaker again arose and
said that probably the audience would
like to contribute ta the fund. Imme
diately. a shower af silver money lend-
ed on the stage, coming from all parts
of the muste hall.

Among the invited guests on
atage were many presidents of
verwities and colleges and at the o
of the meeting tha following Inatitu-
tiona, through their heads, decided to
contribute ,to the be pr .

Knox coNe e. Galesburg, Il, Dr.
Thotnas McClelland, dent, Alle-
heny college, Meadvitle, Pa, Dr. Wil-
jam H, Crawford, president; Tuskee-
seek Normal and Industrial iInatitute,

keegve, Ala, Booker T. Washing-
ton, principal; Geneva college, Beaver
Falia, Pa. Dr. Johnston, preaident.

It le sajd tonight that other col-
legen will announce their intention to
contribute shortly. The = Pittaburg
branch of the National Peace pociety
haa taken up the matter and the
Grand Army poate have presented Mr.
Stead with a renviulion of thanks fur
hia efforts for eo.

Banquet fer Mr. Careegte.

The banquet atven by the hoard of
truatees of the Carnegte institute in
honor of Mr. and Mra. Andrew Carne-
gie, the founder, was held tonight et
the hotel Schenlay, Mr. Carnegie
made hia appearance at thie function
after betog sabeent all day, due ft

the
ni-

COLUMBIA, S.C. SATE

“FIRST HANGING

KILLED HIS BROTHER-IN-LAW CONFERENCE AT LYNCHBURG:

1077

hirherate .
pace > a

fas a
NOLAY 2

RDAY

MORNING, AVPRIDL ta,

EXCURSION RATES
OFF ON SUNDAY

— eee ee -

1e

IN GREENWOOD

—_—

Joe Evans, Colored, Pays the. Agreement Reached Between Conviction
Penalty For Murder. Railroads and Churchmen. ere

3
=)

| MAD

JUDGE RU wr

lew
|
Made Kull Coafeaston of (Crime aad, Subcommistee Named ta Draft Mill tel A pelteastt “i
Dectared Me Waa at Peace With } tae Uefere the Newt Virginia Pustofier; Sh...
Ged and All Men. | Legislature, i Rilow t+:
Special te The Stare. Lynchburg, Va. Aperth Po At a cone aye jabra TY |.
Cireenwead, April 12.—-Tho frat hang-, Foret deere techy bet weeny avg terme | mp oerturtean |
Ing in thie county pamred off very TESS ef the Noefork cand Weotepr ip cing of a ju
quietiy today. The negro Jon Fivans,, (teepenice and Ctite ard Ss atlwrn |: meen try teeny
Comsvteted of murdertig hia beother-in- | rubways WIR an iter denomina Goda | Sr eB i
lea. appeared composed and resigned. Pure ccetisataatoen. the cathy ty pear vector, tel
Iie showed no sign whatever of either) bie were) db ota the thw tinuige fith eff.
fecroor nervousnemm® fn the moretong sunday excursion rates ino the eects | Meee ceca “4 J
twe colunsl ministera were with hina, , ~ BUb-Oorinitttee Woe ruammedb tor te ola wouy far tte : i
praying atl singing. These two preach) eh Se ms ee he eee ee yee fewest
ere Hevea J) Goode and Jobn wi) une leeminig of thie prevention et} ongy meow qi
Seink, remained with him fo the fast. | cheap cates ion Sumbsy und Co pace Che tinea oft 7 ‘f . i
Eivana tid net eat any breakfast, He- | Nate corer. tion crimeiniaston ri chertey | rags y ehapid oy Pes H
though be ate a Rearty supper last to thdicate whit are neceasary peeae toe Wo bdodimeg oo ib Gee ote
and slept well, Deputy Sherttt aenger aod fresght trains to te Operat- og Nba = v& 7 :
edo oom Stuiediay Atiether confrence weil antal offered o
be Deld here when the bill te ready for} when the fule-
teaved, thartiy before 12 wre: conatderation. bat Mnaiy tt ae “4
Sherif? Metasian had Evang imade = atid (fe cau fe *t
ready ‘ Jeave the Jalil and said to | MONUMENT DEDICATED Prodbow trae a. :
um. ‘Joe Evane, thie fa your last) “ oy | Jury Weolor te
° wide
#oene, itis the State of South Carolina) TO THE “ROUGH RIDERS tM. Turby fl ae
that is going to hang you and net the; cee L.tlew, Mosenl sory
aheriff of Greenwood county Tam go-! Present Raosevelt Delivers a Prtrt-} ht. Meows, J]. ast |
{ng to read you my authority for: otle Address at Kuerciace ae Fo oJ. Mebep the fe me
<é Artingtom Cemetery. Mo Waid | TR . 4
harging you.’ The sheriff then read Washington April 17--Preaident | - - |) met! oe oe
. ° ° - he aafeio fe H
ine eliipakioniaam When he had Anished. Roosevelt made a rpeech, in which he ling Sulit | Hl
vies vue oan ed Gre touched mainly on patriotiam and good | early FLUO toes
and eeemed perfectiy realgne al. . , , night of Noy og
then made thle statement, “ft have citizenship, at the dedleation today of The delet! jes
made peace with the Lord. T am giad the monument erected to the memory [eg porstoific Yio the
that he allowed me time to make peace [of the First cavalry, United Statea vole ling in the eq) tract
with Him.” inteers--theHough Kiders—of the | Nemes were |) tual
The march to the scaffold was then “ hea . - ‘ - t jp sudan ruled \' Aw
begun. Standing on the platform, |? panish-American war in the Na nn elther have ja pe
Evans asked the sheriff if he might| cemetery at Aritngton, Aire. Allyn Kobor leave the || atic:
sing. and upon permission being given. | Capron, the widow of Capt. Capron ot | jected ta thie! sued
he sang with ateady voice one of thel ine Rough Rider regiment, who fell at only oman inp | come
songs used by negroes in revivala when] pag Guasimaa, pulled the cord holding | quainted wit learn
feciing js tense. There seetned no #9®-line American fag that covered the {After some li) whee
cal beginning of end to It monument. Hey. Dr. Do J. Stafford of ter, the Jud! that
When he estopped aingins Rev. Jonn Bt. Putrick’« church, thig city, iWuade aAppleation ¢ | Het a
W. Swink. colored, offered a prayer for ling dedication addreas, and Chaplain | tendants Lon At = ‘
the condemned wan. Kvans himeet€) i: al Brown, U. 8s. AW pronounced the | ga out of {i Wilts
proves in a low tone all the tima Rev. | penediction, left. |b) about
wink was praying for him. At the! pegular troops and part of the Na- From thot {no sa
conelusion, Bvana offered the follow: | tonal Guard of the Diatrict of Colum- | prara thaneir | about
Ing prayer of his own: bia participated In the exercises incl. Jory, whothes) carti«
“Lam at peace with all men, I am] gent to the dedication. They Included | and How | tively
gullty of the crime. Lord, 1) thank) (our troaps of the Thirteenth cavalry, | a atrong Netr) made
thee for the time you have allowed |, nattallon of feld artilery, four com: [instance Bec- | The
ma Go with thy people who are! nantes of the District National Guard | most ceriy t wroua
standing around me. 1 am eo glad Il ang a portion of the District Naval Re- | submittem the) was i
am allowed thie privilege to talk. Oh. ] serves The president, accompanted | mest pep de- preval
Lord! Oh, Lard! Oh Lord! 1 brought] prom the White House by Lieut, Gon. | Howard rates noon |e
my sina to you and you have forgiven) « oof. Young, retired, and Maj [berry of | work : Ma - j
eyo Frank B, McCoy, hie naval aide, was companp.” the oan
# The haneman’s black cap was then] jee at Fort Myor by Capt. Preston's era kedp~ boca Med) | t
lowered over his face and at 13:34 Dl inpop of the Thirteenth cavalry and en- Hon p, and} beara a -
m. the trap wes sprung, and 12 min corted to the cemetery wales, where |iter Sea men) mere then
utes later he was pronounced dead bY | iney were joined by the remainder of able athe that) (ences \. 7
Dre. Hood and (wens. the military and naval contingent, in| well inpceded Offer mem, :
Rev. J, C. Goode, the colored mintstet | ing march to the monument. A dis. j shaved Mra. .
who prayed for the negro who Wael tinguished company assembled on the , yireceive the 129 A : :
lynched for the attemptiad aaeault 00 | grand trom which the president deliver: If New aala-] new OOM, ie
Mise Hreoks last summer, wan also ON) og his addreas. the petmonth, | eratie ex i
the scaffold with Evane and had been) 4 number of former members of the of the! ty and ) a
with him during the morning. Rough Hider regiment are tn the rity the Wisct of —— - |
At 12:4 Ryan’ body was cut down.| ang worn Invited to seats on the stan Flahere upon Sibi Iw |
His neck waa hroken by the fall. Hie!” phe ynonument fe the deslan of Mra |° harltnot he the law, | |
body wan turned over to relatives WHO! eaoron and stands In a good location ley.” Vive en
carried him to his ald home neac In the reservation. It fe ® tMoneltth, eater cethale, Rpectal t4 I
Coronaca for burial | the largest of tte kind In Ariingten i. "Fon INA) Marton,
_ It fs invade of Vermont granite, stands : 7 ee! jn efahel “Narth
mA pte Ae Acer haa : eye tet _,

s 9

‘dition

be Ty State

a NO, S905

*

ERIFF M'CASLAN
DIES IN GREENWOOD:

{
fa tone!

ot Vite

mebsrate a (aptain

Sheriff

of biraktine,

fecle rate Sevmy, aoe

Counts staee tte ft armation.
1 tate

corel Muay
ahertf® of

country

home

ther

wn, ‘ seta rns

sane Ue wise fren

Mog

+

sed
abeat

cost

Mityer

noo.

for

offlee at
Yeautrriay
at

io uawell 460i,

1s

4

tre
end

Wete

m weith . '
Me Caulanm wou
tworay
Springs.

Bette
Ate:
pared force

teae her
fret Fee
fra
bear

eat

few was pre sede gee ie

seotoad mente Aart

net
eye

"
Kraduated
Woaeat, tn USSe
le cobiterd upper Ce
sis and entered
sate rie mthy pereartierté
f erspaamyy EF.
ina reser nit.
Hf seryiee

it tern

“Sae
lrue
“wae

State

at
hye

aren

« ty

t
Nineteenth

Marigatiit =
ia “al

rs
siege
hor
hat’ aves
entered
trust
in his
hie
frersey

oe
hes
aay

pryvuarnits’
t)ve

a OMi  aniaAn
after the war,
af tofloen
Ninety + Ste.
represe mtathves
ceunmty ta the cometitutietialt
af sey. After the formations
weod comn’y he aheatued
aherif and has held the Aa
His present terns of offfee for
yeura explren next yeur.

Capt. MecCasian Wan nw Cc
ber of the Presbyterian ebuteh
represented the ay ned of ttvis

ad
“
. ;
eat

N bate
nae
ef
witn

Rybte

weed

state we

feorsy, |

mem,
j

one of its delegates to the general
nxseinbly of the F*Yreatytertan etre ty!
when it met at CNarttianecgee aeserai!

venrae ago. Hea waa Mason. a renter’
of Greenwood lodge No of AF M.
and alee amember of Cpreenct aod «HAP:
ter. Heyal Arch Masons, Nog

wre aA member of aeveral other neeret |

orders alse

tapt. Met‘aslan te wurvived dey bets
Midow, who wae Mins Komalie Vincent
| Walker, te whom he was rrmarriecd
I June 12. $478 wad the frilowsng + bile
Wren towers, who ta with the Chiek
| Springs Hotel company. Ho F. drone

of thy owners of Lae a drug satire, Miss
Hosaile, @ teacher ta the Creen weaned
wraded oo achoo), Clark, 1% student at
Clemaon college.

The burial will take place tomaerrow
afternoon here tn the city remolery.

TO REVISE FREIGHT RATES

Geacral Fretght Agvet Shaw of the
Southern Vietta (atery With View
ef Equalteiug Hates.

Special to The State,

Gaftuey, May &—Mr. FF. Hi. Hhaw,
general freight agent of the Souther)
railway, caine to Gaffney Friday and
proniimed to revise the creight characs
so as to give Gaffney the naine fretaht
rate aw is enjoyed by other nel@ehhor-
ing towns, This will mean a saving of
many thousands of dollars annually to
(laffney.

Mr, Bhaw [s no strang
ae be was for # long
agent for the old Three C's read,
| headquarters at Hlackeaburg.
| Prof. Dubre of Wofford college was
Vier Pritay wadth hie geolomy

to Gaffney,
He mollciting
with

{

, ‘

the |

i

|

i
i

|
\

|

MONDAY MOURNING, VAY 6, 1907.

NAMA
TARY TAFT.

COLUMBIA, S.C.

LABOR CONDITIONS IN PA

Secretary of War Makes an Official Report, Which is Endorsed by the President, in
Which He Declares That Men Now Engaged in Work on the Isthmus Are
Paid Liberal Wages-- Favors Gradual Increase in Pay for 2

Time of Service —Health Conditions Improved.

Ss uv ‘ rey pa dre Hbek tre Prva de ert eee gee r (ies 7" eg vf ta caw "
- ~ Lm, {-' fare resemosngaeteler Payers she peters , ee | ' :
“ ‘ ' To oceteram etry es abe t 1? ee footie
‘ estert wre peut ot ae of fertae wig t te
ret = a? rea Mev or part tooth ' spreyiaei ‘ Ste
. - he Mt mat are ert : me : a olate
i . . joer “nt awloest . t hou \ eae
hyve rs fotivese pated ' the we . ‘ys - ! ‘
’ rN “ ‘ at tle wameg ottiis ts ' ec , ay ? 1 eae " . Z
White HH ete Ire atfertiadtvantages of the ta evs i +! thar t J
‘ toe so apgres as ft tCoastaat Mimploroarent. wid er the present te ;

’ were P “ ° * ’ ' “Th, Pho om tent ahoved roel 7 of : = toc ibmenesct rcs : . }

: ‘ ald ae ST eta an canta tf ormen th netant of ta teers belted vf ! r Y

Secs uf grote uf tieswed OF rerpedery ervenyt es ee or td woochaboos { feel tty ‘ f

aroad eriagelerye ' ate amy shovel el moyen in ere State sat ne toexpe ‘ i at ” pet oD 18) }

nee, eth bra ok er xineera, ee rnemen eonpiovedd orrrere Ui poy tenets woutd seork mae hotocre ‘ ) F
rat flren . } tine Ver Vhis a e trope thre tere, ware The thre nrysbaat cis : ‘

a Aron s ' « thon te fe ravi: “fhuted cre Loon pope Dated aerieen naw fragy ih '
Treetpyer enigt me *sereh, Cavan? Conttet states by wirter ¢ myedit tena nef rea? ¢
thon Crag ce ie 18 sadpes Dey the eceaaary beter vere ties rye ; ‘Takeo Inaue VW tthe Shevel Men. '

tthe of ¢ erat « ’ a Wey beter change of conttacts Mri} Beery Tart takes beset :

. Stesena eatiinate de that evory SG at efeain abovebl ine no thet ’
= <4 . pet « oth Se shovel tran in the states sebyerided carat rt othe were *Yiae bal
Apo Poem mew remus wert toad cen ak dess oof four inertia fisted of ene a ograhiuaab Poore as tt \
joa roo4he hs count i tiree in enech year Phowever, we cn) Ret weed that core Pe rectee they hat 8 e
Lesgvees ' t w 3 ryt tea "Maree ve peek ored haere oegeats atlet s ter os Pecerse =
of wate lene On thee qars ns cg tte AP apt ttn aes Wie rater ries ‘ : “
— 7% an 3s nf ogeaw feer ature shovel emagineera in and thepeferea wats re ore “f
retary srye D Aleka, a8 before «tated ds cand top dfe eacva that the freremye KES focse
' ik
Vhe cad regishatiar a were abe PT eet oe Soke, Inonth but we are net aed Vorenter Cnn any poreattte te ant ;
Cin tte qerireterd mre ce mien sent «uti ied ge otee othe cctreumstances eure Chat, rere. er, there Wow aw s _ . i
) ‘ rounding this employment eee epee Chat! the contrive? ¥ printed AUBrtaerngers rare , ;

YY the comeirnimeden @ ge ote te taduce i we enn reasonably opresuine that thei’ hieh aesures these employes ot aan ! {
persone co we te the iechimue ard enter working year there would hardiy exe)" loft ream OF peey Bee aeteds, tees
thre erty er Chie car aaritmaterts mo that ceed alton aeven months, lever, ttrat the wey erttpend may haa ; \

HGecomd Beery shovel man oon the’? Tord fn dts own interest as weiloos {
every man wl ve ‘ ath-

ery Mas va has come te the | lathrius da entitled to atx weeks leave in the Interest of the empiyes Saaeereee
tinug has come there with the undef: with pay asa vacation, so that he re: “ premium for Jength af rmersvice, Teh lie
stunting (hat the eid: reguiations were celves T2omontha pay for 10 Te. inen ths aacobtatna da Che aernny a" re a -

Z aryefietie byeet yas yee ny '
ter apgpey am pratt ef dis cantrabet of) Work jin nefation ooo thhe aubyec Pires -
Third. Steam ahovel men oon the mt Oe and the coprerep saben ”
service lathniue werk but etaht heart a day, | aires het by the prestdent ta put the om
Ae ta Old Hegoulatlen«. Wherena ‘any, themgh net all of thetplere fee offer to atoonee Tt provides al! :
“Tt xeeina to ome that sowed faith re: Vateamy abevel amen fa tie United States); yearly Inersase of Threa per 1" ont ed = t
: ork ' , oe oe ~ tymbes rates poeke ter allow Ct
quives that the old cegul vttons as toi OTS for ty hours a ay acaor oe peatd duetora anid cal
; (  'Rourth every employe of the isth- | workmen, engineer COPE TOES eTEES ,
leave ehatl aot be tnatertally CRABEOT ye de permitted. tf he fall xtek wechanion whe are from the United “ ia
‘ ’ if : . hy . Ohi:
aod shail remain am part of the cone enjoy J days sick Jesaver with peas i Sey tee, Tt with be tee eanary, tied 6
' ; . 7 . “ ? nerd
traet of nepytee of theme now on the: — Rife Tn addition ta the stek leava lever, to Ps nv i | Pea hates ie “ e ‘

; theave mentioned, 1 tha emplerve re-joertain claves. vi MUTE eb vraag :
attivmy a . je there arei* ° ‘ H wi as Yue
lathes, cord thet, whl " Sl eotves nn infury during tia work he bent, To the sabaries nf wom Of oe ‘
eine provisions in the new regulations! te entitied Cr an additional 30 days’ sick | steam shovel men and other emglaves | ain
ahich would make for the more etrine | leave. | sieve and will fasure ha eg a, - i . ve

loyes, | and when yvedr yy aben
Kent enforcement of the government « Coat of Living. eat oe pi tee tn the class redches) carels
“Sixth. Rvery or - : , ,
reports arg more cercainty AVN POST ay, : 7 ‘ata quae rat hae the required pertod , tively
“4 ee « ers or ihe . 1 ‘
sible fraud, they would net be male | eelf and family free, with modern 8 ee | el earn fey ‘Gor ete
: . a “40 vice, saya Bee: re
applicable to omen who came to the plumbing conventencea, with water, Cu- lary Tat! Tom ave atability tei wroua
ve . retary . y H
fol hen suighiah liga ae reeniations oe. Badly Rages gy : iebibietary hl the organization and will inodecate the. “Wash
the s to all necessaries A . wen
Taking up the subject of summary! cot) ta comuniaaton empluyes The tendency to frequently re phen Am. | preva
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diamiasal without hearing of giving} married men’s quartere are generally oo Ae inc ciae pel iod a re arte | to Ma
. 2 wite a pen “ 4 } MMe
rensons, which wae complained " ahd pe ee Le igs Maal tela in ey Nfe a the tathmua develop.” the ove
. enmtie . ’
the canal employes, Secretary Taft) SEEN a Ae att i, rv The petition of the constructive foca- | Men.
‘ , iw

nays that he has given his approval, yonable rate at aA mesa house or hotel motive engineers neat eon me poe ; aac .
: ac yermey opepeery) mere Cheves

of the plan of Col, Goethals, whereby | The coat of food and necessaries ta Ae ene eee yee that | toners

; . re . wtartec ‘ « 1% 3 ' . ’

of auch canes about what it fs in Faastern citica, or aeeme to be eoncededd | OPE IKON

it fe proposed Co dispose Inasmuch aa ft

clase fort

slightly higher.
through a commmittes constarin’ of ane Saaventh: Every employe tn entitled that they as well ae warn weet re the Fale
+g . + f eoaoee
representative of the erat? of the em-|to free medical attendance and horsplt- engineers In the = ee ool
- o ” . t ae .
ploye proposed for Aiemtiasal, obe rep- al service, The medical visite of the art old ee Nahe at $120 a month, | eratle #eUb,
renentiog the foreman of higher um. {rommissinn Enyetclan. Ate . cane the amount asked. ty aod ®
pobvesc ) each, 1 th
celal proposing discharge, and one rep jiyae Col Goethala advises me Chac this Hecretary Taft nays the subject of eenpole as \
renenting the commission, nnal action | ts to be dispensed with, overtime waa the enaly point upon .
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to ba taken by the eon snitaahon- | “Mr. Dolan says that if quarters are “4 1 betwee the Jnocomettva eh
Murh attention In then given to she | eaited many of the contractors in the Sendial Mic Mtevens and Col, Goethale. Spectal t t
‘nited Rtat ’ : : | Spee ¢
rueetion of wages to the steam anovel tree inoue wil} furniah — butt) ay pasta of an operating day on une) Sau lien:
el "

fatnrius, North

s

as ial — Eade aay 4g Neeccetary “Taft 1" ant


ee Me ae eo

390. ~—s« 8. ©.

and what was the purpose of their visits.
The inquiries for officers on the part of Sut-
ton were preliminary to the matter of giving
a report that the crime of rape had been com-
mitted. The rule in this state is that evi-
dence otherwise inadmissible may be admit-
ted as preliminary to a relevant inquiry.
Merchants’ & Planters’ National Bank y.
Clifton Manufacturing Co., 56 S. C. 320, 33
S. E. 750; State v. Petit, supra.

[20] The testimony of Sutton as to the in-
quiries of the officers about the stick pin,
and what they said upon finding it, and the
testimony of Messrs. Glaze and Corley, as
to what Sutton said in describing the stick
pin in the room of the defendant, may be
referred to at one and the same time. It
must be remembered that Sutton testified
that this pin had been taken from him by
the robber and rapist. The pin, Sutton claim-
ed had been stolen at the time of these
erimes, was claimed by the prosecution to
have been found in, or on, the dresser in
the defendant’s room. The defendant claim-
ed ownership of the pin, and denied that Sut-
ton had ever owned it. The main fact was
as to the ownership of the pin. Had it be-
longed to Sutton, or did it belong to the de-
fendant? Sutton was fully examined and
cross-examined as to the pin, and told where
he had purchased it. The defendant, in his
examination, only knew that he had bought
the pin, but could not tell the place where
it had been purchased by him. Sutton, in
reporting the crime to the officers, described
the pin which he claimed had been stolen.
When the pin was found, he identified it as
being his pin. All that the officers said, all
that Sutton said, and all that the defendant
said regarding this pin was only incidental
and preliminary to the real issue—was the
pin stolen from Sutton on the night of the
crime? The examination and cross-examina-
tion of Sutton as to what he had said and
done regarding the pin tended to either con-
firm or deny his positive testimony that the
pin found in the defendant’s room was his
property. There was direct evidence as to
the matters of the ownership and identity of
the pin, and the declarations as to the de-
scription of the pin, and its finding were only
incidental to the direct evidence. The evi-
dence, even if objectionable, cannot, there-
fore, be made the basis of reversal of the
judgment.

“Where there is direct evidence as to the
same matters as to which a party’s declara-
tion has been admitted in evidence against
the objection that it was self-serving, the

177 SOUTH EASTERN REPORTER

admission of the declaration, even if tech-
nically improper, cannot be regarded as prej-
udicial error.” 22 €. J. 230.

“Testimony that a witness received certain
information, which had previously been tes-
tified to by the party giving the information,
and upon which the witness acted, is admis-
sible, not as independent evidence to estab-
lish the truth of such information, but as an
inducement and an explanation by the wit-
ness that, acting on such information, he dis-
covered other facts connecting the accused
with the crime with which he was charged.”
Coleman v. State, 127 Ga. 282, 56 S. E. 417
(Syllabus).

Sutton did not testify, as the dissenting
opinion suggests, anything that “the officers
said about hoping to catch the defendant.”
At folio 85 of the record, it does appear that
when he reported the robbery to Officers Cor-
ley and Spires, these gentlemen told him
that, perhaps, the man who had committed
the crime might “cross the bridge” (the
bridge over the Congaree river between the
city of Columbia and New Brookland). No
reference whatever in that conversation was
made to the defendant as being the man who
was sought, and his name was not men-
tioned in that connection in Sutton’s testi-
mony.

[21] The objections, under thé letterings
“fp? “po “h”, and “i”, as to testimony of
Sutton, have reference to matters brought
out on his cross-examination, for the evident
purpose of discrediting the story he had told,
particularly as to his movements on the night
of the alleged crime, his location of the place
where the crime was said by him to have
been committed, and his relationship with
the prosecutrix. Certainly, these efforts to
eause the jury to disbelieve Sutton’s testi-
mony cannot be advanced now as a cause for
reversal of the unfavorable judgment.

(22] The conversation of the prosecutrix
with her mother, as related in the testimony
of the mother, after the return to her home
of her daughter, was to the effect that the
daughter had imparted the information that
Sutton had been robbed, and that she had
been raped. The Solicitor was very careful
in asking the questions necessary to bring
out this testimony from the witness. He
stated, in the first instance, that he wished
counsel for the defendant to be advised of
what testimony be sought to develop. He
stated, too, that he did not wish the witness
to go‘into the details of the information given
her by her daughter. The testimony was

STATE vy. FLOYD §.C. 391
177 8.E. :

clearly competent and relevant. See State
v. Sudduth, 52 8. C. 488, 30 SE. 408; State
vy. Dawson, 88 S. C. 225, 70 S. E. 721.

[23] The testimony of Mr. Glaze as to a
“conversation with Sutton and Hall about
what ‘a fellow’ had said” related to informa-
tion Sutton had obtained as to the defend-
ant having purchased an automobile on Mon-
day, following the alleged attack on Satur-
day night. After that information was re-
ceived on Monday, the defendant was arrested
that night, at the time being in possession of
the very automobile the information showed
he had purchased on that day. The defend-
ant, when arrested, admitted to the officers
he had purch :sed the car that morning, and,
in his testimony in the trial, he acknowledged
the purchase of the car. When this testi-
mony was being taken, the Solicitor warned
the witness, Mr. Glaze, that he did not wish
him to go into any conversations, but only
wanted to obtain the fact that he had receiv-
ed information as to the purchase of the
automobile, and who had given him the in-
formation, and what he did in pursuance of
the information obtained. Since the defend-
ant admitted the truth of all the information
that Officer Glaze and Sutton had received,
we are unable to see how the testimony, even
if objectionable, could have prejudiced his
defense.

[24] The testimony of A. O. Sutton, refer-
red.to in the dissenting opinion, was admis-
sibi. without any doubt. This witness had
testified on direct examination that at the
county jail, in the presence of Mr. Smith, Mr.
J. D. Sutton, and the defendant, the defend-
ant had stated positively that he did not
know J. D. Sutton. On cross-examination,
the testimony said to be objectionable was
brought out. It was to the effect that Mr.
J. D. Sutton, at the suggestion of Mr. Smith,
identified the defendant, in a e-owd of eight
prisoners, as being the man who had commit-
ted the crimes. Mr. Smith made no state
ment at the time. He only asked Sutton, in
the defendant’s presence, if Sutton could
“pick your man out.”

[25] We may add that the circuit judge in
the trial of the case had to be unusually
careful as to striking out “hearsay evidence,”
or instructing the jury not to consider such
evidence. If such testimony was adduced
without objection, and it later developed
that some part of it may have been beneficial
to the defendant’s cause, then, on proper ex-
ception to this court, it would have been the
duty of this court to reverse the judgment.

That point was expressly decided in the case
of State v. Wardlaw, 170 S. C. 116, 169 S. E.
840, referred to in the dissenting opinion of
Mr. Justice Cothran, where this court granted
a new trial to a defendant sentenced . to
death, because Judge Grimball, who also
presided at the trial in this case, charged
the jury not to consider certain evidence he
regarded incompetent, which had been admit-
ted without objection. The reason of the
decision was that incompetent evidence, ad-
mitted without objection, under our law, be-
comes competent, and may be properly con-
sidered by the jury.

We cannot help but feel that the criticism
directed in the dissenting opinions at the
judgment of the court below is due very much
to the abhorrence of the dissenting Justices
of the conduct of Sutton particularly, and,
in some manner, of the conduct of the prose-
cutrix. Perhaps, it is true that these wit-
nesses sought to shield themselyes, and to ex-
cuse their long absence from the home of the
mother, by bringing the charge that the girl
had been ravished, as it is suggested in the
dissenting opinions. There must be grave
doubt, however, as to the correctness of that
intimation. One will naturally ask some
questions. Would not it have been much
easier to have trumped up some other excuse
for the absence? If the witnesses were guilty
of immoral conduct, as it is intimated, would
not the bringing of the charge of rape against
the defendant, and the trial in a court of jus-
tice, expose them not only to the criticism of
the mother, but to the embarrassment of be-
ing made ashamed in the eyes of the whole
world? Would Sutton, under the circum-
stances, have laid this false charge against
the accused, when he knew that his doing so,
in all likelihood, would bring to his Wife the
knowledge of his conduct? If, as the accused
testified, Sutton was involved with him in
the thefts of numerous automobiles, would
Sutton have run the risk of the exposure of
those thefts by bringing against the defend-
aut a charge so serious? All these matters
and questions were properly for the consid-
eration of the jury, not for this court. We
shall not try to defend the conduct of the
witnesses. It is not necessary here. However
bad they may have been, their wickedness
eannot justify the commission of the crime
charged to the defendant, if he was guilty.
The cowardice of Sutton cannot be used, legal-
ly or morally, as a shield in defense of a
ravisher,

As already said, this court is one for the
correction of errors of law only. Some of the
language of Mr. Justice Marion, in Chisolm

az:

")

TE nap oat


394 8.C.

177 SOUTH EASTERN REPORTER

HARRISON v. CAROLINA MUT. BEN. CORPORATION s.C. 395
177 S.E,

The folio numbers set forth below are giv-

I need not be reminded that this opinion

I am forced to dissent from the judgment of mand of ‘the defendant; their failure to : ; , sent An ite .
this court affirming the judgment of the cir- make any outcry or show of resistance; their en for the benefit of those sufficiently inter- may be considered somewhat aaa ti a i . :
cuit court under which the defendant-appel- remaining passive and obedient to his orders ested in this appeal to refer to the transcript, holding, but, being so thoroughly convinee¢ £
lant was sentenced to death. My whole na- when he left them standing in order to go The testimony below set forth related to that a grave injustice has been =e the de- 5
ture rebels against this judgment to such an some distance and search the car; the atti- conversations had in the absence of the de- fendant, ‘I seek that: tayyn ot nee ee &
extent that I have made a most careful search tude of Sutton as an interested spectator, fendant, and this fact should be borne in bene see ee pics : mlgesanig mt = ae ‘
of the record in an effort to find errors which idly looking on during the rape of his girl mind as proof of its incompetency. erations from ped English ay ne one i
might warrant a new trial. companion; the failure to report the alleged The following is taken from the testimony ae eee fot this Giapet:. Ih Tay :

The defendant was represented by counsel Tape to the officers of the law until after the of Sutton: empihes at :
appointed by the court and, on the third day arrest of the defendant upon a charge of rob- a. Narrating conversation with one Dick- $
after his arraignment, was brought to trial, bery, thereby considering the alleged loss of son prior to the alleged attack. F, 16. BONHAM, J., and C, J. RAMAGE, Circuit Be
This was in accordance with the strict prac- $100 of more consequence than the outrage b. Stating what a boy told him. F. 59. Judge, concur. q
tice of the law and no legal objection can be committed upon the girl; the failure to have - =
made to this procedure, although it goes with- any doctor or nurse from the hospital give by ‘ me ting what the officers asked —* 4
out saying that it was impossible for the ap- testimony at the trial; the allegation that stick pin. F. 70. ; 3
pointed attorneys to properly study and pre- Sutton stopped his car on a side road away d. Stating what the officers said upon find- x
pare the defense of the defendant in so short from the highway in order to light a cigarette ing the stick pin, F. 78. 2
a time. I wish it fully understood that no —all of these facts and many others, taken e. Stating what the officers said about hop- 4
aspersions are cast upon the attorneys ap- in connection with many contradictions in ing to catch the defendant. F. 85. #

pointed by the court to represent this negro,
‘although it is well known that such work is
very distasteful to attorneys generally and in
_many cases their work is largely perfunctory.
If a reasonable fee could be provided for such
work, more interest would be taken init. One
notable exception to this general apathy on
the part of attorneys appointed by the court
was found in the conduct of Honorable Wil-
liam P. Greene of Abbeville in his efforts to
save the life of the defendant in the case of
State v. Wardlaw, 170 S. C. 116, 169 S. E. 840,
very recently decided by this court. Twice
did he exert his every effort in the circuit
court, and once ‘in the Supreme Court, on be-
half of his client, and his brilliant defense of
a penniless negro, although unavailing, is

the testimony of the two principal witnesses,
have placed such a strain upon my eredulity

that the breaking point was nearly reached.

The “last straw,” the one which broke it com-
pletely, was the testimony of Sheriff Oswald
that Sutton told him that his hands were tied
behind his back and that he was thereby fas-
tened to a stob driven in the ground during
the alleged attack, all of which was absolute-
ly denied by both principal witnesses.

Interested parties may by this time begin
to wonder upon what my dissent is based,
and the real reason for this dissent will now
be stated. ,

In the ease of State v. Griffin, 129 S. C.
200, 124 S. B. 81, 35 A. L. R. 1227, the de-

f. Stating conversation with some one at
his employer's store. F. 112.

' g. Stating what favors the family of the
girl would ask of him. F. 146.

h. Stating conversation with the solicitor.
F. 182.

i. Stating conversation with the girl. F.
247,

j. Stating conversation with “Mac” and
what “Mac” said. F. 276.

Testimony of A. W. Dickson: Stating con-
versation with Sutton prior to difficulty. F.
290.

Testimony of mother of the girl: -Conver-
sation with daughter after she returned home

HARRISON v. CAROLINA MUT. BEN.
CORPORATION OF SOUTH
CAROLINA.

No. 13954.

Supreme Court of South Carolina.
Dec. 3, 1934.

1. Insurance €=618

In action against mutual benefit compa-
ny for refusal to issue policy pursuant to
agreement, statute permitting suit in county
wherein loss occurs held inapplicable; venue
being determined by law applicable to other
domestic corporations (Code 1932, §§ 423,

: fendant was convicted of attempting to ad- after attack, the solicitor himself intimating -)-

worthy ofa permanent record in the law re- minister poison. During the trial there was that chid testimony was incompetent. Ff. 7997).

ports. of this state. not one objection raised to the admission of 307, 308. 2. Insurance €=618 =
. The attorneys appointed by the court to de- the evidence although incompetent evidence Testimony of A. M. Glaze: Failure of plaintiff, suing mutual benefit - me
fend the appellant herein do not represent was offered. The court reversed the judg- J eee : company for refusal to deliver policy, to serve *
him in this appeal; a lawyer of his own race ment in that case citing the following from Conversation with Sutton and Hall about Qompany’s agent, if any, in county of forum, e
appears in his behalf. His exceptions are State v. McNinch, 12 Ss. C. 89: “This court is what “a fellow” had said. F. 319. entitled company to have case transferred to z
meager and bring up mainly the question of bound, in a capital case (and we think equal- Stating what Sutton said in searching room county wherein service was made on officer of 3
the utter unreasonableness of the story of the ly so in a case of felony involving the depri- of defendant. Ff. 335, 336. company at its home office (Code 1982, §§ 423, Es
two main witnesses for the state. The appel- vation of the defendant’s liberty), to take no- Yestimony of Tom Corley: Stating how 7997). re

lant is asking this court to pass upon the evi-
dence and to say that because of its contra-
dictions, its unreasonableness, its utter im-
probability, it must be disregarded as un-
worthy of belief. He must realize that such
is not the province of this court. I may, how-
ever, gratuitously add that if I had been the
presiding judge or even a member of the jury
the appellant would not now be under sen-
tence of death as the result of that trial.

I cannot see that any benefit would result
from the expression of my views involving
the conduct of the two principal witnesses for
the state on the occasion of the alleged at-

tice, in behalf of the accused, of any error
apparent upon the record by which the pris-
oner has been deprived of any of the substan-
tial means of enjoying a fair and impartial
trial.”

Based upon that most humane doctrine, I
will now set forth such incompetent testimony
as I find in the record. Some-of this testi-
mony, while incompetent, could hardly be
said to be prejudicial; some of it was sworn
to by other witnesses whose testimony was
competent; some of it was cumulative and,
hence, not sufficient for a reversal, but, taken
‘as a whole, there was enough, in my opinion,

Sutton described bis stick pin. - F. 371.

Testimony of the Girl: Stating what Sut-
ton told her when they first left her home.
EF. 379.

Testimony of A. O. Sutton: Stating what
Mr. Smith said at the jail to Sutton about

the identity of the defendant. F. 727.

All of the testimony set forth above is, in
my opinion, incompetent and, taken as a
whole, tended to have a most prejudicial ef-
fect upon the defendant in the minds of the

jury.

Appeal from Common Pleas Circuit Court
of Sumter County; Philip H, Stoll, Judge.

Action by Leila Harrison against the Caro-
lina Mutual Benefit Corporation of South
Carolina. From a judgment sustaining a
judgment of the magistrate’s court in favor
of plaintiff, defendant appeals.

Reversed and remanded, with instructions.

Norbert A. Theodore, of Columbia, for ap-
pellant.

M. M. Weinberg, of Sumter, for respondent.

€=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

tack. Their perfect obedience to every com- to be not only material but prejudicial.


392 ~=—s«S. C. 177 SOUTH EASTERN REPORTER

yv. Railway Co., 121 S. ©. 394, 114.8. B. 500,
504, seems singularly applicable: “The is-
sues were for the jury. If, as is sometimes
intimated, unjust or mistaken verdicts are
oceasionally rendered by juries, * * *
the remedy does not lie in usurpation by an
appellate court of the prerogatives of the
jury, to whose unanimous judgment our law
rightly commits the ultimate solution of these
oftentimes difficult questions of mixed law
and fact.”

We must not overlook the fact that the
members of this court are not given the op-
portunity of seeing the witnesses, hearing
their words, and observing their demeanor.
These things count much, as they should, in
the determination of the credibility of the
witnesses, and if their testimony be true or
false. The jurors and presiding judge had
those opportunities. At this distance we do
not feel that we should criticize the verdict
the jury rendered, or the action of the pre-
siding judge in failing to disturb that verdict,
for they, as well as the members of this
court, have solemnly sworn to perform their
respective duties, and we cannot say, in the
face of the record, that they have failed in
that regard.

It is suggested that if other witnesses, espe-
cially the interne at the hospital, had been
produced in the trial court, perhaps the ver-
dict of the jury may not have been that which
was rendered. This court; in this appeal, can-
not properly entertain that suggestion as a
ground for the reversal of the judgment. The
rules of the court and many decisions, not
necessary to be cited, point out the proper
manner in which new trials may be granted
for after discovered evidence. The defend-
ant was convicted one year ago. His appeal
has been pending in this court for several
months. No application for a new trial, on
the ground of after discovered evidence, has
been presented. Certainly, if such evidence
existed, the counsel for the defendant here,
always diligent and persistent in the defense
of his clients, who is so well acquainted with
the rules of the court, and the decisions as to
such matters, would have presented the prop-
er application.

Even if it appeared to our entire satisfac-
tion that the glaring falsehoods in the testi-
mony of the defendant were due to his des-
perate situation, and those falsehoods brought
about his conviction, this court has not the
power to reverse the judgment against the
defendant because of those falsehoods. That
he should be excused and forgiven for those
talsehoods is not in this court, one limited to

the correction of errors of law only in cases
of this character, a legal ground for the re-
versal of the judgment. The Supreme Judge
of the universe vested the power of forgive-
ness in the greatest of all Jurors, and, in the
exercise of that power, that Great Juror for-
gave Peter for his false denials, after that
beloved disciple had wept bitterly. The peo-
ple of this state, who have given this court all
the authority it possesses, have not intrusted
to it the power of forgiveness, or the privi-
lege of granting mercy. Mercy to the defend-
ant, under the law, rested, first, with a jury
of his country; that jury did not think him
entitled to it. The granting of mercy did not
even rest with the trial judge. At this stage,
the power to extend mercy rests alone with
his excellency, the Governor of this state,
who, by our Constitution, is directed to “take
eare that the laws be faithfully executed in
mercy.” Article 4, § 12.

It appears to us that our duty, while a
solemn one, is clear; it is that the judgment
of the court of general sessions of Lexington
county be, and the same is hereby, affirmed.

STABLER and CARTER, JJ., and T. 8.
SEASE, H. F. RICE, C. C. FEATHERSTONE,
J: HENRY JOHNSON, M. M. MANN, G. B.
GREENE, E. C. DENNIS, S. W. G. SHIPP,
A. L. GASTON, and G@ DEWEY OXNER,
Circuit Judges, concur.

BONHAM, J., W. C. COTHRAN, A. A. J.,
and C. J. RAMAGE and PHILIP H, STOLL,
Yircuit Judges, dissent.

BONHAM, Justice (dissenting).

I dissent from the main opinion in this case
and concur in the dissenting opinion of Mr.
Acting Associate Justice COTHRAN, for the
reason that I think it is patent on the face
of the reported evidence that the unfortunate
defendant is the victim of circumstances in
which the two principal witnesses for the
prosecution find it necessary, in order to free
themselves from the consequences of the sit-
uation in which they were discovered, to sac-
rifice the defendant, by the charge that they
were the victims of a robber and rapist. I
am not willing to believe that any white man,
however weak and cowardly he may be, would
have acted as the male prosecuting witness
in this case swore he did. It is impossible
to believe that he could stand by and see the
woman who was in his care subjected to the
foul embraces of a negro, and moved from
place to place for the accomplishment of his
purpose, without making an effort to defend
her though he died in the attempt.

STATE v.
ng

Sheriff Oswald testified that Sutton told
him that’ the negro tied him. Sutton denied
this. Sheriff Oswald could have no motive
of hostility toward Sutton, or partisanship for
the negro, in making this statement; Sutton
had an incentive for denying it.

Sutton arid the young woman say the negro
kept them at the place of the attack for more
than two hours, and moved them about. Did
no chance for resistance present itself during
all that time, especially while the rape was
being committed? Evidently Sutton was sin-
cere when he said his life was the sweetest
thing.

One is compelled, it seems to me, to the con-
clusion that he is attempting by this horrible
story to shield himself from shame and dis-
grace, and the consequences of some unlawful
or immoral act of his own.

One cannot escape the conviction that the
utterly false and wild story told by the de-
fendant contributed much to his conviction,
and his present unfortunate situation. He
lied, patently and foolishly. His life was in
danger; he is an ignorant negro; but I sub-
mit that his rambling, silly story is no more
improbable, nor any harder to believe, than
is the blasting, searing tale told by the prose-
cuting witnesses in this case. :

The defendant lied. On the night of his
betrayal the Savior said to Peter, before the
cock crows you will deny me three times.
And before the cock crew Peter had, with
vehemence and oaths, denied his Lord thrice.
And ye.” he became one of the greatest of the
disciples, and the Savior said of him: “On
this rock I found my church.” In His infinite
wisdom He knew that in the weakness of hu-
man nature one in the stress of imminent dan-
ger will lie. :

The rule of the law, in favorem vitae, is
founded in that mercy which is the boast of
the law in the manner of its enforcement. It
is made to meet just such an emergency as
this. Mr. Acting Justice COTHRAN has
shown that it is reeognized and has been fol-
lowed by the courts of this state aforetimes
to avert a miscarriage of justice; and he has
shown that there is here so grave a doubt of
the guilt of the accused as to make it an er-
ror of law that the jury did not follow the in-
struction of the court that the prisoner be
given the benefit of every reasonable doubt
and acquitted.

I submit that the evidence touching the ac-
tual commission of the crime is rendered un-
certain by the unreliability and improbability

of the story told by the two prosecuting wit-.

nesses, It was casy enough to have proved
177 S.E.—25%

FLOYD : 8.0. 393
8.E.

the fact that a rape had been committed if
the charge was true. The woman had been
taken, they say, to an hospital in Columbia, a
few miles away from the place of trial. The
doctor or other person who examined her
could have been called to testify to the fact
that a rape had been committed, if it was a
fact; it was not done. If it be said that the
defendant could have produced the evidence
to disprove the charge, if the evidence of the
person making the examination would so tes-
tify, the argument would be unsound. It is
the duty of the state to prove such charge and
to produce all the available evidence which
would prove it beyond a reasonable doubt.
The state has all the resources of the law,
and the services of learned and able counsel.
The defendant is an ignorant, illiterate, and
apparently penniless negro; too poor to em-
ploy counsel, and who was defended by coun-
sel appointed by the court. The failure to
produce this evidence, if it existed, raises the
presumption that it did not exist, and that
presumption raises a very reasonable doubt
of the guilt of the accused.

The main opinion dwells with eloquence up-
on the fact that a wave of crime is sweeping
the country. Conceded; that does not justify
forgetting the principle of law that it is bet-
ter that ninety-nine guilty men escape than
that one innocent man be convicted and put
to death. The death at the hands of the law
of an innocent man casts more reproach upon
the administration of the law than does the
failure to convict the guilty.

The law knows this; hence its old and wise
rule that the guilt of the accused must be
proved beyond a reasonable doubt before an
accused can be convicted. When the evidence
leaves. grave, or if you prefer reasonable,
doubt of the guilt of the accused, it is error
of law to convict.

My dissent in this case is based upon my
conscientious conclusion that the evidence
leaves grave doubt of the guilt of the accused,
and my apprehension that if this Judgment
be affirmed, the affirmance may serve here-
after as a precedent to endanger the lives or
liberties of others.

Surely this is a case in which the merciful
provision of the principle in favorem vitae
may be invoked. ‘

W. C. COTHRAN, A. A. J., and C. J. RAM-
AGB, Circuit Judge, concur.

W. ©. COTHRAN, Acting Associate Justice
(dissenting).

aR a ai NRG eON AMES, sah

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Chotankers

A FAMILY HISTORY

A. EDWARD FOOTE

THORNWOOD BOOK PUBLISHERS

FLORENCE, ALABAMA


XVI

XVII

XVIII
Appendix I
Appendix II

¥

Contents

PREFACE
THE FACTOR

i

1

A GENEROUS AND FRIENDLY NEIGHBORHOOD 17

THE PARTNERSHIP

VISITING LONDON

ON THE POTOMAC

THE “SOMEWHAT DISTINGUISHED” FRIEND
MOVE TO BRENT TOWN

DEATH AT MOUNT VERNON
NORTH OF THE HAW

PEACE

MOUNTAIN ISLAND MAN

ESCAPE TO NEW ORLEANS
ANOTHER MURDER AT EDGEFIELD
CROWDER

UPSETTING ONE AXE

999 VOTES

RETURN TO BRENT TOWN
RUNNING THE LOGS

HENRY S. FOOTE’S GENEALOGICAL RECORD

DESCENDANTS OF MATTHIAS GARRIGUS
NOTES TO FUTURE RESEARCHERS
INDEX

31

47

55

69

81

91
111
131
157
173
191
201
217
237
Phe 0,
267
281
285
288
291

132 CHOTANKERS

charged with hearing all cases of assault and battery. George did often inflict 39
lashes, the severest penalty he could give, for such frequently heard cases as
vagrancy and minor offences by slaves, over which he was given “full power
and authority.”’ George first examined and then committed to jail until trial in
the County Court, suspected felons, collecting testimony for their conviction.
Presumably, he did not concern himself with two illegal matters where the
Assembly had given him authority--‘'the destruction of gambling tables, and
the seizure of money staked or used in gaming.”’

As Justice of the Peace, George had great influence with the County Court,
composed of five Justices of the Peace chosen from the larger group of 13 in the
county. From their own ranks, George and the other 12 Justices appointed the
five to hold the County Court for a year. Drawing $1 to $3 a day, the work
included all administrative decisions for running the county as well as trying
civil and criminal cases. This meant he had influence over county
appointments and contract assignments, such as maintenance of roads and the
construction of public buildings.

The County Court had jurisdiction over retailing spirituous liquors with a
license. But ‘‘moonshiners”’ selling in gallon or larger quantities were not
required to be licensed. Early in the 19th Century, Bartlett Yancy estimated
that there were 50 distilleries in Caswell County. He noted, then, “some of
them are useful to the owner and the Country, but most of them are nuisances
to society, being the resort of idle, dissipated Men, who by their visits to such
places, bring on ruin to themselves and their families.’’347

Unfortunately, Gilson, just turned 16 clearly became interested in these
distilleries and how they operated, for later he would own one himself. Highly
likely, during this period of becoming a young adult he came under the
influence of some of the unsavory citizens which Yancy writes about; there is
no doubt that during his life he made many friends in with persons of
questionable ethics, a habit which could have started while he still lived at
home at his father’s Hostler Branch, Caswell County plantation.

If Gilson showed signs of being a problem son for his father with Margaret
now gone, surely George’s distress was largely ameliorated by the devotion of
the rest of his family. ,

John became the first to marry in 1782. Barely 18, he showed great
determination to start his own farm as soonas possible by purchasing 26 geese
at the estate sale of Richard Simpson in August. No doubt, his brothers
inquired on his return why he bought geese and not the man’s saddle
Sherwood Nance, a friend of the family, had purchased, or a hatchet and old

347 comment by Bartlett Yancy from his description of Caswell County, published
in A.R. Newsome, “Twelve North Carolina Counties in 1810-1811", The North
Carolina Historical Review, Volume V Number 4 (1928), p. 424.

PEACE 133

sword George Jackson got. Even the wool shears that went to Jesse Oldham
would have been better; surely John didn’t need 26 geese.>*8

Could his new bride understand better than his brothers, who clearly did
not think as married men of responsibility, the wisdom of his purchase? The
former Miss Loughridge and John, therefore started their marriage on a good
footing, plenty of feathers for a magnificent feather mattress and pillows for
the marriage bed.349 Two years later, John Foote, Jr. was born to the couple to
be followed by a second son, George Washington Foote, before New Year’s
Day, 1786.35°

As soon as John Sr. turned 21 in 1785, the County Court, in recognition of
his father’s influence, named him a Patroler for St. David’s district--not only
an honor, but a significant responsibility usually going to sons of more
substantial means. Other appointments to Patroler during the July term of
Court included those of Hezekiah Rice, Jr. and Sherwood Nance, both
relatives of future Foote brides.>5!

Meanwhile his father, at 48, had remarried in 1782, selecting Nancy
Williams. The daughter of William Williams, she lived only a few miles from
the Foote home across the county line in that part of Guilford County to
become Rockingham in 1785. A honeymoon trip was out of the question.

¥48Will Book B, Caswell County, North Carolina, p. 152, and Richard Simpson
Estate Papers, Box #82, Department of Archives and History, Raleigh, North Carolina.
George Foote entered into a bond in conjunction with the sale with Waddy Tate, Jesse
Williamson and others. Richard Simpson was the husband of Mary Kincheloe, the
sister of John’s mother. They had moved to Caswell County before 1764 and Richard
later represented the County in the North Carolina Assembly.

49There is no known documentation as to the name of John Foote, Sr.’s first wife.
That she was a Loughridge (frequently spelled Lockridge) is a matter of family tradition
among his descendants who settled in Franklin County, Alabama about 1871. In July,
1974, this author examined a letter written in the late 1920s to William A. Foote of
Chester County, South Carolina, at that time still in his possession, from Mrs. W.C.
Petree of Birmingham, Alabama. The former Elizabeth Foote, Mrs. Petree gave John’s
full name as John Andrew Foote, and said that he served in the Revolution under
General Greene. According to the 1790 U.S. Census, Loughridge is a very unusual
name, and the fact that several of the very few Loughridges in the U.S. show up in 1791
in York and Fairfield Counties, South Carolina, where John Foote later lived adds
believability to the tradition. For land grants to the Loughridges see Grant Book E, pages
156 and 166, in the South Carolina State Archives in Columbia. In 1979, Mrs. Petree’s
descendants were living in Muscle Shoals and Russellville, Alabama.

350Year of birth of John, Jr. is from a letter from Rupert B. Watson, Atmore,
Alabama, August 17, 1973. George Washington Foote’s birth year is established by the
Federal Census of 1860, Cobb County, Georgia. He lived in household #770 with the
Thomas Manning family at Lost Mountain.

351Kendall, p. 12.


Copyright 1981, 1982 by A. Edward Foote To all those who came before; they

ALL RIGHTS RESERVED make this book possible. To all
those who will follow; the possibility
is all theirs.

eorge Washington: A Biography,

|

|

oy Douglas Southall Freeman, p. iv,
ork, 1948. Used by permission.

— 0-943054-13-3

ce is Goudy, <

Aega Research, Inc. ae
Jall, Peggy Holloway, and Susan Petty, typesetters.

CHOTANKERS

See
peaeeeseeen)
N89°E.neart

Western and Central Chester County, S.C. in 1825.

CHAPTER TEN

George Foote, III, came home to Hostler Branch to find his mother,
Margaret had died during his absence in South Carolina with Greene’s Army,
and she had already been buried in the family burial plot.*” His brothers and
sisters, struggling to mask their own sorrow tried to help their father through
each day. Fortunately, he had responsibilities on the plantation and in the
community to keep him busy.

Four and a half years had passed since George Foote, Il took his oath “in the
first year of Independence” as Justice of the Peace for the then new Caswell
County.346 His appointment by the Governor had been for as longas he stayed
in the county, and he would not move for another six years. For most of the
sessions during these first six years, his courtroom had been his home, except
for the few times he had held court at the store at Locust Hill or at one of the
mills in the neighborhood, such as John Riley’s on Country Line Creek. His
only remuneration had been his exclusion from the requirement that all
citizens spend time working on the public roads, a form of ‘‘sweat”’ taxation.
While the disagreements between Tory and loyalists neighbors created several
cases a year, during the Revolution most of these went to the County Court,

345No known evidence exists on the exact date of her death or on the place of burial.
The author has preferred to give the reader continuity here with a reasonable “guess” at
what happened to the Footes during this very difficult period in American history.

“Katharine Kerr Kendall, Caswell County, North Carolina (Raleigh: Privately
published by the author, 1977), p. ¥.

toe


136 CHOTANKERS

growing land for his father, George, II could have offered to help underwrite
some of the expenses of the jouney.

By January, 1787, Gilson had arrived in Union County, S.C. On that date,
he witnessed a bill of sale of two young adult slaves named Doll and Will to
William Farr by Thomas Poytress, who had recently moved into the county
from Georgia. Joining Gilson in witnessing the deed were two young men,
William Beckham and Richard Farr, who became his enduring associates.
Later they were connected to his father and his brothers. For the sale, Poytress
received 1008 sterling.

Gilson’s travels could have taken him over the next few months not only
around Union County, but into Chester, Lancaster and Fairfield Counties,
South Carolina, where he, his father, and all of his brothers and sisters, except
George, III, would eventually settle. Before returning home, he undoubtedly
would have traveled across Newberry County to visit his Aunt Frances Moore
on the Saluda River. She had first settled with her husband, Francis Moore, on
the Little River after arriving in Laurens County, South Carolina, in 1768.
Within two years of their arrival, her first husband died, leaving Frances with
daughter Behethland and sons, William, George, and Thomas. Frances Foote
Moore waited two years before she remarried to Moses Yarborough, himself a
widower with three children. Before June, 1773, he too had died instructing in
his will that “my estate...be equally divided betwixt my said wife and Jilson my
youngest son born of her body and Elizabeth Yarborough, Ann Yarborough
and William Yarborough, three children I had by another wife...” On his
death, she married Samuel Savage and moved to Edgefield, South Carolina in

359Record Book 1 and 2, Clerk of Court, Union County, South Carolina, p. 16. The bill
of sale is dated January 19, 1787. Gilson Foote was still at home when the North
Carolina State Census of 1786 was taken. George Foote, II, had in his household one
male 21 to 60; 5 males under 21; and three females. George Foote, III, and Newton Foote
are listed separately with their own households. John Foote with his bride of four years
was clearly living somewhere else because the three females in the Foote home were
Nancy Williams Foote and George’s daughters, Elizabeth and Mary. The five males
under 21 were probably Gilson, William, James, Henry, and Richard. Possibly, Gilson,
born 1765, had not yet had his 21st birthday. See Alvaretta K. Register, State Census of
North Carolina, 1784-1787 (Baltimore: Genealogical Publishing Co., Inc., 1973), p. 24.1
examined the original Census manuscript at the Department of Archives and History,
Raleigh, North Carolina in 1974 to confirm the Foote listings.

3©Will Book B, Charleston, South Carolina, p. 357. The spelling of Gilson with a "'J” is
frequently encountered and resulted from the family pronunciation of the name which
always maintained the “J” sound. Both “Gilson” and “‘Jilson” spellings have been found
in Chester County, Lancaster County, and Edgefield County, all in South Carolina, and
in Tishomingo County, Mississippi. Living in Saluda, S.C. in 1977, Motte Yarborough,
a descendant of two Gilson Yarboroughs, reported the “Jilson” pronunciation as
traditional. This is also true among the descendants of Gilson Foote who settled in
Tishomingo County, Mississippi. The Gilson Family History, available in the State
Library of Ohio, Columbus, gives both spellings for the surname. Not familiar with the
name, researchers have frequently transcribed it as “Gibson”, and in at least one source
it appears as “Gibbon”.

4

PEACE 137

1774.36! She lived on the Saluda River, not far below Saluda Old Town, when
Gilson Foote visited her in 1787. Gilson would have found that Behethland--
whom he had not seen in 20 years and even at that he surely could not
remember since he was only three at the time--had married William Butler in
June, 1784, and already had two children. Having missed service in the
Revolution because of his youth, Gilson learned cousin Behethland had risked
her life to warn the Americans of approaching British forces and became a
heroine.

As Frances would have explained as she entertained her nephew: Behethland
had been sent to an academy in Camden for schooling when the British forces
and Americans moved into the area. Townspeople noticed that 17 year old
Behethland and some of her young women companions took a special interest
in standing in the street to admire the passing soldiers.**? Of course, they were
noticed in return. Rebuked and reported to her mother, Behethland left
Camden after Frances sent word for her daughter to return home in April,
1781. But because smallpox was rampant in the area, again Frances sent
Behethland away; this time to Ninety Six, South Carolina, about 20 miles
distant for innoculation by a British physician stationed there with the British
forces, defending the Ninety Six Fort. But, General Greene and the Southern
Army attacked, catching Behethland with the wife of the defending British
commander in a house within cannon range of the seige.

Gilson’s brother, George, III, marching with the American force, may have
learned his cousin faced grave danger trapped as she was in the center of battle.
If so, he pleaded with his commanders in her behalf for during a lull in the
fighting she was allowed to return home, only to be insulted and threatened on
several occasions when British and Tory forces sought food and supplies from
her stepfather’s plantation. During a later visit by enemy troops looking for
horses, she and a younger brother quietly made their way to the banks of the
Saluda after they settled down for the night. Taking a canoe the two paddled to
the cavalry of Colonel ‘Lighthouse Harry’ Lee on the opposite side of the
river warning that British troops were within striking distance. Without her
alarm certain capture or destruction of the outnumbered American forces
would have resulted.3°

361Eytive Long Evans, A Documented History of the Long Family (Decatur, Georgia:
Privately published by the author, 1956), p. 254. This book contains considerable
information on the Foote and Yarborough families.

32Elizabeth Ellet says that Behethland was 15 years old when she delivered the
warning to the troops of Colonel Henry Lee. But if the sequence of events are the same
as presented in her narrative and because Lee’s mounted troops did not arrive in South
Carolina until December 19, 1780, Behethland must have been 17 since the described
events could not have happened until the last half of 1781. See ‘'Behetheland Foote
Butler” in Elizabeth F. Ellet, The Women of the American Revolution, Volume II (New
York: Baker and Scribner, 1849), pp. 95-105.

3 ]bid.


134 CHOTANKERS

George did not own a carriage. With all traveling by horseback, the ladies in the
family, including a new bride, rarely ventured beyond the neighborhood.3**

After a year of marriage Henry, the couple’s first son, arrived.353 He was just a
year older than his nephew, John Jr.

Soon after Henry’s birth, news arrived from Virginia that William, George,
Il’s, half brother, had married in August into the prestigious Alexander
family 354 The new bride was Sarah, the daughter of Colonel William Alexander
of Effingham? and his wife, Sigismunda Mary Massey. Sarah was the maternal
granddaughter of Mary Stuart, the sister of Reverend William Stuart, who had
married Sarah Foote of Cedar Grove. Her paternal great, great grandfather,
John Alexander, had originally acquired 6,000 acres on Great Hunting Creek,
the site of Alexandria. The first son of William and Sarah, born in June, 1784,
was named George, probably after George Foote, I. During the mid 1780s,

William Foote, still living on the land he inherited from his father in Fauquier
County, became the only living taxpayer with the surname of Foote in the whole
state of Virginia. The Richard Foote, III, estate and the estate of George Foote,
husband of Celia Helm and the son of Richard Foote, II, were tied up by the

executers.?°°

352His will dated June 2, 1784 names his children as ‘John, Margaret Appleton,
Nancy Foote, Elendor Appleton, Susanner Harden, Geanne Williams, Frances
Williams, James and William Taylor.” Old Wills Discovered in Office Dated Prior to
1804, Rockingham County, North Carolina, p. 183.

353Henry Foote’s year of birth is established by the 1850 Census for St. Mary’s
Parish, Louisiana, where Henry settled before 1830. The Census record gives his age as
67 and shows that he was born in North Carolina.

354The date of their marriage was August 6, 1783. The children of William Foote and
Sarah Alexander were George, b. June 1, 1784, who married Anne I. Brown; John, b.
March 12, 1787 and died in 1813; William A., b. August 24, 1789, who married Jane
Elliott Washington; Gilson, b. May 3, 1791, who married Lucinda Lewis; Phillip A., b.
April 14, 1793, who married Matilda Brown; Mary Stuart, b. December 18, 1794, who
married John W. Massie; Sigismunda, b. December 30, 1796, who married John
Ashton and on his death married Dr. Charles Stuart; Richard, b. November 30, 1798,
who married Frances Grayson; Alexander, b. August 18, 1800, who married Julia Ann
Daniels; Frederick, b. August 15, 1802, who married Edith [surname unknown]; and
Edwin, b. May 9, 1805, who married Eleanor Lee Alexander. For a rather complete
listing of their descendants, see Abram W. Foote, Foote History and Genealogy Volume
Il, (Burlington, Vermont: Free Press Printing Company, 1932, p. 1149+.

355A picture of Effingham appears in Eleanor Lee Templeman and Nan Netherton,
Northem Virginia Heritage (Arlington, Virginia: Privately published by Eleanor Lee
Templeman, 1966), p. 186. William Foote purchased Effingham in 1829 but deeded it
to Allen Howison in 1833. Waverly, the home of Frederick Foote, William’s son,
appears on page 185 of the same book.

356A ugusta B. Fothergill and John M. Naugle, Virginia Taxpayers, 1782-87. Originally
published in Richmond, 1940, (Baltimore: Genealogical Publishing Co., 1971), p. 44.

PEACE 135

George Foote, II’s own holdings in North Carolina had not been seriously
depleted by the War. At the time of his second marriage, he owned acreage
valued at 1142 pounds, the same as he had claimed at the beginning of the
Revolution six years earlier. While the acreage would bea lot by 20th Century
standards, over 90 landowners in Caswell held estates valued at 1,000 or more
in pounds in 1777. This hardly made the Foote plantation size unusual.
Comparing it to Colonel John Lewis’s 13,000 pound estate, or Robert
Dickin’s, valued at 10,000 pounds, it really didn’t seem all that great. To run
the plantation, George depended on older slaves, long held by the Footes. He
had three black servants over 50, three between 40 and 50, and five others
under 40.357 They were responsible for working the five horses and caring for
the 24 cattle he owned.

George, III, did not need to venture beyond the neighborhood to find his
wife-to-be. April 15, 1784, he married Lucretia Nance, whom he had known
since childhood. In 1843, at the age of 86, her memory of the ceremony
seemed clouded when she stated to a court official “she was married...the 15th
day of April 1784;...knows of no record either public or private of said
marriage; but is of the impression that such marriage was solemnized by
authority derived from a Magistrate.’’5§

George, Ill, would have had his fill of traveling. He had seen most of South
Carolina and much of his home state on his marches with Greene’s Army.
Could he have found the rest of the family very interested in hearing about
what he had seen? Seemingly, with a new wife and young baby, his father had
decided that it might be time to conquer other unknowns. He dreamed of
repeating the excitement of a move to new land, a part of the beginning of his
first family and the arrival of his sons nearly twenty years earlier.

And among his brothers, Gilson quite possibly seemed to be the one most
envious of his brother and his opportuntiy to fight in the ‘‘Great War’’,
traveling as he had into distant areas of the Carolinas. Most likely, this was one
thing Gilson and his father saw eye to eye on. They both wanted to know more
about South Carolina. But, his new family tied George, II, down; by 1786,
Nancy had given George another son, his eighth. A growing second family, the
latest member the new baby, Richard, and the other responsibilities at the
plantation and in the county kept George from heading out on a speculative
trip. But Gilson could go. Not just to bring information back to his father--for
his own enlightenment and pleasure, possibly he might even rewarding
business opportunities. If Gilson did agree to look for promising tobacco

357See various Tax Lists and Tax Records for Caswell County, North Carolina, 1777
to 1789, Department of Archives and History, Raleigh, N.C.

358From a statement of military service for George Foote, III, signed June 16, 1843 by
Lucretia Foote. Available in the Revolutionary War Service Series of Pension Application
Records, The National Archives, Washington, D.C.


140 CHOTANKERS

crossing Buffalo and Coddie Creeks, they could have detoured a few miles via
Charlotte, returning to the main road to go south over the Catawba fork west
of the Waxhaws: from here, through the reservation and main town of the
Catawba Indians, turning southwest across Fishing Creek and Rocky Creek
and passing through Chesterville, finally leaving the main road to turn North
toward Sandy River before the road crossed the Broad at Fishdam Ford.36 By
the time they arrived, the Footes had traveled 160 miles from their old home in
Caswell County .3”

The land George Foote had chosen lay in Chester County; the rolling hills of
the future plantation site composed of gray, rich soil ranging from sandy to
gravelly, six inches down to the red clay subsoil. To the north in York County
and to the west in Chester County, there were prairies with few trees, now
mostly cleared of the maiden cane growth that the original settlers found. But
where the cane still stood in the bottoms of Sandy River or on the prairies in
isolated areas, the farmers still used it as a measure of soil fertility, just as they
had 40 years earlier, when the first frontiersmen were arriving. If only reaching
to the top of George’s head, he was told that meant ordinary richness, but a
growth of 20 or 30 feet indicated the highest fertility. It certainly must have
been a sight for the early pioneers to see a section of cane growth extending up
the slopes to the tops of the highest hills. Frequently, one could still see a lone
buffalo or deer in the highlands where the oak, hickory and chestnut grew far

369George Foote was called to jury duty in South Carolina for October Court, 1788.
Brent Holcomb and Elmer Parker, Chester County, South Carolina: Minutes of the County
Court, 1785-1799 (Easley, S.C.: Southern Historical Press, 1979), p. 145.

37There were other Footes in South Carolina not related to George Foote, II of
Chester County. In the spring of 1812 and 1813, Asa Foote arrived in Charleston.
Originally from Boston, he had left the city when he found himself in financial
difficulty in 1805 and by the summer of 1810 was in Barbadoes. In Charleston, he was a
horse dealer and owned a livery stable in the rear of St. Phillip’s Church. He died in the
spring of 1817, and his estate was administered by his son John. See ‘tAdm’r of Forbes
vs. Adm’r of Foote,” D.J. McCord, Reports... The Constitutional Court of South Carolina,
Volume III (Columbia: D. and J.M. Faust, State Printers, 1823), p. 331-34. A number
of entries appear in the Archives records concerning this Charleston family, which
included Peter D. Foote. For example, see Book 8, Marriage Settlements, State of South
Carolina Archives, p. 97 and Book NNNN, Miscellaneous Records, State of South
Carolina Archives, pp. 390 and 419.

One Daniel Foot had served in Captain John Stuart’s Company of the King’s forces at
Fort Prince George, South Carolina in August and September, 1756. See William L.
McDowell, Jr., editor, Colanial Records of South Carolina: Documents Relating to Indian
Affairs, 1754-1765 (Columbia: Department of Archives and History, 1970), p. 207.
Whether or not he is the same as the Daniel Foote of Fairfax County, Virginia
sentenced to death for a felony in October, 1754 in Virginia is unknown. See Virginia
Gazette, (November 7, 1754), p. 2. Because of the proximity of the dates, it seems likely
that his sentence was commuted for agreeing to serve a number of years with the Army
fighting the Indians on the frontier.

PEACE 141

apart and were carpeted beneath by grass and wild pea vine that sometimes
grew as high as the back of George’s horse.37!

He had reached 55 years, an age when many men were ready to start winding
down to enjoy the results of their labors. But George had to settle his family, a
new life to build for for himself and the children from two marriages.
Fortunately he held 10 servants to do most of the heavy field work and the
routine household chores.

While George was relocating his family in South Carolina, major events
were transpiring in the United States, making 1789 the most important year
ever for the Foote family and for the new nation. When George and his family
left for South Carolina, North Carolina and Rhode Island were the only two
holdouts among the 13 states who would support the new Constitution.
Between his departure and North Carolina’s belated ratification of the
document on November 20, 1788, electors chose George Washington the first
President of the United States; the Senate and the House of Representatives
were organized; the Congress created the Supreme Court and the rest of the
Federal Court System; Congress sent the Bill of Rights to the States for
Ratification; the United States Army was created; and George Washington
appointed Alexander Hamilton as Secretary of the Treasury, General Henry
Knox as Secretary of War, Edmund Randolph as Attorney General, and
Thomas Jefferson as Secretary of State.

Six days after the North Carolina ratification, President Washington
proclaimed the first Thanksgiving Day. The Foote family had many reasons to
celebrate--not only for their new nation but for their new South Carolina
home as well.

By December, 1790, John Foote, Sr. had joined the rest of his family and his
Loughridge in-laws in South Carolina, leaving only George, III, and his family
in North Carolina. On the last day of the year John purchased 160 acres of land
for 708 Sterling near his father on the South side of Sandy River “commonly
called River Bulling’’3?2 from James Dillard and his wife, Priscilla.

John and his wife had added another son to their family, who they named
George Washington Foote. George II must have greatly enjoyed both his
families now--the older sons he had with Margaret Kincheloe with their own
families and his younger sons Henry and Richard, still under the close

37\For a good description of what the pioneers found in the piedmont of South
Carolina see South Carolina: Resources and Population, Institutions and Industries
(Charleston: State Board of Agriculture, 1883), ;p. 146.

372This land was part of a tract originally granted John Davis in 1767. Deed Book B,
Chester County, South Carolina, p. 597. John Foote did not leave North Carolina until
after the April, 1790 term of Caswell County, North Carolina Court for on that date he
was found guilty in a suit brought by Solomon Softis and paid damages of 52's and
costs.


138 CHOTANKERS

Would Gilson have expressed the desire to see his cousin, especially since
she is now a heroine of the Revolution? She lived 13 miles from her mother ina
home Gilson could reach by going three miles to Coleman’s on the road
leading to Edgefield Court House; then turning southwest for 10 miles, he
would cross Big Creek, a branch of the Little Saluda River, and finally cross the
Little Saluda itself, before reining up at William Butler’s house near Mount
Willing.

If Gilson felt somehow overshadowed by the Revolutionary bravery of his
cousin her husband at 28 years must have made him feel much more juvenile
than the actual six years of age difference. Trading stories about their families
and reminiscing about the 19 year interim between meetings, Behethland must
have explained William had been very harshly touched by the Revolution. He
had lost his father at the Cloud’s Creek massacre after having served 18
months in irons in the British Fort at Ninety Six and at Charleston for refusing
to swear allegiance to the British. To make the tragedy worse, if possible,
William’s brother, James, died in the same battle. Before coming of age,
William himself had served in several units of the Southern Army. Finally, in
February, 1781, he was made a Captain of the Mounted Rangers, and the next
year helped surprise a band of Tories under the notorious William
Cunningham. Riding a faster horse, Cunningham barely escaped the wrath of
Butler.>

If William told Gilson why he expected to be chosen a member of the South
Carolina Convention to consider adoption in the next few months of the
Constitution, then he would have explained why he would have to vote against
it. Fortunately, although William Butler voted against adoption of the Federal
Constitution as a member of the S.C. Convention in May, 1788, while he and
72 other representatives were voting ‘‘nay” another 149 voted “yeas.”

Visit completed, Gilson bid farewell to Behethland, William and their two
young babies, James and George, and turned West toward Edgefield Court
House from where he would head North for home.

Gilson’s successful return to Hostler Creek with the news of bountiful land
at reasonable prices and his father’s decision to make the move is signaled by
deeds for 708 acres for all of the Foote land on Hogan’s Creek executed in
September and December of 1787 soon after Gilson’s return--largest share,
608 acres, bought by his brother-in-law, John Williams.3® George, II, having
sold George, III, 418 acres of the Hostler Creek land in 1785, was left with 157
acres, the site of his home on Hostler Creek. This home tract would not be sold

34Butler of South Carolina”, John Bennett Boddie, Historical Southem Families,
Volume I (Baltimore: Genealogical Publishing Company, 1967), pp. 13 to 16.

365Deed Book E, Caswell County, North Carolina, p. 278, and Deed Book F, Caswell
County, North Carolina, p. 64.

PEACE 139

until a few days before Christmas, 1788,3° after George, wife Nancy and their
young sons, Henry and Richard, and all of George’s children by his first wife--
except George, III and John both married with families of their own--had
arrived at their new home in Chester County, South Carolina.>°?

I

The Foote family history drafted before 1880 carries this lone notation by
the name of George Foote, II: ‘Moved to So. Carolina and d. there.’?®

Arriving before summer ended in 1788%’, George had traveled with his
family from North Carolina by way of Guilford Court House, through the
Jersey settlement and over the Yadkin River at Trading Ford to Salisbury;

366Deed Book F, Caswell County, North Carolina, p. 125.

71m addition to George Foote, III, and John Foote, Sr.’s families, all of Henry
Foote’s descendants remained in North Carolina. However, there were several other
Foote families in the state by this time, or would appear in the next few years, with no
known connections to the Chotank Footes.

One of these families was that of John Foote, who lived in Grayson and Rowan
Counties after coming to North Carolina after the Revolution, having been a British
soldier with Cornwallis. In 1800, he moved with his family to Kentucky and in 1819 to
Montgomery County, Indiana. See ‘Genealogical Notes of John Foote’’, in Nathaniel
Goodwin, The Foote Family (Hartford: Press of Case, Tiffany and Company, 1849), p.
296.

About the time George Foote and his family were moving to South Carolina, David
Foote died in Carteret County, North Carolina. Administrators were Hepsebeth Foote,
his wife; George Bell, her father; and David Cooper. David Foote has proved
Revolutionary War service. His descendant, Lallah A. Cordova, 206 Virginia Avenue,
Morehead City, North Carolina 28557 has researched this family, according to her
April 10, 1981 letter to this author. See P.W. Fisher, One Dozen Pre-Revolutionary War
Families (New Bern, N.C.: New Bern Historical Society), p. 533.

Eli Foote, originally from Guilford, Connecticut, died in North Carolina on
September 8, 1792. He was the grandfather of Harriet Beecher Stowe, author of Uncle
Tom's Cabin. For his descendants see Abram W. Foote, Foote History and Genealogy,
Volume I, (Rutland, Vermont: Tuttle and Company, 1907), p. 89. For a description of
his business interests in Murfreesborough in conjunction with his brother, Justin, and
son, John P. Foote, see Thomas C. Parramore, The Ancient Maritime Village of
Murfreesborough: 1787-1825, (Murfreesborough, N.C.: Johnson Publishing Company,
1969).

One John Foote married Mary Kingsbury in Wilmington, North Carolina on July 25,
1804. See Carrie L. Broughton, “Marriage Notices from The Raleigh Register and North
Carolina State Gazette’, Daughters of the American Revolution Magazine, Volume

LXXXVIII (November, 1950), p.-889.

%8See “The Virginia Branch” in Ahram W. Foote, Foote History and Genealogy
Volume I, (Rutland, Vermont: Tuttle and Company, 1907), p. 554. According to the
author, ‘I have followed the record as given by Gov. H.S. Foote."’ Gov. Foote died in

1880.


192 CHOTANKERS

Gilson would have risen to see a handsome and excellently dressed Judge
Gantt enter the Courtroom and in a “‘fine’’ and “clear” voice-so musical it was
said to have ‘charmed every hearer”’ - call the Court to order. The minutes
record his action:

In this case the Prisoner was brought to the bar upon his trial and put
himself upon God and the Country, and the following Jury were charged
upon his trial to Wit: Thomas Meriwether, Caleb Holloway, Cadwell Evans,
Luke Devore, Ransom Holloway, Henry Evans, Wyatt Holmes, Lewis
Ethridge, George B. Elom, John Edwards, Jacob Hewit and Nicholas Fox...>!*

Thomas Meriwether was named foreman of the Jury. Born in Georgia in
1781, he moved to Edgefield County before 1819 when he donated five acres
of land and built Bethlehem Baptist Church upon it. Over his life he owned
thousands of acres at various times, making his home between Stevens Creek
and the Savannah River in an area called ‘“‘Skipper’s Georgia.”” His son Robert,
as a Captain in the Confederate Army in 1861, would be present at the
surrender of Fort Sumter. Embittered by the treatment of the South after the
war and troubled by his surrender of ‘‘Meriweather’s Battalion” at Albany,
Georgia, in 1865, he would emigrate with his family to Rio de Janeiro, Brazil,
where he died and his descendants still live.5!5

The case against Gilson Foote, designed to convince the jury that he was a
man “long unwhipt of justice’’,>!© was presented by John S. Jeter, the solicitor
of Edgefield County. His manner was short and direct, using ‘no unnecessary
words” it was said, leading all in the Courtroom to expect that this case, like
most of the others he prosecuted, would be speedily completed. Jeter had been
a member of the South Carolina House of Representatives when he was elected
Solicitor in 1820, an election challenged unsuccessfully in Court by the
Revolutionary soldier Robert Stark, who had held the office for 14 years
before his defeat by Jeter. Gilson felt as good about the prosecutor as a
convicted man could after Brooks surely told him that Jeter was greatly
“respected for purity of intention.’’ Not only was Jeter always honest in
relations with others but kind-hearted--reassurance for Gilson that Jeter
would only present the facts he could be sure were substantiated by the
evidence.>!?

But as the testimony unfolded it became clear to those in the Courtroom that
Whitfield Brooks would be hard pressed to reverse Jeter’s image of Gilson Foote

514Minutes for 1808-1847, Court of General Sessions, Edgefield County, South
Carolina, p. 114.

515Nelson Heath Meriwether, The Meriwethers and Their Connections (Columbia,
Missouri: The Artcraft Press, 1964), pp. 431-39.

5'6Jack K. Williams, Vogues in Villainy: Crime and Retribution in Ante-Bellum South
Carolina (Columbia: University of South Carolina Press, 1959), p. 20.

517O'Neal, “John Speed Jeter", pp. 83-84.

ANOTHER MURDER AT EDGEFIELD 193
as an “aged horse thief.” If not forcefully presented, Jeter firmly demonstrated
that Gilson Foote had ‘'no need for an animal... He simply found it difficult,
from force of long habit, to pass up the opportunity to ride him off.’’'®

Not that Whitfield Brooks was incapable of reversing ajury’s preception of
facts. After receiving his academic education mostly at Mt. Bethal in Newberry
District, he had graduated in 1812 from South Carolina College, one of four
selected to present orations at commencement. His practical abilities had been
enhanced by law study in Edgefield where he was admitted to the bar in 1815
and became almost immediately Commissioner in Equity, a post he would
hold until 1833. Later he served in the House of Representatives. John B.
O’Neal, a classmate at South Carolina College and a lifelong friend, wrote of
Brooks:

Mr. Brooks was high-minded, chivalric, and generous gentleman. If he had
a fault, it was that he was too impulsive; but his impulses were generally right.
If sometimes he may have acted rashly, he never to my knowledge, injured a
human being.°!9

If he ever thought he had acted rashly in taking on the Gilson Foote case--
partially because of his great respect for his Aunt Behethland Foote Butler--he
certainly did not let his impulsiveness destroy his defense, for as Jeter’s case
unfolded, he recognized the mounting problems of gaining an acquittal.

Gilson Foote had not lost hope even after the summation: didn’t he have
every right to expect that in the home county of the Butlers he would get his
best hearing, even if he secretly felt that he didn’t deserve it?

As typical of the Jeter prosecuted trials, within two days after the trial
opened the jury returned to the Courtroom with a verdict, read by Foreman
Meriwether: ‘We find the prisoner, ‘Guilty’ but from his extreme old age
recommend him to mercy.” It was Wednesday morning, March 10, 1824,
when Judge Gantt called on Gilson Foote to rise and approach the bench for
the sentence. In the strong, clear voice for which he was well-known, Judge
Gantt read the sentence:

The Sentence of the law, that you Gilson Foote be taken from hence to the
place from whence you came and that on Friday the twenty first day of May
next you be taken to the place of execution and there between the hours of

five in the morning and six in the evening, you be hanged by the neck till your
body be dead. And May God have mercy upon your Soul.*°

The shock that spread over the Courtroom must have been most felt by
Whitfield Brooks and Pickens Butler. They had expected that Judge Gantt
would show mercy recommended by the jury.

The hot sun would beat down on the dingy cell of Gilson Foote all summer
as the two great men worked to reverse the Gantt decision to hang Foote--two

SI8Williams (book).
519O'Neall, “Whitfield Brooks’’, pp. 473-75.

520Minutes for 1808-1847.


CHOTANKERS

Whereas, the grand jury of this district at the present term of court, have
found a true bill against Gilson Foote for stealing a gelding, and whereas it
appears unsafe for the said Gilson Foote to remain in the jail of this district,
until the next term, on the motion of John S. Jeter, solicitor--ordered that E.B.
Belcher, Sheriff of this district, remove as soon as possible the body of Gilson
Foote from this jail to the jail in Newberry District, and there is to: remain
until the 27th day of February next at which time, the sheriff is ordered to
cause the body of Gilson Foote, to be returned to this jail to stand trial at the
next term of court, for the aforesaid charge.5”

Although Gilson Foote must have wondered about the identity of the men
of Edgefield intent on eliminating his future before law could act, he had seen
enough of the tiny Edgefield jail to know that he would be better off
somewhere else. He had been housed in one of the four cells, each with a tiny
window eight feet from the floor. ‘‘When entering these cells,’ an 1820
investigating group chairman had reported, ‘the heat and stench about them
were so great that I was obliged to decline entering... Any confinement in this
goal [jail], is an excessive punishment, and if long continued, must prove
fatal.’’5!0

The Butlers and the Yarboroughs of Edgefield County had maintained
contact with Gilson Foote’s niece, Harriet Foote Johnston, in Newberry
County. Gilson Yarborough, Sr.’s son, George M., would study medicine in
Newberry with Harriet’s husband, who became young Yarborough’s
“preceptor in medicine.”” Immediately, they sent word to Harriet that her
Uncle Gilson would be lodged just a few blocks from her home in the
Newberry County Jail.

It is most likely that Harriet contacted Gilson’s remaining, full brothers
about his arrest. William and James Foote remained in South Carolina and
both were successful planters and merchants with substantial political
connections. They certainly would not have ignored Gilson’s plight.

George Foote, III was of course in Indiana, too far to aid Gilson legally, and
clinging to the necessities of life himself declaring in May, 1822, that he did not
own “any property or securities, contracts or debts, due to me nor have I any
income.’ His possessions had shrunk to ‘two feather beds and furniture, two
trunks, half a dozen chairs, one pot dutch oven and skillet, half a dozen plates
and two dishes.” He added to the list, ‘tone mare, one cow and yearling, one
dozen spoons, and a pair of drawing chairs, [and] two pair of pot hooks.5!!

Sadly, Sally and Gilson, Jr. received no word at all about Gilson, Sr.’s
predicament.

5°%lbid.

510"'Report of Board, 1820”, in Kohn and Glenn (eds. ), Internal Improvements, pp. 28-
29. Quoted in Williams (book), p. 116.

5''Revolutionary War Service Series of Pension Application Records, The National
Archives, Washington, D.C.

CHAPTER THIRTEEN

ANOTHER MURDER
AT EDGEFIELD

I

Whatever attempts William and James made to have Gilson freed were
unsuccessful and Sheriff Belcher returned Gilson to the stench-filled cell at
Edgefield Courthouse on February 27, 1824. On March 8th, the Sheriff
escorted Gilson Foote, looking much older than his 59 years, into the
courtroom of the Honorable Richard Gantt, himself 57 years old. A native of
Prince George County, Maryland, Judge Gantt, now lived in Edgefield
County, just east of Cheves Creek, off the road from Edgefield Courthouse to
Augusta, Georgia, roughly equidistance from both communities. After
coming from Augusta to Edgefield in 1794, he had been a great success in his
practice of law. Gilson’s attorney felt as good about the prospects for acquittal
under Gantt as could have been possible under the applicable charges and
available evidence. Gantt had a reputation of a “merciful disposition”
frequently positioning himself between the accused and conviction. John
Belton O’Neall recalled that he had told Judge Gantt what everyone else
already seemed to know--that “the made himself the advocate of rascality.’’>!?

In a seeming contradiction of his character he had little tolerance for
drinkers, being known as a staunch “‘teetotaller”. Gantt commented to one
Edgefield citizen ‘Them d--d A’s [alcoholics] in your neighborhood...the
drunker they get the more religion they have.” Gilson would have been
warned by Whitfield Brooks to make no references to his confiscated distillery
in Chester County or of his purchases and sales of whiskey.

512John Belton O'Neall, ‘Richard Gantt”’, Biographical Sketches of the Bench and Bar of
South Carolina, Volume I (Charleston: S.G. Courtenay and Company, Publishers,
1859), pp. 129-32.

533John A. Chapman, History of Edgefield County (Newberry, S.C.: Elbert H. Aull,
Publisher, 1897), p. 406.

191


194 CHOTANKERS

men whose destiny is so closely linked to the history of the United States and
her eventual rupture.

But Pickens Butler did not let the Gilson Foote matter keep him from his
predetermined course, for that summer he announced that he was a candidate
for the state legislature from Edgefield District. Amazingly, he campaigned
successfully, turning away any questions that seem to imply a familial defect
and link him to the Gilson Foote affair.>!

The charge of a familial defect would rise to haunt Butler over thirty years
later on the floor of the United States Senate, but unable to defend himself and
his name because of his absence, a national tragedy would occur. Butler
reached the Senate in 1846 by appointment. Subsequently the voters elected
him to the seat, where he served as the junior member until 1850 with John C.
Calhoun who died that year. It was John C. Calhoun, elected to Congress in
1811, who joined the young Henry Clay of Kentucky in leading those who
urged war on England. Clay would later marry the young cousin of Gilson
Foote’s brother-in-law, Benjamin Hart. Interestingly, a grandson of the
foreman of the jury that convicted Gilson Foote, Robert Lee Meriwether
edited years later The Papers of John C. Calhoun.>22

Calhoun wondered aloud as he struggled to get his last few breaths ‘‘the
South--the poor South; God knows what will become of her now.” He died in
1850, thrusting Pickens Butler into leadership of the Southern position and
for South Carolina. He faced his greatest test in 1856, after he became the
Southern spokesman in a heated debate with Senator Charles Sumner of
Massachusetts over the Kansas-Nebraska question, leading to bloodshed on
the floor of the United States Senate a few days later.

Residents of slave-holding Missouri had poured into Kansas, setting up a
government of their own to counter the ‘free state’? movement centered in
Lawrence, Kansas. The Civil War between the two became known as
“bleeding Kansas.” In Pickens Butler’s absence, Senator Sumner delivered a
blistering speech--'' The Crime Against Kansas’’--devoting a major portion toa
personal attack on Butler, referring derogatorily to slight paralysis of the

52On June 11, 1975, the author interviewed Richard Coleman, 80 years old, at his
store, just one-half mile from the old Butler home site--now in Saluda County. A
distant relative of former Governor J.P. Coleman of Mississippi, he had lived all his life
in the area and was a former Road Commissioner. Although he knew few details, he had
heard as a child from the older folks in his family that one of the Butler relatives had
been hanged for horse stealing. He knew that there was a common knowledge of the
event among the older population. It seemed to this author that Mr. Coleman's greatest
concern was protecting the reputation of the Butler family.

522Robert Lee Meriwether, a grandson of Thomas Meriwether and nephew of Robert
Meriwether, who moved to Brazil, became a famous historian, educator, and author,
writing Expansion of South Carolina and serving as a journal editor. He became Director,
South Carolinian Library, University of South Carolina. Meriwether, p. 435.

ANOTHER MURDER AT EDGEFIELD 195

mouth Pickens had developed. Described by scholars as ‘cold, humorless,
intolerant, and egotistical”, Sumner referred to pro-slavery men as “‘hirelings
picked from the drunken spew and vomit of an uneasy civilization.’’>23 But he
saved most of his insults for Butler himself.

If the slave states cannout enjoy what, in mockery of the great Fathers of the
Republic, he [Butler] misnames equality under the Constitution--in other
words, the full power in the national territories to compel fellow men to
unpaid toil, to separate husband and wife, and to sell little children at the
auction block--then, sir, the chivalric Senator will conduct the state of South
Carolina out of the Union! Heroic knight! Exalted Senator! A second Moses
come for a second exodus!

But not content with this menace...the Senator, in the unrestrained chivalry
of his nature, has undertaken to apply opprobrious words to those who differ
from him on this floor. He calls them ‘sectional and fanatical’; and
opposition to the usurpation in Kansas he denounces as an: uncalculating
fanaticism.”’ To be sure, these charges lack all grace of originality, and all
sentiment of truth; but the uncompromising, unblushing representative on
this floor of a flagrant sectionalism, which now domineers over the
Republic...

With regret, I come again upon the Senator from South Carolina [Butler],
who, omnipresent in this debate, overflowed with rage at the simple
suggestion that Kansas had applied for admissions as a state; and, with
incoherent phrases, discharged the loose expectoration of his speech, now
upon her representative, and then upon her people. There was no
extravagance of the ancient parliamentary debate which he did not repeat.
Nor was there any possible deviation from the truth which he did not make,
with so much passion, I am glad to add, as to save him from the suspicion of
intentional aberration.

But the Senator touches nothing which he does not disfigure--with error,
sometimes of principle, sometimes of fact. He shows an incapacity of
accuracy, whether in stating the constitution or in stating the law, whether in
the details of statistics or the diversions of scholarship. He cannot ope his
mouth but out there flies a blunder...°4

Only four years old at the time of the trial, Preston S. Brooks, the son of
Gilson Foote’s attorney, had married by 1841 Carolina Harper Means, the
great-niece of Isabella Means Foote, Gilson Foote’s sister-in-law.>> Now 37,
he had been elected to Congress after serving as a captain in the Mexican War

523Thomas A. Bailey, The American Pageant: A History of the Republic (Boston: D.C.
Heath and Company, 1961), p. 368.

524"Bleeding Kansas and ‘Bully’ Brooks", Thomas A. Bailey, editor, The American
Spirit: United States History as Seen by Contemporaries, Volume I (Boston: D. C. Heath
and Company, 1963), p. 397.

525Carolina Harper Brooks died June 28, 1843, soon after childbirth. She is buried in
the Means Burying Ground in Fairfield County near where Governor Hugh Means
lived. The inscription reads ‘'she kissed her boy and died/and he on the same day...”
Louis K. Crowder, Tombstone Records of Chester County, $.C. and Vicinity, (Chester,
S.C.: Privately published by the author, 1970), p. 138.


196 CHOTANKERS

and one term in the state legislature. Preston Brooks was furious at Sumner;
hot-tempered and inheriting some of the impulsiveness of his father he forgot
his ordinarily gracious and gallant demeanor. On May 22, 1856, he entered the
Senate chamber approaching the Senate desk where Senator Sumner sat intent
on the business of his colleagues that had just been completed. Raising the cane
he carried above his head, Preston Brooks began to pound the tall and
handsome Senator until he collapsed and his frame slid beneath the desk; the
cane finally yielded to the force of blows and broke in Brooks’ hand.

Sumner lay bleeding and unconscious as Representative Brooks was led
from the chamber by Sumner’s fellow Senators. Of the assault the New York
Times observed:

It is disgraceful enough that any man living in a civilized
community...should resort to the club as a mode of expressing a difference of
opinion or of resenting an impeachment of political character. But that an
assault of this kind should be made upon a man known to be unarmed, and
under circumstances which rendered it impossible for him to make any
resistance whatever, the basest and most brutalized of the race. A New York
dog-killer has notions of honor that would make it impossible for him to
commit such an outrage.576

In the North he became known as ‘Bully Brooks” while in the South many
now considered him a hero. In Edgefield County the citizens passed a
resolution calling Brooks’ actions “the true spirit of the Southern chivalry and
patriotism...chastising, cooly and deliberately, the vile and lawless Sumner.”

Supporters from all over the South “deluged” him with canes, many with
gold handles or heads. In the long run it was the South who would suffer most
from the affair, although Sumnert’s injuries kept him away from the Senate for
three and a half years and his desk remained empty. He finally returned to his
seat on the eve of the Civil War. No doubt, Stanford University’s Thomas
Bailey is right--''The blows rained on Sumner’s head were, broadly speaking,
among the first blows of the Civil War.”’5*? And it seems ironic that Whitfield
Brooks’ son would go unpunished 30 years later--uncensured--even praised
for almost beating a man to death in the U.S. Senate, while in 1824 his client
would hang for stealing a gelding.

Il

By August 1, 1824, it was clear that the avenues of postponement of Gilson
Foote’s hanging had been exhausted. The State had granted stays but Governor
Wilson refused the requests for a pardon. Whitfield Brooks tried to prepare
Gilson for what now must have been seen as an inevitable end to his life. Still

526The New York Times, May 24, 1856 quoted in ‘Northerners Denounce
Ruffianism”, Bailey, The American Spirit, p. 399.

27Bailey, The American Pageant.

ANOTHER MURDER AT EDGEFIELD 197

Gilson refused to notify Sarah and Gilson, Jr. in North Carolina, although he
knew quite well that by now Sarah had given him a new son or daughter.

Could he have been visited by Behethland Foote Butler? Probably not, but
no evidence exists to prove she did not come to the jail. Certainly she grieved
over what was about to happen to her first cousin, the son of her dear Uncle
George. Accepting death as a matter of course, Behethland became convinced
she would outlive all the members of her family, even her children. That nearly
happened for, by the time she reached 86, of her children only Pickens Butler
remained alive.

Now the scaffold construction began; fortunately Gilson could not see out
of the tiny window that let in the thin rays of light two feet or more from the
top of his head. The noise of the beams and planks being anchored securely left
him with no doubts about the finality of what would surely occur. August 6th
had been designated as the new date for the execution, and the state was
spending nearly $100 to end Gilson Foote’s life.

The morning of the hanging Whitfield Brooks came to the jail to inform him
for a final time: no pardon had been received from the Governor.*8 Gilson
probably expected that answer, having reconciled himself to his not-too-
distant fate, for Whitfield found him already at work on a list of obligations
which Sheriff John Kennedy of Chester County owed him. For ‘‘the fishery
and lands pertaining in Mountain Island’’ he showed a value of $2,000. An
additional amount of $150 to $200 per year, Gilson listed ‘‘'due”’ for the eight
years that Kennedy had been in possession of the island and fishery. Kennedy
had collected on other debts due Gilson in his absence which he recorded:

Receipt for 287 Gallons Whiskey delivered by Storman $287
28 Gallons Whiskey delivered Saml. M. Monahan $ 28
1 Negro Boy George $300
1 Waggon & Harness...Paid by Jeremiah Gather $150
1 Horse...pd. by Love of Turkey Creek, an Irishman $140

Concerning one old account related to the purchase of two Negroes from his
father’s estate, Gilson wrote: ‘‘Of the execution obtained by Executors of Geo.
Foote against myself when said Kennedy, Sheriff--If 1 am charged more than
four Hundred dollars, Richard Foote’s oath, one of the Executors, will prove it
was settled and receipted for that sum. The ex.rs paid in full.’"529

528This conclusion is based on a comparison of the original execution date ordered by
Judge Gantt with the actual date. Because pardon appeals were handled on an individual
basis and only a few records of such pardons, appearing here and there as scattered
entries in correspondence files, survive no documentation on Gilson Foote’s certain
appeal has been located. If a pardon had been granted, Governor Wilson would have
completed a blank form and sent it directly to the Edgefield Sheriff.

529This document in Gilson Foote’s own handwriting is in Box 37, Package 1439,
Edgefield County, South Carolina.


-The Post and Courier, Saturday, June 14, 41997

1-95 killer dies

by lethal injection*™

Associated Press

COLUMBIA — Michael Eugene
Elkins, convicted of killing a wom-
an who stopped to help him on 1-95,
was executed early today after
shunning last-minute appeals.

Elkins died by lethal injection at
12:58 a.m., just two days short of
his 42nd birthday.

He was convicted of killing
Patricia Whitt, 59, of Largo, Fla.,
on July 9, 1990, after she stopped
to help him and another man who
feigned car trouble along Inter-
state 95 near the Georgia border.
She was stabbed eight times and
robbed.

Elkins was the first inmate exe-
cuted in South Carolina this year
and the 12th executed since 1985,
when the state’s death penalty was
reimposed.

He was moved Thursday morning
from the new Death Row at Lieber
Correctional Institution near Ridg-
eville to the Broad River Correc-
tional Institution outside Columbia
where the execution complex is lo-
cated, prisons spokesman John
Barkley said.

As his final meal, Elkins asked
for fried shrimp, 4 roast beef sand-
wich and clam chowder.

The condemned inmate waived
his court appeals, though his law-
yer, Kevin Bell, said paperwork for
a federal appeal was ready in case
Elkins changed his mind.

About 15 members of the South
Carolina Coalition to Abolish the
Death Penalty gathered early

Thursday night for a candlelight
vigil outside the Governor’s Man-
sion.

“Others might be screaming ‘Fry
him,’ but hopefully sometime dur-
ing the night, someone will pray,”
organizer Kathy Riley said after
Monsignor Thomas Duffy of Flor-
ence led the group in prayer.

Death Row inmates are not al-
lowed interviews, but in response
to a letter asking for his feelings as
his execution approached, the
Gates, N.C., man responded with a
poem he wrote last month.

“Jesus is My Saviour and when
he touched my heart, my soul was
set free,” it said in part.

Bell said the once slightly built
Elkins had swollen from spleen and
liver problems and was very un-
comfortable in prison. “His life
would have been cut short any-
way,” Bell said.

Whitt had met Elkins and Ralph
Garner of Wheeling, W.Va., earlier
on the night of her death when they
helped to fix her car, which had
overheated on the interstate. She
had given them $10 for helping her.

Garner, who had hitched a ride
from Elkins, later testified that af-
ter Whitt stopped to help them,
Elkins stabbed her and robbed her
of money and jewelry. Garner was
acquitted of murder in October
1990.

Elkins was arrested several days
following the murder in Dallas af-
ter his girlfriend turned him in. He
had given her three of Whitt’s
rings.


Elkins becomes S.C’s first

Chaaleston ,S.¢

The Post and Courier, Friday, June 13, 1997:

M@ AGONIZING: Michael Eugene Elkins was pronounced
dead at 12:58 a.m. Friday after being injected with a
mixture of pentothal, pavulon and potassium chloride.

Associated Press

COLUMBIA — Even though it
took officials an agonizing 45 min-
utes to find a vein to execute con-
victed killer Michael Eugene
Elkins, his victim’s son found little
consolation.

“Elkins left this world a lot easi-
er than my mother,” Miles Whitt
said. “We didn’t get any satisfac-
tion. For us, this is the closing
chapter of a seven-year nightmare.

Elkins, 41, was pronounced dead
at 12:58 a.m. Friday, becoming the
first inmate executed in South Car-
olina this year and the 12th since
the death penalty was reimposed
here in 1985.

He was convicted of killing
Patricia Whitt, 59, of Largo, Fla.,
who was robbed and stabbed eight
times July 9, 199C, on the interstate
just inside the South Carolina bor-
der.

After the execution, Mrs. Whitt’s

son and execution witness, Miles,
said his mother’s murder destroyed
two families’ lives.

“His life is all he had to trade.
I’m sorry he didn’t have a better
life,” he said.

At 12:40 a.m. Friday morning,
the curtain was pulled back from
the window separating the execu-
tion chamber and the witness room
and Elkins’ lawyer read the
inmate’s final statement. It
said in part, “My life for hers is a
poor trade but it’s all I could of-
fer.”

Elkins, 41, then glanced over at
his friend and execution witness J.
David Simpson, who flashed him a
sign of support.

He also looked at a message
written on a legal pad by Miles
Whitt. It read: “Mike, this was
needless. She would have given you
anything you needed.”

Then a deadly mixture of pento-
thal, pavulon and potassium chlo-
ride was pumped into a vein in
Elkins’ neck.

His breaths were slow at first. As
he exhaled, his lips flapped, mak-
ing a noise that sounded like snor-
ing. His eyes slowly closed and his
breathing grew faster until his lips
held still and only his throat moved
rapidly.

About 12:45 a.m. his breathing
seemed to stop.

Miles Whitt sat watching, tears

inmate executed this year

streaming down his face, as Elkins
lay on the table, his face changing
from a pink, to gray, to bluish pur-
ple.

Elkins was pronounced dead 17

minutes after the injection.

Mrs. Whitt met Elkins and Ralph
Garner earlier the night of her
murder when they helped to fix her
car, which had overheated.

She gave them $10 for helping.

Elkins was arrested days later

after his girlfriend turned him in.

He had given her three of Mrs.
Whitt’s rings. Garner, who was ac-
quitted of murder, testified against
Elkins.

The condemned inmate waived
his court appeals.

SOUTH CAROLINA:

6/12/97 -- 5:00 AM
I-95 killer of Florida woman faces execution

COLUMBIA, S.C. (AP) - The federal appeal paperwork is ready, just in case
Death Row inmate Michael Eugene Elkins changes his mind about his imminent
execution.

Attorney Kevin Bell said Wednesday a phone call to a federal judge would
start the process, though it appears to him that Elkins "Seems at ease at
what he's doing." .

Elkins, 41, of Gates, N.C., has waived his federal and state appeals and
is scheduled to be put to death at 12:01 a.m. Friday by lethal injection.
He would be the first inmate executed in South Carolina this year.

Asked how he feels about his fate, Elkins replied on the back of a
photocopy of a $5 bill. "God is my father, love is his message. Jesus is
my Saviour and when he touched my heart, my soul was set free," he wrote
in response to a letter from The Associated Press.

State prison officials do not grant interviews with Death Row inmates.

Elkins was convicted in the July 9, 1990, killing of Patricia Whitt of
Largo, Fla. She was stabbed eight times after she gave Elkins and Ralph
Garner of Wheeling, W.Va., $10 for helping her after car trouble left her
stranded on Interstate 95 near the Georgia border.

Garner, who hitched a ride from Elkins, was acquitted of murder in
October 1990 and testified against Elkins.

Prisons spokesman John Barkley said Whitt's son will witness the execution.

State attorney general's spokesman Robb McBurney said the execution is
expected to go as planned.

Another inmate who was scheduled to die Friday, 27-year-old Jason Byram,
was granted a stay of execution Tuesday by the state Supreme Court.

The last person executed in South Carolina was Frank Middleton, who died
in mid-November. He was one of six inmates executed last year. Since 1985,
when the death penalty was reinstated, South Carolina has executed 11
inmates.


NAME “ % f fe pt : Peek — CITY OR COUNTY . DOE & MEANS

art ames Kinloch sos? Pehert ota} az E_ Wxxkt }-27-193),

| BOB OR AGE RACE OCCUPATION RESIDENCE ° ee M3 GEN

Bae Sa. ang
"38 - | Black ai +. |. Snowden, Charleston Co,

RECORD

orate oe ras

visrim George ‘Calvin Garrett, XWXKAN stored fee) aren ween ae
Christ Church Parish store clerk © ~ |white btudgconed hatchet and pump handle

MOTIVE

SYNOPSIS

praia) tg and ended SpA sp poenge of venue ie ep Confessions eee over podeete one of

body a git south of the store iincde: Cooper Biver, Policeman had ina peatehie aa finding
bloodstains on front porch of store, Trail was followed to bodyxwhich was found lying on back in
ditch four feet deep, Pump handle, whichwas murder weapon, and wheelbarrow (it used to haul
body and its tracks followed to it) “hemi both blood stained, Heard that Ellis was seen in
er a ot r ed home since and Ellis arrested on 12-2. He
ttn eeeee of ae melee confessed iv ee and O eaaher tana asi oa on id dee ecu

of cane until confronted with Ellis ¢ on. Jans 13 and hey ee confessed,
bludgeoned G : 5 lispos
away, and then returned +3 son stave: CHAR ESTON NaWS AND COURIER, 3-8-193)

_"Sheriff Poulnot said both had been calm and well behaved since the passing of the : sence,
Apparantly, he said, full realization of theseriousness af their crime and of the meaning of
the sentence did not sink into their minds until yesterday. When Judge Arthur L, Gaston, pre-

~ siding at the March term of the court of general sessions, passed the death sentencés, his
first, Ellis, the younger of the two, remained outwardly calm, Kinloch, however, appeared to be

ry ° z ) ch 105 493h5

"Columbia, April 27, 19dla—-ee ee cthe lives of John Ellis and James Kinloch, young Charl osten Co.
negroes, for killing G, C, Garrett, a white storekeeper, Both confessed their guilt from the
electric chair and declared no third party was involved inthe killing og Garrett last Dec, |
ww in a roboery at Snowden, Charleston County, Each was officially pronounced dead at the end
of Bis ee ee, = one 23 the swiftest ee oe inr ecent years, It a was the first to be

on my way to Roiyanst The bodies were persion to be ‘stat to relatives at Snowden for tibiats
Thirteen-year-old Wilson Scott,of Cross, a nephew of the negroes@ victim, viewed the execution
with four adult witnesses. Recalling that the negroes first attempted to implicate a white mn
inthe hatchet murder of Garrett, his brother, John R, Garrett,of aes Sonate commented 'I always
thought there was a third person in it but it mst not have been so.’ The bodies of James Kinloch
lash von itiebe se ting dE sos ea bee hectoned in pe ceonatare ae phe pasa by: at ees reas 22

white man, a i whi okey: distiller of the nowlen Wointty but teicawiean was Eaciteed aitokiy byt the
_ juryxhearing the case against him, After the acquittal the negroes admitted that the accusation

tragzainst Ackerman was a hoax, part of an effort to secure a new trial and a possible Lighter _
sentence," CHARLESTON NEWS AND COURIER, Charleston, S. C,, April 28, 193)

After*mrder, cash register rifled and between 0 and 50 dollars taken. Crime occurred around 8;30
PM, Body discovered next morning when woman went to store and found noone there and bloodstains on

» frsnvwsetch, Searching party formed. MXXK NEWS AND COURIER 12-21-1933;

‘In confession, Ellis said he entered store to buy cigarettes and found Garrett playing a fiddle,

_ After making purchase, Loitered around until Garrett was ready to closé and Garrett, who knew him, —
sla him to go eee and get gas a evant When he cbteadrnce: parrere. was on eda BaP te

close and asked Ellis to. hag: pump handle, Garrett was closing blinds when Kinloch gaked i to
2-a-dolls ith pump handle

oa and Kinloch with a stick of pare: Re crekt rose ee hit Ellis in face and Ellis began bludgeoning
s] and Kinloch with a stick of wood, farrett rose and Kinloch got wheelbarrow on porch, they loaded
pody “into it and rolled across road into pasture and through it into wooded area where they Left it

about 4 mile from store, Kinloch said Ne only received $6.00 while Ellis got $12, Officers sus-

“péctéd som heorte"eT SS mate be involved be@ause at least WO reported Teague ite Rcthr
1-13-1933 3 be ace


282 8. C.

remained at the scene of the crime after the
negro had left; but these variances were of
rather minor importance. A close stady of
her testimony, and that given by Sutton,
shows that in the material and important
facts, the testimony of both witnesses agreed.
She corroborated Sutton as to the latter's
visit to her home on the fateful night; her
leaving the home with him to see her father
and to pay the drug store bill; the sugges-
tion of Sutton that they go first to the town
of Brookland; the visit to the Dickson home,
and the later effort to visit the Addy home;
the stopping of the car by Sutton to light the
cigarette; the appearance of the negro with
the long, black pistol; the robbery of Sutton,
and then of herself; the questions asked of
both Sutton and the prosecutrix by the ne-
gro, and their replies to those questions; the
criminal assault upon her; the discovery by
the negro of the attempt of Sutton to pull up
the iron stake, and the completion of the
pulling of that stake by the negro; the re-
turn by the negro to her of the dollar bill and
the car keys, the keeping, however, by him
of the picture of her younger sister; the
search, after the alleged robbery and crim-
inal assault, for officers in the town of Brook-
land; the return to the home of the prose-
cutrix, and the report of what had happened
to her mother; the visit to the hospital, and
the treatment which had there been given to
her. She thought the negro was with them
for two to two and one-half hours, and that
they did not leave the scene for from twenty
to thirty minutes after the negro had left.
She stated the pistol showed her in the court,
as being the one taken by an officer from the
defendant, looked like the pistol the negro
had on the night of the attack. Having been
married, and having undergone the experi-
ences of a married woman, she was able to
say positively that the negro who robbed
Sutton and herself also had sexual inter-
course with her. Her testimony was positive
to the effect that she submitted to that out-
rageous conduct because she was in fear of
her life at the hands of the negro, who, all
the time, had a pistol in his hand and threat-
ened to kill her. Her statement as to many
ot the things the negro said, the remarks
about the picture of her younger sister, his
lack of fear of the electric chair, his state-
ment that he had treated other white girls as
he had treated her, were, in the main, in
harmony with the statements of the negro
as related by Sutton. Prior to the alleged
crimes, she had never seen the accused in
her life that she knew of, She had a good
luok for a long time at him on the nght of

177 SOUTH EASTERN REPORTER

the attack. On Monday or Tuesday, fo'low-
ing that night, at the Columbia jail, she had
seen the defendant and had identified him as
her assailant. After having been examined
quite fully by both the Solicitor and one of
the attorneys for the defendant, Judge Grim-

ball asked the prosecutrix: “Now, you know :

that in this case if the defendant is convicted
that it means he will die in the electric chair.
Are you positive that is the man over there?”
The reply of the young woman was: “I am
positive.”

A. W. Dickson testified that Sutton, as tes-
tified to by the latter, did visit his home be-
tween 10:30 and 10:40 on the night of Sat-
urday, August 5, and that he told Mr. Sutton
that a Mr. Addy, who lived near the school-
house, was interested in the purchase of a ra-
dio. He saw some one in the car with Sut-
ton, but did not Know who the person was.

The mother of the prosecutrix testified of
the visit of Sutton to her home on the night
of August 5th, and the departure from the
home of her daughter and Sutton about 10
o’clock in the night, for the purpose of tak-
ing the message to her husband and the visit
to the drug store, of the return to the home
by them about 1:10 a. m.; that Sutton and

the young woman both were excited and ner- -

vous; that the daughter could scarcely talk,
and of her being informed by both of them
of the robbery and the rape. She told, also,
of the visit to the hospital to have her daugh-
ter treated, and she said the prosecutrix still
became hysterical in the dark. The mother
knew, when Sutton was visiting at her home,
that he was a married man.

Constable Glaze, of Brookland, told of the
visit to his home on the night of August 5th
by Mr. Sutton, accompanied by Mr. Price, a
night policeman.
bery, but said nothing at the time about a
rape having been committed. Mr. Glaze was
very busy with two fellows whom he had al-
ready arrested, and could not attend to the
robbery report by Sutton on that night. On
Monday, having received some information
from Sutton, he went on that night along the
public highway to about the line of Calhoun
county. The defendant, another negro man,
and a negro woman, traveling in the direc-
tion from Orangeburg came to a filling sta-
tion near where the oflicer was. They were
traveling in an Oldsmobile automobile. The
defendant told the constable that he was re-
turning from Orangeburg, and had bought
the automobile that Monday morning. The
negro had a loaded pistol in the car, the one
which was — offered in evidence. The

Sutton reported the rob-

Bes,

STATE: y. FLOYD
177 8.E. BO 388

officer arrested the defendant, and took him
to Brookland, and later to the Columbia jail.
Sutton came to the jail and identified the
negro as the one who had robbed him, and
described to the officers some articles that had
been taken from him. He especially men-
tioned about a little pin that had a crack in
its set being stolen from him. The officer
went to the room of the defendant, at 1015
Lady street, Columbia, accompanied by oth-
er officers and Sutton. Officer Corley found
the pin, which Sutton had described, and
Sutton identified it as belonging to him. The
negro did not seem to be worried when he
was arrested, and made no objection to go-
ing with the officer. He checked up on the
purchase of the automobile, and ascertained
from a receipt the negro had that the negro,
on the Monday morning following the attack,
had purchased an automobile at the price of
$125, and had paid on that price the sum of
$35 in cash. The defendant had $11 when he
was arrested.

Essie Mae Andrews, colored, who ran a
boarding house at 1015 Lady street, Colum-
bia, knew the defendant, who had roomed at
her house for a short while. She saw him
there about 8 o’clock on the night of August
Sth, and about that time saw him come down
the stairs from his room. She saw him also
at his room on Sunday morning. Floyd’s wife
lived in this room with him. She did not see
his ~ife on Sunday morning. She did not
know if the defendant spent Saturday night
in his room.

Officer Corley testified to the report of the
robbery made to him by Sutton, of the latter’s
description of the tie pin he claimed had been
stolen from him, and the identification of
Floyd as-the robber after the negro had been
arrested. He also told of finding the tie pin,
identified by Sutton as being his property, in
the room of the defendant. ;

For the defendant, four colored women tes-
tified. The first of these, Beulah Johnson,
Said she had known the defendant for a little
more than two months, and had seen him
around 614 Blanding street, Columbia, where
the witness lived. On Tuesday, after the al-
leged crime, she heard of it; that the defend-
ant spent the night of Saturday, when the
crime was alleged to have been committed, at
the Blanding street house. She had never
known him to spend the night there at any
other time. Pressed on cross-examination,
her reason for knowing that the defendant
had spent Saturday night in the house was
due to the fact that she had seen him there
Sunday morning about 8 o'clock.

Mary Cowan, who also lived at 614 Bland-
ing street, testified that she saw the defend-
ant at that house on Sunday morning. She
heard him go out of the house on that morn-
ing, but she did not know if he was there
Saturday night,

Estelle Bridges swore that she saw the de-
fendant on Sunday morning at the Blanding
street house.

Carrie Bell Camps testified that on Satur-
day night, when it was alleged that the crimes
were committed, the defendant spent the
night at the Blanding street house, sleeping
in the bed with her. He came to the place
about half past 8 or 9 o’clock; was there all
night, and she left him in the bed at 7:30 the
next morning when she went to her work.
The defendant had never spent the night with
her before, but he had visited her upon a few
occasions,

Sheriff Oswald testified that Sutton, in tell-
ing him of the alleged crimes of Tape and rob-
bery, told that the negro, who had committed
the crimes, with a string, used for tying fur-
niture, had tied his (Sutton’s) hands behind
his back to a stob driven in the ground. (This
testimony was contradictory of a statement
made by Sutton, when a witness, that he had
not given that information to Sheriff Oswald.
Sutton, when asked about the alleged state-
ment to Sheriff Oswald, said that he told the
sheriff that there had been a rumor that the
negro had tied him to the stob, but such was
not a fact. The prosecutrix, in her examina-
tion, had testified that the negro did not tie
Sutton.)

The testimony of the defendant, in many
respects, was very rambling. For that rea-
son, it is quite difficult to give in proper se-
quence the things he testified to. The sub-
stance of his story, however, was as follows:
Lately, he had resided at 1015 Lady street,
Columbia, but formerly had lived in Orange
burg. About half past 7 o’clock on the night
of August 5, 1983, he left his home, and went
to get an automobile to pick up some things
he had moved. About 8:30, he was on Wash-
ington street; got his little money together;
for ten or fifteen minutes stood around talk-
ing to some colored girls; was about a dance
that was going on for a little while; stopped
at an eating place; bought a sandwich and a
cold drink; drank a half pint, of whisky;
went to the place on Blanding street, where
he went to bed. Slept with a girl named “Sa-
die Bell” or “Carrie Bell,’ who was known
to him as “Little Bit.” Did not leave that
place until Sunday morning, and did not get
back to his own room until Sunday night. Op

s
-

ws

Ne: haope PEG”

£


Sot ti 8 Ee»

2996 8360«8. C.

Mr. Russell is also authority for the state-
ment that the wise and experienced jurist,
in his work, mentioned two remarkable cases
of malicious prosecution for the crime of rape
that had come within his own knowledge, and
referring to these, Lord Hale concluded his
remarks on the subject with these sugges-
tions: “I mention these instances, that we
may be the more cautious upon trials of of-
fences of this nature, wherein the court and
jury may, with so much ease, be imposed
upon without great care and vigilance; the
heinousness of the offence many times trans-
porting the Judge and jury with so much in-
dignation, that they are over hastily carried
to the conviction of the person accused there-
of, by the confident testimony, sometimes, of
malicious and false witnesses.” Ibid.

But the caution asked by Lord Hale was
addressed to trial judges and juries, who were
required to judge of the sufliciency of the
evidence, and to appellate judges, who, in his
day, in England, were charged with the duty:
of reviewing the evidence presented in a
cause, and who were given the power to set
aside the verdict of a jury, when they had
come to the conclusion that the verdict was
unjust, or was not supported by reasonable
and credible evidence. While we may prop-
erly suggest to trial judges and juries in this
state that they exercise, in cases of this char-
acter, the care and vigilance urged upon them
by Lord Hale, still we have not the great re-
viewing and reversing power intrusted to that
distinguished jurist and his associates in the
administration of justice—a power, if pos-
sessed, to be used with the utmost care.

if the charge made against the defendant
was “palpably the afterthought of the man
companion of the alleged victim,” if “‘the story
of the manner and method of the commission
of the act is not only too fanciful, chimerical,
fairy like, and contradictory not to raise a
reasonable doubt,” and was “contrary to
natural Jaws and the physical facts,” or if
the state failed in “disproving the alibi of
defendant,” the jury made a terrible mistake
when it concluded to believe the testimony of
the witnesses for the state, particularly that
of the prosecutrix and her companion. The
circumstances of the alleged crime, as reluted
by the prosecutrix and Mr. Sutton, are not
similar to any crime of that character com-
mitted in this state, or elsewhere, so far as

we are advised, but we must not be unmind-,

ful of the fact that, unfortunately, at this
time, there is raging throughout America a
tempest of crimes, some of them old in name,
but which are being committed with such new

177 SOUTH EASTERN REPORTER

boldness and daring as to not only bring
amazement to law-abiding citizens, but which
appear to challenge civilization itself. We
realize, too, that some people, especially white
South Carolinians, who have a horror at even
the thought of a white woman being subjected
to the embraces of a negro brute, will not ap-
prove, or even understand, the conduct of
Sutton in not resisting, even at the sacrifice of
his own life, the commission of the terrible
crime he swore he witnessed. Many will not
agree with the feeling he expressed, that life
is “the sweetest thing.” His conduct will be
explained to some only by his evident feeling
that his associations at the time and place
with the young woman were such as to bring
to him a personal embarrassment, and that
within his soul was that feeling of conscience
“that makes cowards of us all.”

But under our judicial system, ordained in
the Constitution of this state, the system
which our people, both of this state and of
the nation, have declared to be the one they
wish, the one representative of a free people,
it is impossible for us to hold that there was
no evidence to support the truth of the com-
mission of the crime charged against the de-
fendant. Moreover, we cannot say that the
verdict was not fully warranted, under the
evidence presented to the jury.

[8-13] The conduct of Sutton in failing to
fight, with his life, for the dearest possession
of the young woman, and his failure to report
promptly to the officers of the law the commis-
sion of the crime, were questions to be con-
sidered by the jury. The little variances be-
tween his testimony and that of the prosecu-
trix were matters for the jury. The failure
to call to the witness stand the interne at
the hospital who, the prosecutrix testified,
treated her after she had been ravished, was
something for the jury’s consideration. The
suggestion of appellant’s counsel that the
story told by Sutton and the prosecutrix to
the mother of the latter was for the purpose
of explaining the return at such a late hour
of the night of the girl and Sutton to the
mother’s home was for the jurors. The fact
that Sutton, without the assistance of the offi-
cers, discovered the first clue, the purchase by
some negro, unknown to him, of an automo-
bile, in the city of Columbia, on Monday fol-
lowing the night of the alleged crime, and
that this negro turned out to be the defend-
ant, was for the jury’s consideration. The
further fact that it was Sutton who made the
suggestion to the officers that the little’ tie
pin, which he claimed had been stolen from
him by the robber and rapist, might be found

STATE y. FLOYD 8. O.
177 8.E. 387

in the room of the defendant, was something
for the jury to think about.’ All these mat-
ters, and perhaps others, we may properly as-
sume, were called to the attention of the jury
in the arguments of counsel for the defend-
ant, Kven if some one of them was not men-
tioned to the jury, who can say that some one
of the twelve men, who tried the defendant,
did not think of it and call it to the attention
of his fellows?

We must not overlook, too, that the jury
had the sworn statement of the young white
woman as to the alleged crime. She was
corroborated in that story by Sutton, and
there were, if the facts testified to were true,
circumstances to support the testimony of
both these witnesses. The tie pin, claimed by
Sutton, found in the possession of the defend-
ant, if it was his pin and had been stolen
from him, was evidence to support the testi-
mony given by them. The long, black pistol,
found by the officer in the possession of the
defendant, corresponding to the pistol held
over her by her assailant, as testifitd to by
the prosecutrix, was corroborative of her
story. The possession of sufficient money to
pay the first installment on an automobile on
Monday, following the alleged crime, when
just before that, with the exception of the
$900 of Sutton’s money, which the defendant
claimed to have hidden away, the defendant
was without funds sufficient to pay his little
debt to the taxi man, was a circumstance
against the defendant as to his presence at
the sce:.e of the crime. The story of the de-
fendant as to Sutton’s associations with him
in the stealing of numerous automobiles, un-
supported by any other testimony, may have
been, evidently as the jury thought, an en-
tire concoction of falsehoods. The alibi claim
of the defendant had support from only one
witness, and she a woman of bad character.
That alibi was discredited, too, by the testi-
mony of the officers that the defendant, in
his first claim of alibi, had given them a place
Other than the one which he had testified to
as being the house in which he had slept.

[14] All the evidence, and the credibility
of the witnesses who gave it, were, under the
law, matters for the determination of the
jury, who were sworn to give the defendant a
fair and impartial trial, and who, it must be
assumed, since nothing in the record appears
to the contrary, were fully instructed by an
able and impartial judge, that the defend-
ant’s guilt had to be established by the state
beyond a reasonable doubt.

Some matters appearing in the printed
brief, submitted for the defendant, do not ap-

pear to have foundation of fact in the tran-
script of record, and for that reason, if we
should follow the usual custom of the court
and our rules, we would not refer to these,
but for the purpose of giving the defendant
all consideration, we go beyond what the
tules require us to do. It is said: “The ap-
pellant (defendant) was arrested two days
after the alleged crime and kept in jail with-
out the opportunity of communicating with
any one. Manifestly, it was impossible for
him to collude with anyone so as to uphold or
establish his alibi” The defendant, and none
of his witnesses, testified that he had been
denied any opportunity of communication
with his friends or witnesses, The very fact
that Sheriff Oswald, of Lexington county,
who had the custody of the defendant while
he was in the Lexington county jail, testified
in the defendant’s behalf, contradicting the
testimony of Sutton in a matter which may
have been of considerable importance, is sufli-
cient, we think, to show that the sheriff was
entirely fair to the defendant, and would have
permitted him any reasonable opportunity to
confer with his relatives, friends, counsel, and
witnesses. It does appear in the evidence,
too, that Mr. Milo Smith, one of the counsel
assigned by the court to represent the defend-
ant, before he was assigned, had visited, with
others, the defendant’ in jail. Surely, if Mr.
Smith was permitted to visit the defendant at
that time, Sheriff Oswald, who showed by his
conduct that he was absolutely fair to the
defendant, did permit him, if requested, to
have visits from those interested in his de-
fense. i
It is suggested, too, by counsel for the de-
fendant, that there has not been the proof re-
quired under the law as to the identity of the
defendant as the guilty party, even, so we
think he intends to say, if it be conceded that
the crime of rape was committed. Casting
aside entirely the identification made by Sut-
ton, the testimony of the prosecutrix alone, if
the jury believed it, as their verdict shows
they did, was entirely sufticient, under the
law, on that issue. Her testimony of her ex-
periences with the defendant for two hours
may be well remarked upon in the identical
language used by Mr. Justice Fraser, in af-
firming a judgment of conviction for assault
with intent to ravish, where the issue of the
identity of the accused was one of great
moment. In his characteristic way, that
Christian jurist said of the testimony of the
woman alleged to have been assaulted: “The
prosecutrix spoke without doubt, and well she
might speak with assurance, Her experience,
if such she had, was calculated to indelibly

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stamp the face of her assailant on her mind.
She was in a position to speak with assur-
ance.” State v. McNeal, 103 S. C. 197, 87 S.
E. 1004, 1005.

In the study of this case, we have not only
devoted much time in the examination of the
record, and consideration of the brief of the
defendant, but we have resorted to every one
of the decisions of this court that we have
been able to discover, and we think we have
found them all, in which were involved ques-
tions relating to the crime of rape, and its
kindred offenses, assault with intent to rav-
ish, and the having, and attempting to have,
carnal intercourse with a female under the
age of consent. This course we have pursued
for the purpose of aiding us in discovering
any error of law committed in the trial in
the lower court, which might have affected
any substantial right of the defendant, which
we should do under the rule announced in
State v. Hester, supra.

Of the seventeen cases, we find that judg-
ments against the accused in the lower courts
were affirmed in twelve. See State v. Le

‘Blane, 3 Brev. (5 S. C. L.) 389, Id., 1 Tread.

Const. (6 S. GC. L.) 354; State v. Haddon,
49 S. C. 308, 27 S. BE. 194; State v. Sudduth,
52 S. GC. 488, 30 S. E. 408;-State v. Cole-
man, 54 S. ©. 162, 31 S. E. 866; State v. John-
son, 84 S. C. 45, 65 S. BE. 1023; State v. Daw-
son, 88 S. ©. 225, 70 S. E. 721; State v. Me-
Neal, 103 S. C. 197, 87.S. BE. 1004; State v.
Pearson, 103 S. C. 481, 88 S. E. 255, 256;
State v. Butler, 114 S. C. 433, 103 S. E. 762;
State v. Green, 121 S. C. 230, 114 S. E. 317;
State vy. Boyd, 123 S. C. 24, 115 S. E. 809;
and State v. Wilson, 162 S. ©. 413, 161 S. E.
104, 81 A. L. R. 580.

[15] In the Le Blanc Case, decided in 1813,
the Constitutional Court, corresponding to
what is now the Supreme Court, affirmed the
judgment against the defendant, who had
been convicted of having carnal knowledge
of an infant girl, under the age of ten years.
The appellate court then had the power not
now given to this court to grant a new trial
if the verdict was clearly against the evi-
dence. See Hudson and Morrison v. Wil-
liamson, 3 Brey. (5 S. C. L.) 842; Id., 1 Tread.
Const. (6 S. C. L.) 360, the first case reported
after the Le Blanc Case, and decided at the
same term. In Le Blanc’s Case, practically
all the testimony against the accused, both
as to the crime and as to his identity, came
from a little girl, seven years of age. Against
that testimony, the defendant offered, in sup-
port of his vigorous denial, the testimony of
another witness who, it was claimed, was

177 SOUTH EASTERN REPORTER

present when the little girl visited the barber
shop of the accused at which place the crime
was said to have been committed. Mr. Jus-
tice Nott, with the concurrence of all the
Justices of the Constitutional Court, said:
“But finally, if the facts as proved are true,
the moral guilt of the defendant is sufficient-
ly established; and the jury having thought
it legally proved, I am not disposed to look
with eagle’s eyes, to see if I cannot, by some
legal subtlety, rescue him from the punish-
ment he so justly deserves.”

As the little tie pin, with its broken set,
may have played an important part in the
case against this defendant, so a small arti-
cle contributed much to the conviction of the
accused in the case of the State v. Green, su-
pra, where the judgment of the lower court
was upheld. A sleeve button, shown to have
been owned by Green, was found in the bed
on which a little girl, the victim of the al-
leged attempted rape, was sleeping.

While the crime of rape is usually commit-
ted, or attempted to be committed, when no
one other than the victim and her assailant
are present, in at least one case, reported in
our decisions, there was present a third per-
son when the assault was said to have tak-
en place. That happened in Staté v. Pear-

son, supra. The intending rapist attacked

the victim while another woman and she
were sleeping together in a bed; all the par-
ties were negroes. In affirming the judg-
ment of conviction, the able Mr. Justice
Gage, for this court, used certain language,
here quoted, which is singularly applicable
to this case: “This testimony made the bare
issue of who swore the truth, and that was
surely for a jury. of the vicinage. If the
state’s witnesses are to be believed, the
transaction was a shocking case of assault

with intent to ravish; and the full force of °

its realization is only arrested because of
the social status of the parties to it, the sup-
posed moral inferiority of their race, and
the terrible penalty the jury has put upon the
offender.” :

In five of the cases appealed to this court,
there were reversals of the convictions on
errors of law, committed by the respective
trial judges, and the cases were remanded
for new trials. See State v. Taylor, 57 S.°C.
488, 35 S. E. 729, 76 Am. St. Rep. 575; State
y. Johnson, 85 8. ©. 265, 67 S. E. 453; State
y. Sanders, 92 S. C. 427, 75 S. E. 702, 42 L.
R. A. (N. S.) 424; State v. Kelly, 114 8. C.
336, 108 8. E. 511; State v. Wallace, 122 s.
C. 520, 115 S. BE. 811. In all of these, the
court left the ultimate decision as to the
facts to the jury.

STATE v. FLOYD :
177 8.E. &.6. 389

In only two cases, those of Sanders and
Kelly, supra, did the court, in reversing the
convictions, direct verdicts of acquittal in
favor of the accused. It was held, properly,
in both cases, that when there was no evi-
dence to support the verdict, it was the duty
of the court to so declare, and to direct the
entry of a verdict of not guilty. The gist
of both of the decisions was that the assault
established by the evidence did not, under
the law, show an intention to commit rape.

[16] All of our decisions, touching the sub-
ject of the crime of rape, and offenses of a
similar character, as well as all of our deci-
sions in all of our criminal cases, handed
down since the adoption of our present Con-
stitution, as well as numerous decisions ren-
dered prior thereto, following the adoption
of the Constitution of 1868, are in complete
accord to the effect that when there is any
evidence, though it may appear to be aveak,
tending to show that the crime of rape has
been committed, and that the accused was
the offender, then there is but one duty of
the trial judge; that duty is to submit the
issues to the jury. Further, when it appears
to this court that there was any: evidence
tending to establish the affirmative of those
issues, and no error of law affecting any sub-
stantial right of the accused appears, then
it is the solemn duty of this court to affirm
the judgment.

After the preparation of the foregoing opin-
ion, following the usual custom of the court,
it ws submitted by the writer to the other
Justices. Mr. Justice BONHAM and Mr.
Acting Justice COTHRAN have submitted
dissenting opinions; their views, however,
are in accord. Because the other members
of this court, like the dissenting Justices, are
careful to guard every legal right of one sen-
tenced to death for crime, we have ‘again
gone carefully into the case, studying it in
connection with the views expressed in the
dissenting opinions. It seems to be admitted
therein that the objections raised to the af-
firmance of the judgment are quite techni-
cal. Our study of the record convinces us
that these objections are not only technical,
but they are without the least substantial
foundation.

All the matters urged for reversal of the
judgment relate entirely to the receipt of
testimony, to none of which any objection
was offered at the time it was received. .In
this court, although the counsel for the de-
fendant here has had extended experience in
representing, in this court and in the circuit
courts, defendants charged with serious of-
fenses, he has not regarded the errors com-

plained of in the dissenting opinions as be-
ing worthy of sufficient notice to be used as
the basis of an exception. Nevertheless, “in
favorem vite et libertatis,” we disregard any
failure of counsel for the defendant in the
circuit court, or his counsel in this court, to
take advantage of any legal error committéd
in the trial, and we turn our attention to the
matters presented, as reason for reversal, in
the dissenting opinions. Where we can, for
the sake of brevity, we group some of those
matters.

[17-19] The conversation Sutton had with
Mr. Dickson, prior to the alleged attack, as
Telated by both these witnesses, and the tes-
timony of the prosecutrix as to what Sutton
told her as to the trip he had to make when
they were leaving her home, are so closely
connected that they may be treated together.
All these conversations were merely explana-
tory of the purposes of the trip taken by Sut-
ton and the prosecutrix; they were merely
preliminary matters; none of them had any
bearing of the least importance on the one
main issue in the case, the guilt or innocence
of the defendant on the.charge of rape.

The reference in Sutton’s testimony to
what “a boy told him,” and the conversation,
it is said, Sutton told of having with “Mac,”
may, also, be considered together. This testi-
mony related to Sutton’s search for peace of-
ficers, after the commission of the alleged
crime. He testified that at a café, or lunch
stand, in New Brookland, he asked people
standing there the whereabouts of some offi-
cers ‘he knew, and was told by a boy that the
officers had gone. On cross-examination, he
said that the café was run by a fellow whom
he thought was named “Mac.” He did not
relate any conversation he had with “Mac.”
Of course, there could be no objection to tes-
timony on cross-examination, properly in re-
sponse to questions put to the witness. The
purpose of that cross-examination was to test
the truthfulness of the story related by Sut-
ton. The matter of the conversation with the
boy, like other matters before mentioned, was
simply a preliminary one.

Those particular matters were, as stated
by Mr. Chief Justice Simpson, in Blakely &
Copeland y. Frazier, 20 S. C. 144, which hold-
ing was approved in the State v. Petit, 144
S. C. 452, 142 S. E. 725, “a part of the his-
tory of the case.” Even if objection had been
made thereto, the substance, at least, of these
conversations would have been admissible.
The prosecutrix, Sutton, and Dickson only
testified as to preliminary matters, going to
show where the prosecutrix and Sutton were,

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Sunday morning, securing a taxi, he went to
the place where he and his wife were living,
and with his wife went out into the country.
He admitted that he had been connected in a
way with the stealing of some water hose in
Orangeburg, and that he had been sent to the
penitentiary for being connected with the
theft of a shotgun in Orangeburg. He served
in the penitentiary six months and nine days,
leaving that institution on March 6, 1932. He
had known Sutton around two or three years.
Knew him some before he went to the peni-
tentiary. The first ‘time he met him was
when Sutton, traveling in a truck, picked him
up, and had him go to the Atlantic Coast Line
freight depot to get a load of bed material
and mattresses, for which service Sutton had
paid him 35 cents. Sutton told him at the
time that if he would stick around, he could
help him to get a lot of extra money. He
said Sutton made him promise then not to
mention anything that ever happened, and
that he must keep women out of his head.
Two or three days after getting out of the
penitentiary, while on Hampton street, he
saw Sutton on the opposite side of the street
at the store of a white’man named “Jake.”
He approached Sutton with a request for
money, but was informed that he was not able
to hire him, and that he did not need any one,
but a little later Sutton gave him a quarter.
A few days later, he again saw Sutton on
Main street, who took him in his car, rode
him around, and talked to him. Then Sut-
ton gave him a $10 bill and a note, and direct-
ed him to take the money and the note to the
prosecutrix at a café in the city. He did not
know the lady then, but went to the place and
found her. He gave her the note and money,
but did not talk to her. Sutton, later in the
day, gave him a quarter for delivering the
note, Later, in July, he again took $15 to the
prosecutrix for Sutton, He did not know the
full name of the café, but knew a part of it,
and described it as containing stools and
chairs. From that time on, he and Sutton
were together often. Sutton, so his story
went, was engaged in the business of stealing
and selling stolen automobiles, At various
places in the city of Columbia, he would point
out an automobile to the defendant, who
would drive the ear out into the country at
night, and deliver it to some third person;
oftentimes Sutton was in and about the place
when the delivery was made. Two or three
other colored persons assisted him sometimes
in this traffic in automobiles, but he did not
know their names, and he did not know any
person to whom a car was delivered. Cars
were also stolen in the city of Rock Hill, Sut-

177 SOUTH EASTERN REPORTER

ton talked to him very freely from time to
time, always cautioning him never to tell any-
thing he knew, and never to admit that he
knew him. Ona couple of occasions, the pros-
ecutrix had-accompanied Sutton, in a car,
while making trips to deliver the stolen cars.
Upon one occasion, when a show was going on

at the Governor’s mansion, which, according ,

to the defendant, was a block from the Jeffer- |
son Hotel, which, of course, was not in accord
with the truth, Sutton took him to a grassy
place, sat down with him, and began to tell
him how he could make enough money for
both of them. He said he wanted to do that
the following Monday night, but he could not
go, because his daughter had something to do
over the radio, or she was going to sing over
the radio. Sutton told him, also, of a trip he
expected to make to Augusta, where he would
get a suitable Chevrolet for the defendant to
drive; that he wanted him to dress up like a
chauffeur, and he gave the defendant a dollar
to buy a chauffeur’s cap. The defendant,
however, did not buy the chauffeur’s cap. It
is not clear, but perhaps, $15 the defendant
was to take to the prosecutrix was also spent
by him for other purposes. Upon one occa-
sion, when he had delivered a stolen automo-
bile, the man to whom it was delivered gave
him a package for Sutton. The defendant,
examining the package, discovered that it
contained $900 in bills. He stated, also, that
be was in debt to Sutton for $35 in some other
transactions. On account of the money he
should have delivered to Sutton, he dodged
Sutton for several days, even moved from the
house where he formerly lived, so Sutton
eould not find him. Finally, Sutton did run
across him on the street, cursed him, jerked
him about, threatened to put him in jail for
spending his money, pulled his necktie off,
and took from him a pin, which Sutton
claimed was his. Sutton threatened to have
him put in jail if he did not pay the money.
He promised to make payment. For the pur-
pose of paying Sutton, he went to a place
where he knew some whisky was, stole the
whisky, got it into Columbia, and succeeded
in selling it, but he did not pay Sutton his
debt, The money he used for the purchase of
the Oldsmobile automobile, the Monday
morning after the alleged crime of rape had
been committed, was a part of the money he
had received from the sale of whisky that he
had stolen. Je did not know, or did not tell,
from whom the whisky was stolen, or to
whom it was sold. In his trips to and from
the place where the whisky was received, he
traveled with people, white and colored,
whose names he did not know. He and his

STATE vy. FLOYD 8.0. 385

171

wife had some trouble about anocher woman.
George Elmore, a taxi driver, was after him
about money due the taxi man for driving
him around. He gave Elmore $10, according
to the record, evidently a misprint for $1, al-
though Elmore claimed that the defendant
was due him $1.50, on Sunday or Monday aft-
er the alleged crime. After purchasing the
car, he went to Orangeburg Monday. Return-
ing that night, he was arrested by an officer,
who took from his car a loaded pistol and $11
or $12 in money. On the visits of Sutton to
him at the jails, Sutton would wink at him,
indicating that he was not to admit that he
knew Sutton, which was in pursuance to the
terms he had made’ with Sutton previously,
and with the understanding that if he got in-
to any trouble, Sutton would always take care
ef him. At the direction of Sutton, he had al-
60 stolen an electric drill from the stone steps
at Elmwood Cemetery in Columbia. He
turned the drill over to Sutton and another
man whom he.did not know, the two at the
time traveling in a Ford car. He denied posi-
tively the commission of the crimes charged
against him. He claimed ownership of the
tie pin, identified by Sutton as belonging to
him, which was taken from the defendant's
room. He purchased the pin for 15 cents, but
did not recall the place where he had bought
it. He had stolen but one automobile himself,
that of Mr. Cliff Langford of Orangeburg.
He did not know where it was, but Sutton
knew. The $900, which he was to deliver to
Sutton, were left by him in his room. He
would not pay the $35 he owed Sutton from
the $900, for fear that Sutton would discover
that he had the $900.

In the reply by the state, Officer Spires tes-
tified that on the night of his arrest, the de-
fendant told the officers that he spent the
night the crime was alleged to have -been
committed at 1605 Wayne street with his
wife’s aunt, which place was a little over a
block away from 614 Blanding street, where
the defendant, and his chief alibi witness,
Carrie Bell Camps, testified the defendant
had spent the night. Mr. Spires also testi-
tied that the defendant was asked, in the
presence of Mr. Sutton and the officers, if he
knew Sutton, and the reply was in the nega-
tive. That Mr. Sutton had had no opportuni-
ty at the time of saying anything privately to
the defendant. The witness also said that,
so far as he knew, the police department of
the city of Columbia, with which he had been
connected for sometime, had had no report
of the theft of an electric drill. Further, this
witness testified that he had known Mr, Sut-
ton for ten or eleven years, that he had nev-

177 S.E.— 25

8.E.

er known of Mr. Sutton being connected with
the stealing of any automobile, or any other
wrongdoing, and that his reputation for ve-
racity was good. Like testimony was given
by Officer Corley as to the statement of the
defendant as to spending the night at 1605
Wayne street, and as to the good reputation
of Sutton.

Carl Rodgers, proprietor of the café, in the
City of Columbia, where the prosecutrix had
been employed, testified that formerly she
had worked at the place for two years
straight, which employment terminated about
one year before the time of the trial; that
she had worked one week, from the 20th to
the 27th of June, 1933, and had not worked
for him at any other time. This witness al-
so testified that.there were no stools and no
chairs in his café, as had been testified to by
the defendant in his description of the place.
From Rodgers’ description, we judge that the
seats used by diners were of the bench type,
and built in.

Policeman Dreher, of Lexington, testified
that, accompanied by George Elmore, colored,
who appears to have been the taxi driver that
the defendant had transactions with, he visit-
ed the defendant in the Lexington jail; that
in reply to a question to the defendant if he
knew Sutton before the alleged crime, the de-
fendant replied he did not know Sutton, and
had never seen him before in his life. (In the
examination of Dreher by the Solicitor, the
latter referred to Elmore having been on the
witness stand in the case. The record does
not show that Elmore was a witness. From
questions asked of Sutton, however, it ap-
pears that lmore was in the court, and was
identified by Sutton.) Similar testimony to
that of Dreher, as to statements on the part
of the defendant, denying that he knew Sut-
ton, was given by Sutton’s brother, who also
had visited the defendant in the Lexington
jail. The brother said that the purpose of the
visit was to secure an admission from the de-
fendant that he did know Sutton.

After a very careful reading and thorough
consideration of the evidence, we are. re-
minded of the impressive observations of
Lord Hale, many years ago, in his discussion
of the law of rape, when he said: “It is true,
that rape is a most detestable crime, and
therefore ought severely and impartially to
be punished with death; but it must be re-
membered, that it is an accusation easily to
be made and hard to be proved, and harder
to. be defended by the party accused, though
never (ever?) so innocent.” Russell on
Crimes, *563.

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EVANS, Hugh and Willis & LEE, Hampton, whites, electrocuted SCSP (Richland),
February 7, 1941.

Hugh Evans, 22, his brother Willis, 20 and Hampton Lee, all white “Richland County
farm boys,” were electrocuted at the South Carolina State Prison on February 7, 1941. The
crime was rape and there was no appeal. There was nothing in the State for the day of
execution.-State, Columbia, SC, 2/8/1941.

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Caption under photographs of the three, Real Detective, January, 1941, page 94:
“Hampton Lee, Hugh Evans and Willis Evans were held on the charge of robbing and

abducting socialite, Mrs. Mary Ross Walker, near Columbia, $. C. She was taken to

lonely road, beaten and robbed of money and jewelry, then she was set free and allowed to

return home.”

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pe ret peer eene | of the unfortunate victim struck up.

’

AL ituved—Felawary nono, | onthe heart with a fearful, painful
Vibration—but when the devouring

oe Chuarety | AN VOT Eve the relief af t-aton. Linte @ Co.t clement seized uponhis body, all
was hushed—yet the crv of agony

C Snith, model learman UMemedrich af New York.
still thrilled inthe ear. and an ine

It wuntioue . Via 2 ersesote A hy "Re Semete and blouse of Re-

| Prrmrlarcormpthe Cited SPrtes of dmerwea wn

: S 1 Concrese qrwmbled Thad there he eehendrd voluntary and sympathetic shudder
Deven gut, tee Pde teem. Direte, mand Cerengeney, of nian ees _ .

bo thie iy sf New Foul terkneradtce Lackea | 2" through the ‘ rowd, : We hope
. rede vente sene dation. sevencente: and tes Chat this awful dispensation of jus-
SAR, BU sreerte Meratete ke. aloof New-York the sway tice may he attended with such sale

Of Lae thouend seven hantred and twenty. . : i ‘
fit hd ate tt! vn) arrel vs "y -4900@ Google ° the sad seVeo lary Hee ts as forever to preclude

fest sims having een paid hy the peesonens | the nevessity of its repetition,
atucr), ‘ Yoeewe gene d teetie Corea tog of New Veuk aor |:
Cheantate, the beopertations inta the United states afi sune |

]
\ ry r y? es bed s

R,Werrings ev ceppee Lotte s belts or bars. the same |! mus os dae rn feree - Peccniee

, + gat tiias Hales tes the pexenent abduties, pent! !—-.Vhe flowing incident

(,  Approved—Pebruary Is. Won Sane ! ives usa lively idea of the liberality

f JAMES MONROE. {which prevails in the state of Core

AN ACT forthe retief Matthew Barraw necticut, even at the present day,
' ie bee tenant: ly the Seats and Huuw of Rep- I. Mr. and M rs, Bartley, whose tale
I ree wtbives uf 1" AB es Saree aie ents have attracted very general ap.
© Comeree ee @cvoanl “Dhenad ehieeree ’ Cry N\iant- . ° .
| (umes avec? Loot here beyaetis Met probation, ian emplay ment, which
new indie Treasury ortie Cnited statecthe We should have thought at least ine
Pominvet three bnndred and nine dotirs and nocent, Viz. gxiving readings and 1.

i nineteen eents : whieh sam was expended oy atsati . Qlosaheearin-aeag. 3
fur cash, or the said Kerrow. in deferee of a prosecution citations fram Shake SPOake, tr pure
a

vtthe cuitot Steatom Pace. for property im.  SUAHEEe of public notice on the Pith

PRANTL

Tpressed by hia, dean for the servies ot the nsf. proceeded tou give such recitae
© Denotes =e . 4a » foe “en e* a: orgs ‘< ‘A ® ; .
! ee rates, during the late war woh Greut tions ina Coffee. House in Marttord.
reba, ° .
) | January 23, ISL0—Appreved, Alter the performances had closed
5 r ie e Tere VAN RAY aS) : ‘ oe


EPHRIAM AND SAM, Slaves, executed Edgefield District, S. Co, Jan. 28, 1820
(Hanging and Burning)

"EXECUTION, = On Friday last (January 28, 1820), two negro men, named Ephraim and

Sam, were executed, in conformity to their sentence, for the murder of their master,

Mr, Thomas Hancock, of Edgefield District, S. C. = Sam was burnt and Ephraim hung,

and his head severed from his body and publickly exposed, The circumstances attending
the crime for which these miserable beings have suffered, were of a nature so aggra=-
vated, as imperiously demended the terrible punishment which has been inflicted upon
them, The burning of malefactors is a pun ishment resorted to only when absolute
necessity demands a signal example, It must be a horrid and appalling sight to see

a human being consigned to the flames, <= Let emen Fancy picture the scene = the

pile - the stake = the victim <- and the mind sickens, and sinks under the oppression

of its own feelings - what then must be the dreadful reality? - From some of the spectators
we learn, that it was a scene which transfixed in breathless horror almost every

one who witnessed it. As the flames approached him, the piercing shrieks of the
unfortunate victim struck upon the heart with a fearful, painful vibration = but when the
devouring element seized upon his body, all was hushed,eyet the cry of agony s till
thrilled in the ear, and an involuntary and sumpathetic shudder ran through the

crowd. We hope that this awful dispensation of justice may be attended with

such salutary effects as forever to preclude the necessity of its repetition. -

AUGUSTA CHRONICLE, Feb, 1, 1820," COURIER, Charleston, SC, 2=7-1820 (2:2)


8 Oh eb ay sober: read ia Chake r
ous.ve an bey nnd Oerubers ced .a Clakshure. an

othe Co reth wowdays ot May and October, eny
law to the eonteary wots tinstanding

ad Sev 2 dat fe i further emuctad. That all
sme mm erste Which tmp have issued, Of may
Ra, Pereattcr is ce. tetunsb'e fathe meat sic.

feet. Senin ae beret: toe estate shed, shall
ANR Boek Le gett oh re niarte ete «march bom we kurcsered fen C'pevec
termes ta wtuch tacy ace severally changed
a, ri Gare Vey Rare weg
NY) Ay proved. PeVruann 19 IPO

BS tatsbepee iy JAMES MONROR.
-_ L Passe “tee ;

ay ror ae | | wwam &T enelh ine Ppotepeum 9 @ Qos espyly the

Sera

A ns i | Oe OR te SM OY Co
il Ce aa wh adir onde ‘ Bee taal: tog the >. nh Viet ak the teyanire
~~ , , tite Ne rth mond Sesatts ee are re ond the C'mgsd-

@¢ 9 ore,! @. #0) bee Bbstedeng tLe Brerettent = Mester aud

© teh oe Thee OE eee rem Bacemtives Meee

work is printed with a large and
handseme type, and on superfine
roval papers and issued at six cents
fur eight pages, payable of delivery,
The first vumber contains 8 octave
pages, and the succecding numbera
will contain 8 ar 16. ay occasion
may require, We have no doube

the work will present much valuae

ble information in relation to Ger.

man literature; and we wish the
editor cntize success, The follow.
ing isan extract from the first num-

bers

bie ot: Sgete eau fo Me 0 *fe oe d OG me oe ef Re. .

pete, Very one. Penemctnes 0 * § Bde Om lat @ of foes cera am

, ify. A | cote Pie q Go te PROD ahe* BA *e , , it | ( “ef the {erguae ot

NI Mery tary stapeg dy ote, this ole Barnerrnn © ace Utnee Myre gree a? ertrne

; ahs ORD gor Ge ole. Bete: rraplet ans t*ye cegmice of
OR ee eee ee Be een the meh cormntee wanes of the Co ageteld, 8 or
SS Dee Re cebenes thee Wee stefermt «Beene + mead the eewes
» Sees eo Eevee grew Dies certene othee: the fellow.

e Ooo eeptas bes ard She ce ie mee her ‘oye tu *peee
a M. T.Wo le ap gic preneten’ th ato: ome
C) uate bee the | rs coremgrle deme the Poymmre of the meth and

Ne ute me Otte tees Al Nee Caged the saan uf seventy -
cg tee om eet. Bue tiereacnen! choltare
jie stone Mee Gabcbing the Ivecitent’s haus. he cam
‘ote? fore gene orf thertoom th -ca0cm 0 cme Luteo wud eetenty
We @mlertaim. bree challar. vret voviy son enrnte

’ = | Pere crerte <P ie mee BP aceutive offices the
“ale. cree af: ioves theweud «nu Gitcee Crosiars and

: $2 SE wrents.ame «cote
er See 2 ote’ he Ff ghee eme-ted, That the
¢ 024d cove mal oars Vee peei Peet of ANY EM mers

bee the Der seerv met athernne apmupriated.
Approved, Febewary lee, Ute

Miherehandice, | " JAMES MONROE.

C \ieak up Gre EO 009 @ae———
Aithie Ose i RB AY SARS

Teven the Anca-ta (Geo ) Chronicle, Feb. 2.
RXECUTION,
“<a (| On Friday last tuo negra men,
I77.OR, romed Fphigim ard Som, were ex-

Beene

dofihe hank ccuted ite Cenlermity to their nen.

ds of Tail f- y

nudere aty le. {' tcvee, fe vr the minder of their mas.

hter Me. Thomas Harceck, of Edge.
urneymen te i field disteict, Seuth Carolins—Sam
eho urs wan burnt end Fphraim hug, and
vant It bis heed severed from tis bedy and

poblicly exposed, ‘Thecircumstan-
dutirsof the’) ces attending the crime fer which
rive the BIBL: hese miscribles lave suffered.were
Churlesg, | of a nature so agytavated, as impe-

me

em ee
-

ee @upe @— -+

Tallmadge’s apeech on slavery,
han been translated inte German,
by De. Brans and Schacfler's ser-
ton on the Reformation, and his
acconnt of the solemnization of the
third Centorial Jubilee in New
York. has been translated by Hart.
wig Bun Mundt Radowsky. ‘These
publications are accompanied by ine
truductory remarks of the learncd
translators, and have had an exten.
sive circalation in Gernany. Mach
curiosity has been excited there, on
the necessity of a speech Like that
of Me. Tallmadge, in a country
Which boasts of rational liberty,
aud declares all men to be born tree

, and equal, omen

of Rider !—We were amused at
the sight of a carricature on the
Maine and Missouri Billy shewn us
lately. Maine is represented asa
young Dandy of 21. with the Con.
stitution in his hand, walking fear.
lessiv over the steps ofthe Capital,

in pursuit of bie patrimony. Vir.

ricusly comended the tersible pun- |

ginia and other Slave States, aware
of his approach, and determined to
deprive him of his inheritance, had
atationed themselves at) the thresh.
holds at the moment ofbis entrance,
they placed a fat Negro Weich ae
atride his shoulders and tuppled
him tothe earth. New-Lfainpshire
appeared fastened on the victim, aa
- a Paroguet, picking hie even,
Portsmouth Oraciee


170 CHOTANKERS

Spring term criminal court, Gilson Foote and Samuel Monahan appeared to
plead “not guilty” to stealing the same wagon load of goods for which Thomas
Reed had been originally indicted in Charlston. The Court ordered that ‘said
Gilson Foote and Samuel Monahan be confined in the common Goal (jail).’’463

Gilson Foote posted a recognizance bond, gaining on May 22, 1816 the
signatures of Sheriff John Kennedy and Joseph Whann as joint security.
Joseph Whann had been a neighbor of Gilson Foote when he lived north of
Findley Ford near Walker’s Mill; Sheriff Kennedy and Foote had been long
time friends and business associates. On one occasion in his position as
Sheriff, Kennedy had asked Gilson to pick up several arrested slaves in a
nearby county and return them to Chester. The two men had undertaken
several joint business enterprises and frequently were the security for each
other when loans were negotiated.

It was Kennedy, having served as a deputy sheriff and jailer from 1807 to
1809, whom James McClintock refused to let take his duly elected office as
sheriff. When the incumbent Sheriff died, the governor appointed
McClintock to the unexpired term. When regular election time came,
Kennedy defeated McClintock; however, McClintock ignored the results,
claiming his term should run the full period of four years from the date of
appointment. McClintock kept Kennedy out of the jail at gun point, and
Kennedy had to go to Court in order to wrest the Sheriff's badge and the jail
keys from McClintock.*™

The last member of the immediate family to learn of Gilson’s plight and the
upcoming trial was George Foote, III, still living in North Carolina.4°5 George
had not prospered as well as most of his brothers and sisters, as he frequently
moved back and forth between Caswell and Rockingham Counties, North
Carolina in search of financial stability. Had he considered joining the rest of
his family in South Carolina, the news of Gilson’s indictment could only have
persuaded him that, if things were bad in North Carolina, they were many
times worse in South Carolina. So he followed what must have been his

4©3Court of General Sessions Minute Book, Spring Term, 1816, Chester County, South
Carolina.

44D J. McCord, Reports of Cases Determined in The Constitutional Court of South
Carolina, Volume I (Columbia: Daniel Faust, State Printer, 1822), p. 23.

465While some of George Foote, III's grandchildren would go to Kansas or remain in
Kentucky and Indiana, his grandson, George Kincheloe Foote, Il, son of William of
Harrison County, carried the Foote name back to the deep South after service in the
Union Army during the Civil War. Settling in Jackson, Tennessee, he became a Judge of
the Circuit Court and is said to have held other ‘advanced state positions of trust and
honor.” His brother, Robert Foote, lived in Memphis, Tennessee, where he died in
1884. For information on the children and grandchildren of George Foote, III see
Lewin Dwinell McPherson and Elizabeth Weir McPherson, Kincheloe, McPherson and
Related Families (Washington: Privately published by the authors, 1951.)

MOUNTAIN ISLAND MAN 171

original instinct--to join several other families who were moving to Harrison
County, Indiana. With him went his wife Lucretia and five children, two of
whom were George Kincheloe Foote, II, who would later settle in Henry
County, Kentucky and William who would make his home in Harrison
County with his father and mother, and there become a Methodist minister.

As George Foote, III, was taking his family to Indiana, Gilson Foote toyed
with the idea of leaving the Carolinas himself. But he was under bond to stay in
Chester County. Dr. Green Irvin, Gilson Foote, John Kennedy and a number
of other men congregated at Benjamin Hart's mill as they frequently did; the
indictment of Gilson did not keep John Kennedy from his company. Gilson’s
concern about the trial was apparent to the other men. And as he thought
about the likely outcome, he explored in his mind how he might handle
“skipping out’’ on the bond to be forfeited in such a case by his two securities.
Dr. Irvin stood only a few feet away as Gilson talked in muffled tones to
Kennedy. ‘‘Recollect what I told you,” said Gilson pointing to the West. He
continued, ‘‘There is the man and colt and the Boy George and Mountain
Island and if nothing else will do there is the woman and four or five children in
Georgia.’’46

By September 7, 1816, Gilson Foote had made his final decision--he would
tun away. The Fall term of court would start soon and he saw no way of beating
the charge. The Boy George could take care of his house on Mountain Island
while he was away. Packing saddlebags with all the cash he could lay his hands
on, extra clothing, and several slices of fatback, he moved down to Mountain
Island's Southern tip and, following the path that led away from his house,
forded the eastern stream of the Catawba, heading directly for the South side
of Dry Creek in Lancaster County. There lived the uncles of his deceased wife,
Micajah and Matthias Crenshaw.*®’ They were the sons of Micajah Crenshaw,
Sr., who had been born in Lunenburg County, Virginia. By 1760, Micajah, Sr.
was living in Granville County, North Carolina, and in 1786, he appeared in
the Waxhaws, South Carolina. By 1787, the elder Crenshaw had received a
grant of 202 acres on Dry Creek, where he built the home he and his family
occupied when Gilson called on them after leaving Mountain Island.

Gilson shocked Micajah and Matthias with the news that he was running
away; he could not face the penalty that would come with certain conviction.
But he assured them that he did not intend to leave Sheriff Kennedy and Joseph
Whann with the responsibility of making good the bond. To prove his

66Court of Equity Minutes, Chester County, South Carolina, (W.P.A. Transcript), p.
215:

*©7For a history of the Crenshaws see, Beatrice Doughtie, The Crenshaws and the Perrys
(Atlanta: Privately published by the author, 1966). A copy is in the Georgia
Department of Archives and History, Atlanta.


166 CHOTANKERS

Catawba site, making it equivalent to three other U.S. armories, Springfield,
West Point, and Harper’s Ferry.

Congress made plans for several buildings, ‘A brick building three stories
high, one hundred and seventy-five feet long,...to contain twenty thousand
muskets, artillery and carriages in proportion, together with all the light
appendages therefor, an arched brick magazine capable of holding two
thousand and one hundred barrels of powder; brick barracks; and workshop
for one hundred armories and for necessary guard.’’ General Henry Dearborn
laid the corner stone of the main building, and the fort, frequently known as
“The Establishment” by local residents, officially became Fort Dearborn.**!

When Gilson Foote bought Mountain Island from John Platt, United States
troops stationed at Fort Dearborn guarded the magazine from intruders. But
soon, at the sheriff's request, they would be on the look-out for Gilson Foote
himself, as their telescopes scanned the rocky cliffs of Mountain Island.

Ill

The Spring, 1815, term of Chester Court proved to be a disaster for the
Foote family. Thirty year old George W. Foote, the oldest son of the deceased
John Foote, Sr. and his deceased Loughridge wife, pleaded “‘inter a nole pro
signe” to the charge of beating a Negro. Immediately after, he left the state for
Alabama, not to return for several years.*>

Even worse in the eyes of the family, the Grand Jury under the foremanship
of Amos Tims*® returned a true bill in The State vs. Gilson Foote and Samuel
Monahan”. Thomas Reed, the neighbor of Benjamin Morris and Margaret
Mackey Morris, had been charged in Charleston with the disappearance of a

45!Most of the information on Fort Dearborn is taken from a letter written around
1880 to the News and Courier of Winnsboro, South Carolina by Dr. J.H. Carlisle of
Wofford College, and quoted in Ford, pp. 24-27, and ‘A Sketch of Mount Dearborn”
published in The Chester Reporter, November 6, 1873. This clipping has been preserved
in the Draper Manuscripts, 9VV, p. 364. According to D.G. Stinson, who wrote the
1873 article, Simon Beckham took possession of the public property at the Fort in
1815, selling some and shipping the remainder to forts in Charleston.

452Court of General Sessions Minute Book, Spring Term, 1815, Chester County, South
Carolina. In 1816, George Foote was living in Monroe County, Alabama. He returned
to Chester County in 1829 to testify in the Equity Court in Chancery suit filed by James
B. Glenn, son-in-law of Frances Foote Lyles and the executor of Newton Foote’s estate,
against William Foote over the ownership of certain slaves. At the time, George W.
Foote stated that he had been away from South Carolina for about ‘10 years” and only
recently returned to Chester County. Equity Court Minutes, June, 1829, Chester

County, South Carolina.

453Amos Tims married Mary Cabeen, the daughter of Thomas Cabeen who died in
Chester County, South Carolina in 1801. A few years after the indictment of Gilson
Foote, they moved to Alabama. See W.R. Hill, “Elizabeth Cabeen vs. Caroline
Gordon, and others, heirs-at-law of Mary Tims”, Reports of Cases in Chancery...Court of
Appeals of South Carolina, Volume I (Charleston: McCarter and Company, 1858), pp.

3945.

MOUNTAIN ISLAND MAN 167

wagon load of goods.‘5+ He implicated Gilson Foote and Samuel Monahan in
the matter, and the prosecutor brought charges in Chester County. But it was a
full year before the results of the charges in Charleston required action by
Chester authorities. During that year, things seem to drift along pretty
normally for Gilson. Not only was his Rocky Mount Fishery returning a
handsome annual profit, but he continued to trade land, stock, and other
goods with the residents of Union, Chester, Fairfield and Lancaster Counties.
During the year, Gilson Foote, Jr. passed his tenth birthday and Gilson, Sr.
must have showed up in Lancaster County on at least that occasion to bring
young Gilson back to Mountain Island for several days at the senior Gilson’s
small rustic house under the constant care of the ‘Boy George’, as Gilson
called his pre-teenage Black servant.

At times, such as on his tenth birthday, they could have visited William and
his family in the western section of Chester County, possibly traveling as far as
James’ house between Fairforest Creek and Tinker Creek on the road from
Black Rock to Unionville in Union County. Taking the journey to William’s
could have been a highlight of the times, the older Gilson and son spent in each
other’s company.

For a few years after his marriage to Nancy Rice McDaniel, William Foote
built a large two story stone house with rock from his own stone quarry near
Brushy Fork Creek. It is said that he brought in professional Irish stonemasons
to handle the construction of the structure, which featured wide porches, front
and rear, witha long, enclosed hall down the center and many windows, front
and rear. W.R. Cranford who saw the house about 1850 described the
interior:

The inside was particularly nice. Fireboards were all hand carved in figures
that may have suited the fancy of the most fastidious. The doors and stairsteps
were finished in alike manner. All were stained to imitate fine wood, or might
have been the genuine article.

4The District Court Records of Charleston, 1816-1823 are in the Duke University
Library, Durham, North Carolina. Thomas Reed bought land on Fishing Creek as early
as 1809. In 1818, Reed purchased 147 acres on Fishing Creek which had been surveyed
for William McCommon, August 5, 1786. McCommon also owned land known as
Walter Brown’s place just across Fishing Creek from the Gaston’s original home site.
See Deed Book O, Lancaster County, South Carolina, p. 290.

5W/.R. Cranford of Columbia, South Carolina wrote this description of the
William Foote house on July 1, 1927. He starts with these words: ‘My mind goesas I sit
and think of the time some 75 years ago, when I often rode behind my father, (F.
Cranford) as he went from place to place."’ The piece was published in a newspaper,
probably in Chester, and a clipping discovered by Josie Worthy Holman of Louisville,
Mississippi in an old scrapbook kept by a deceased cousin in Chester County. In
December, 1969, she sent a copy to Rupert Watson of Atmore, Alabama, who in turn
furnished a copy to this author.


168 CHOTANKERS

Across the road from the house stood William Foote’s tavern, a favorite
gathering place on Saturdays for the men of the neighborhood, during the
years Gilson and his son could have visited at William’s home. After a few
drinks the tavern crowd would seek diversion.*5® Cranford remembered how
his father described the frolic:

The road is straight and sand there, very suitable for foot or horse races,
which was (sic) indulged in. And then the throwing of...small cannon balls,
some weighing six pounds; and as the road was sandy they would stop where
they fell....457

Of course, the men would wager on who could throw the cannon balls the
greatest distance.

After all of the other games, came the fights. One of the crowd would take
off his coat and drag it in the road with the challenge, ‘Who dares set his foot
on it?”’ Naturally, when at least one taker always stepped forward, arrogantly
putting his foot down, fisticuffs began, only to end when an opponent,
probably with a bloodied nose or black eye, lay flat on his back.

Not all events at the tavern were frivolous; for starting around 1810 and
continuing for 15 or 20 years, the Legislature located the polling place for ‘the
western battalion” at William Foote’s.458 Prominent and responsible citizens
came each election day to cast their ballot and sit with William and Nancy
McDaniel Foote on the stone house porch across from the tavern and share the
news of the day.

And the “Stone House’ was famous around the area for its fine
accommodations for travelers and their mounts until it burned in 1855.59

By the time for 1815 visits of Gilson Foote and young Gilson at William’s
place, four of the five child to be born to William and Nancy had arrived. The
youngest, Harriet, was just a year old, but she had two older sisters, Emeline E.
and Amanda J.F. (Harriet Foote married Hiram G. Brawley, c 1838, and

456In July, 1799, William Foote was first granted permission to ‘Retail Spirituous
Liquors at the house of him and Thomas Means....”” Brent Holcomb and Elmer Parker,
Chester County, South Carolina: Minutes of the County Court, 1785-1799 (Easley, S.C.:
Southern Historical Press, 1979), p. 417.

457 .R. Cranford manuscript.

458For example, see Acts and Resolutions of the General Assembly of the State of South
Carolina (Columbia: D. And J.J. Faust, State Printers, 1810), p. 97; also(1811), p. 122;
and (1824), p. 125. Designations of polling for other years at William Foote’s can be
found in the annual volumes of South Carolina laws.

459\WW .R. Cranford must have exaggerated somewhat when he wrote that the stone
house ‘was known all over the Southland” for its hospitality. Martin Worthy lived in
the house in 1855 when it burned, leaving only the walls, which were dismantled and
hauled away for various uses. Josie Worthy Holman visited the area in 1962 and found
an old house on the site. The occupants took her to the rear and showed her several
slabs six or eight feet long and about eight to ten inches in thickness. These remaining
pieces of the stone house served the family as their back steps.

MOUNTAIN ISLAND MAN 169

lies in the Chester Cemetery where she was buried in 1901. Ina July 1, 1981
letter to Mrs. Hildred Stratton of Nashville, who kindly furnished a copy to
this author, Eloise Brawley Murray, of Albion, Michigan reported “they built
a lovely house at 145 York St., Chester, which stayed in the Brawley family
until 1923.” She goes on: My father, William Foote Brawley, last child of
James M. Brawley [the son of Hiram and Harriet] and Mary Harris Brawley
was born there December 23, 1892.’")*° The oldest boy, Hezekiah William,
three at the time, was much too young to be a regular playmate and pal for ten
year old Gilson Foote, Jr.*!

Also on what could only have been infrequent visits, Gilson Foote, Sr. and
young Gilson would have called on John Foote, who with his wife, Elizabeth
Hancock, lived a short distance from William on Wilson Creek, a branch of
the Broad River.*©? Young Gilson’s first cousin, John W., was 31 years old
already with a family of several children, having married Elizabeth, the
daughter of Robert Hancock, soon after ‘old man" George Foote’s death in
1808. In 1815, their children were Robert Hancock Foote, born about 1809;
Caroline Foote, born about 1811; and Artella Kincheloe, born September 7,
1813.

In spite of the indictment of Gilson Foote, Sr. and the legal problems
encountered by George W: Foote, William and John W. were enjoying new
found prominence. Their brother-in-law, Ephraim Lyles, had been recently
elected ordinary of Chester District. His four year commission from the
governor overshadowed the seemingly temporary damage the family may have
suffered from Gilson and George being on the wrong side of the law.

In spring, 1816, any feeling the Footes had that, like other family tragedies,
this too would pass, ruptured like the placenta of a newly born colt. For in the

‘After her marriage to James Moorman, Mary McDaniel, the stepdaughter of
William Foote, willed servants in 1829 to all of her hatf-brothers and sisters.
Therefore, the deed identifies the living children of William Foote and his wife. See
Deed Book X, Chester County, South Carolina, p. 273.

*\The fifth child of William and Nancy was David Thomas Means Foote, who died
in 1835 unmarried and without a will in Noxubee County, Mississippi where he had
moved with his brother, Hezekiah William Foote. Administration of the estate of D.
Thomas Means Foote in Union County, South Carolina was handled by his brother-in-
law, Dr. Wade Hopkins. Hezekiah William Foote’s biographical sketch appears in
Goodspeed’s Biographical and Historical Memoirs of Mississippi, (Chicago: Goodspeed
Publishing Company, 1891), pp. 748-50.

‘For proof that Elizabeth Foote was the daughter of Robert Hancock see the bill of
salé and release from John W. Foote and Elizabeth to General Wade Hampton. Deed
Book Y, Fairfield County, South Carolina, pp. 129 and 140. The other children of John
W. Foote and Elizabeth Hancock Foote were Lucy Ann, Amanda, Julius, Emiline, and
James M. This information from Rupert B. Watson of Atmore, Alabama. Mr. Watson
was a direct descendant of Artella Kincheloe Foote, who married Henry Watson. She
died August 16, 1896 in Wilcox County, Alabama.


172 CHOTANKERS

sincerity he would make the two men, he said, “safe of the bond and
everything else.’’*8 ‘‘How?”, they would have asked.

So in the presence of the Crenshaw brothers, Gilson made a deed to John
Kennedy for Mountain Island, requesting Micajah and Matthias “prove” the
deed before the county magistrate, if asked to do so. He doubtless said
goodbye to his son Gilson, Jr., who would have been summoned, assuring him
that his absence would be temporary--only until they could work out his court
thing.

Then folding up the deed, Gilson Foote dropped it into saddle bags, said a
final goodbye, mounted his horse and rode West to be a fugitive until his
death.

*8Court of Equity Minutes

CHAPTER TWELVE

ESCAPE TO NEW ORLEANS

Somewhere west of the Catawba, likely after he crossed the Savannah River
into Georgia, Gilson Foote stopped to write and post a letter to Sheriff John
Kennedy, enclosing the deed he had drawn up at the Crenshaws’. He wrote:

Major,

I send you Platt’s note and the writing I took to encumber the little negro he
got. You wonder and you may well wonder [that] 1 am alive yet [ you] thought
I did not intend any longer to fulfill that duty I was indebted to you. It is a hard
thing to do. How it will be, [know not. I have nothing to make life desirable. I
had.as leave be killed as not.

Mrs. Platt has not signed her right of Dower yet. The reason was she was too
young.

These people that are witnesses to the deed will prove it. Pray give them a
good chance in fitching as they are the best amongest them but one. This they
are doing for me, I take as a great favor to me.

Good Bye, I wish you well. I had a notice of making way with myself in
September last. Then it was I made you a title to Mountain Island, signed
them and kept them in my possession. If this does not make you honorable
amends I am divested of the means of doing so, since all is gone. If it should
not be sufficient, if 1 do not destroy myself, which I hope I may not, I will see
you again and satisfied you shall be. But to be cropped or branded, pillined or
a longimprisonment, either is worse than death. And I am sure you had rather
1 would do as I have done than such shameful punishment.

I remain Sir what you please to call me.

Gilson Foote*®?

As Gilson ran from justice the Court dealt harshly with him in his absence. If
there had been any doubt that he had played the major part in the
disappearance of Reed’s goods, his friends and relatives must now have
accepted the truth of the charges. And if friends and relatives were convinced

*©°Court of Equity Minutes. Minor changes in the letter, primarily in spelling and
punctuation, have been made to improve its readability.

173


7 , EY KiWs, Micha Eugen, Lite , dagealom

Interstate 95 killer executed in South
Carolina

Associated Press, 06/13/97

COLUMBIA, S.C. (AP) - A man who stabbed a woman eight times
after she stopped along Interstate 95 to help him fix a car was executed
early Friday.

Michael Eugene Elkins, shunning last-minute appeals, was killed by
injection at 12:58 a.m., just two days short of his 42nd birthday.

He was convicted of robbing and killing Patricia Whitt, 59, of Largo,
Fla., on July 9, 1990, after she stopped to help him and another man
who feigned car trouble along the interstate near the Georgia border.

Mrs. Whitt met Elkins and Ralph Garner earlier that night when they
helped to fix her car, which had overheated on the interstate. She gave
them $10 for helping.

Elkins was arrested days later after his girlfriend turned him in. He had
given her three of Mrs. Whitt's rings. Garner, who was acquitted of
murder, testified against Elkins.

The condemned inmate waived his court appeals. His lawyer, Kevin
Bell, said the once slightly built Elkins had swollen from spleen and liver

problems and was uncomfortable in prison.

_ His life would have been cut short anyway," Bell said.

ELKINS, Michael Eugene, white, injection SCSP (Jasper C0.), June 13, 1997.

“Columbia, S. C. (AP) - A man who stabbed a woman eight times after she stopped along
Interstate 95 to help him fix a car was executed early Friday. Michael Eugene Elkins, shunning
last-minute appeals, was killed by injection at 12:58 a.m., just two days shot of his 42nd birthday.

“He was convicted of robbing and killing Patricia Whitt, 59, of Largo, Florida, on July
9, 1990, after she stopped to help him and another man who feigned car trouble along the inter-
state near the Georgia border. Mrs. Whitt met Elkins and Ralpoh Garner earlier that night when
they helped to fix her car, which had overheated on the interstate. She gave them $10 for helping.

“Elkins was arrested days later after his girlfriend turned him in. He had given her three of
Mrs. Whitt’s rings. Garner, who was acquittesd of murder, testified against Elkins.

“The condemned waived his court appeals. His lawyer, Kevin Bell, said the once slightly
built Elkins had swollen from spleen and liver problems and was uncomfortable in prison. ‘His
life would have been cut short anyway.’ Bell said.”-Associated Press, 6/13/1997 (from the
Internet).


NAME: ELKINS, MICHAEL EUGENE DATE OF EXEC.: 1997/06/13 NUMBER: 394
g% YofE: 97 DR #€: 4797 METHOD: INJECTION TIME: 0058

SOC. CLASS: ECO. CLASS: EXECUTION SET : 97/06/13 NO...¢

RACE: W SEX: M TO-DR: 06.2 T-C: 06.9 AGE AT EXEC.: DOB: 55/06/15

STATE: SC CO: JASPER CITY: I-95

HOR: GATES, NC BOOK/MOVIE:

Hs L: 3 C: 3 E: 3 SPECIAL LIST:

DATE OF CRIME: 1990/07/06 AGE AT CRIME: 35 CATEGORY: LEO:

DATE OF SENT.: 1991/03/30 WEAPON: STABBED

CRIME: MURDER-ROBBERY NO. KILLED: 1 TOTAL KILLED:

VICT. CODE: WF59
CMTS#1: PATRICIA N. WHITT (59), traveler stopped on I-95 (from Florida), stabbed
8 times in neck & throat, robbed
--caught in Dallas TX w/ woman he kid.

KNOWN PREVIOUS CONVICTIONS: BURGLARY; ARM. ROBBERY (ON PAROLE) [90/06/25]

ACCOMPLICE: GARNER, Ralph [n.g. -hitchhiker] FIRST ENTER:
CMTS#2: --APPEALS: -GAVE UP ALL APPEALS AFTER STATE APPEALS COMPLETED

**** CRITICAL SPLEEN & LIVER PROBLEMS AT TIME OF EXECUTION ****
--Hard time finding vein because of swelling, used neck

EVIDENCE: gave WHITT’s rings to his girlfriend who turned them over to
the police
~confessed

LAST WORDS: "I withdrew my appeals out of sorrow and respect for Mrs. Whitt and
her family. My life for hers is a poor trade but it’s all I could offer. The
person that was convicted six years ago for her dead {sic} has been gone. Now

I’m going to be with my savior. He has touched my heart and set free my
soul."

LAST MEAL: fried shrimp, clam chowder, roast beef sandwich, iced tea

HUMOR-STRANGE: “His life was the only thing to trade. I am sorry he didn’t have
a better life. I am sorry this was the high point of his life." comments
afterward by victim’s son Miles Whitt {also see comments}

SOURCE: SC DOC; TAMPA TRIB.; AP-UPI-REUTERS IQ LEVEL:
CMTS#3: WITNESSES: -VICTIM’S FAMILY: Miles Whitt (son) cried as execution took

place held up sign: “Mike, this was needless. She would
have given you anything you needed."

EDINBURGH, Slave, 17 or 18, hanged Charleston, SC, on March 20, 1826,

"TRIAL FOR ARSON, = The Negro Boy EDINBURGH, belonging to a lady of this city, and

who was in the employment of the Rev. Arthur Buist, at the time his premises were

set on fire, on the 26th ult., was yesterday put upon his trial for the same, before

a Court of fagistrates and Freeholders; when his own confessions, corrobabated mix by cir-
cumstances, rendered his guilt so manifest, that the Court, without hesitation,

found a verdict against him, He was sentenced to be hung on Monday the 20th inst.

between the hours of 12 and 1 o'clock,"

COURIER, Charleston, SC, March 7, 1826 (2:h.)

"It appears that the fire on Sunday night did not commence in the Carpenter's shop
of Mr. Schwerlie as at first supposed, but in a small stable on the lot immediately
to the west of it, and nearly adjoining."

COURIER, C,arleston, SC, February 28, 1826 (2:3)

"FIRE AGAIN! = Our citizens were again alarmed by the cry of fire, between the hours

of 12 and 1 o'clock this morning, It originated in a carpenter's shop in the rear of the
Academy of Fine Arts, The air was still and ho damage was sustained except to the

shop, which was entirely destroyed, It is supposed to be the work of an incendiary." THE
COURIER, Charleston, South Carolina, February 27, 1826 (2:2.)

oe

3768. C.

17. Rape €=38(1)

In rape prosecution, admitting prosecu-
trix’ testimony that when leaving home in
automobile of male companion, who was a
salesman, she consented to his suggestion
that they visit third person on business mat-
ter, and salesman’s testimony that such third
person informed him of prospective customer,
from whose. home they were returning when
alleged crime occurred, held not error; such
testimony involving merely preliminary mat-
ters. :

18. Rape €>38(1)

In rape prosecution, admitting testimony
of prosecutrix’ male companion that, when
seeking officers, he stopped at restaurant and
was told that officers had gone, and his testi-
mony regarding restaurant proprietor’s name,
held not error.

19. Criminal law €=338(3)
Evidence otherwise inadmissible may be
admitted as preliminary to relevant inquiry.

20. Criminal law €>1169(2)

In rape prosecution, error, if any, in ad-
mitting testimony of prosecutrix’ male com-
panion as to officers’ inquiries concerning
stick pin allegedly stolen from him held harm-
less.

21, Criminal law C=1169(1)

In rape prosecution, testimony elicited on
cross-examination of prosecutrix’ companion
held not ground for reversal.

22. Rape €=48(1)

In rape prosecution, testimony of prose-
cutrix’ mother that prosecutrix on returning
home told mother of robbery and rape held ad-
missible.

23. Criminal law G=1169(3)

In rape prosecution, error, if any, in ad-
mitting officer’s testimony regarding informa-
tion obtained from others, held harmless to
defendant who admitted truth of such infor-
mation.

24. Rape €=45

In rape prosecution, testimony of broth-
er of prosecutrix’ male companion at time of
rape, elicited on cross-examination, that third
person, in defendant’s presence, asked wit-
ness’ brother if brother could identify defend-
ant and that brother did identify defendant
in group of eight prisoners, held admissible.

25. Criminal law C>1168(4)

If judge in capital case strikes out hear-
say evidence admitted without objection or
instructs jury to disregard it, and some part
thereof may have been beneficial to defend-
ant, reversal is required.

177 SOUTH EASTERN REPORTER

BONHAM, J., W. C. COTHRAN, A. A.
J. and C. J. RAMAGE and PHILIP H.
STOLL, Circuit Judges, dissenting.

—o—_—_.

Appeal from General Sessions Circuit
Court of Lexington County; Wm. H. Grim-
ball, Judge.

Clarence Floyd was convicted of rape, and
he appeals.

Affirmed.

N. J. Frederick, of Columbia, for appellant.

T. C. Callison, Sol., of Lexington, for the
State.

BLEASE, Chief Justice.

From his conviction and sentence to death
on a charge of rape, in the court of general
sessions for Lexington county, the defendant.
Clarence Floyd, has appealed to this court.

{!] The crime charged against the appel-
lant, who, in this opinion, will be referred to
as the defendant, was alleged to have been
committed in Lexington county on the night
of Saturday, August 5, 1933. He was arrest-
ed the following Monday night, August 7th.
A true bill was returned by the grand jury
on September 11th, and the defendant was
arraigned on that day. That procedure has
long been in vogue in this state. The courts
of general sessions, where criminal cases of
serious character are tried, convene in the
counties of our state, generally, but three
times in each year. Being without counsel,
the presiding judge, Honorable William H.
Grimball, appointed four members of the Lex-
ington Bar, McKendree Barre, Esq., Milo
Smith, Esq., and Messrs. Hall & Hall, all of
whom are highly regarded, to represent him.
A defendant charged with a capital offense in
this state for many years has been, and is
now, entitled to three days after arraignment,
if he demands it, before his trial is entered
upon. We assume the proper demand was
made in this case, for the trial was not begun
until September 14th. It was concluded the
following day.

Within the time required by the statute,
notice of intention to appeal on the part of
the defendant was given by N. J. Frederick,
Esq., of the Columbia Bar, who was not of
counsel in the trial court, and that attorney
has represented the cause of the defendant in
this court. For some reason, not explained
to the court, there seems to have been consid-
erable delay in docketing the case for hear-
ing here. Apparently, the Solicitor, legal rep-

€=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

STATE vy. FLOYD 8.0. 377
177 S.E. $

resentative of the state, has not insisted that
the defendant and his counsel comply strict-
ly with the rules of the court. Evidently, too,
the Solicitor, in the matter of the appeal,
has been exceedingly fair to the defendant.
That officer stated at the bar of the court that
he had once considered the making of a mo-
tion in the court, under the rules, to dismiss
the appeal, on the ground that it was frivol-
ous and without merit, but, upon reflection,
since the result to the defendant was so very
grave, he had concluded not to make that mo-
tion, preferring for the court to give full hear-
ing to the appeal. :

The transcript of record contains only the
exceptions and the testimony in full at the
trial. There were seven witnesses in chief
for the state. The defendant testified, and
presented five witnesses in his defense. Ev-
ery witness desired by the defendant to tes-
tify in his behalf, evidently, was present at
the trial and did testify. There is not the
least suggestic 1 in the record, and none has
been made in the argument in behalf of the
defendant in this court, that there was a fail-
ure to have in the trial court any witness
whom the defendant thought might give tes-
timony beneficial to him. The state offered
five witnesses in reply, one of whom, however,
had testified in chief. The examination of
the witnesses on the part of the state was
conducted by the Solicitor. The examination
of the witnesses in behalf of the defendant
was conducted by Mr. Barre and Mr. Hall.
The cross-examination of the state’s witness-
es by these gentlemen seems to us to have
been quite thorough. We have especially not-
ed that the cross-examination of the prose-
cutrix and her male companion, to whose tes-
timony we hereafter refer very fully, on the
part of Mr. Barre, a lawyer of considerable
experience, and who is aggressive, was quite
vigorous. Evidently, this attorney had some
doubt as to the truthfulness of the testimony
of these witnesses, and he did not hesitate to
let them, «specially Sutton, recognize the
doubts he had.

It is to be noted that the exceptions make
no complaint of error in the admission or re-
jection of evidence, or that there was any er-
roneous instruction to the jury on the law.
There is not anywhere the slightest intima-
tion that the presiding judge was other than
entirely fair to the defendant. To us the
record indicates that he was very careful to
safeguard every right of the accused. There
is no suggestion that any member of the trial
jury was prejudiced against the defendant;
and there is no charge that the jury, as a

177 S.E.—24%

whole, was not composed of competent per-
sons, drawn, summoned, and impaneled in a
legal manner. Neither is it charged, as often
has been done in cases of this character, that
the defendant was unduly hurried to trial, or
that he was tried in a hostile atmosphere.
There is not any intimation anywhere that
the venue of the case should have been chang-
ed from Lexington county, where the alleged
crime occurred, and where the trial was had.
It is not hinted in the record that the accused
was denied the right of counsel in the broad-
est and most liberal interpretation of that
guaranty to him, both under the Federal and
State Constitutions. We are bound to as-
sume, therefore, that in all respects the trial
of the case was conducted in a thoroughly le-
gal and orderly manner, and that no constitu-
tional right of the defendant, state or fed-
eral, was violated.

The four exceptions refer mainly to the
facts, as adduced in the evidence, and are as
follows: *

1. “There is no evidence to convict defend-
ant on the charge of rape.”

2. “The charge of rape is too palpably the
after thought of the man companion of the
alleged victim, for reasons best known to
himself, to support a verdict and sentence of
death.”

3. “The story of the manner and method of
the commission of the act is not only too fanc-
iful, chimerical, fairy like, and contradictory
not to raise a reasonable doubt, but is con-
trary to natural laws and the physical facts.”

4. “The burden of disproving the alibi of
defendant was on the State, and this it has
failed to do.”

[2] The exceptions present only two legal
propositions. One of those, referred to in the
fourth exception, that the state has the bur-
den of disproving the defense of alibi, is,
perhaps, a little inaptly stated in the excep-
tion, but it is in practical accord with the
present rule, adhered to in this state, as to
the effect of that defense. This court, in the
case of State v. McGhee, 137 S. C. 256, 135 S.
E. 59, for the first time expressly declared
that an alibi was not an affirmative defense,
as it had been theretofore long held. In the
McGhee Case, the opinion of Mr. Justice
Cothran in State v. Deschamps, 134 S. C.
179, 131 S. E. 420, on the matter of alibi, was
adopted, and since the decision in the McGhee
Case, the holding there has been followed.
The true rule then, quoting from the opinion
of Mr. Justice Cothran, is stated in this lan-
guage: “* * * the so-called ‘affirmative

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374 «8.0.

conclude that the employees were by the or-
der of the Chief Justice so designated that
they could properly prove their claims in this
action.

There is still another reason why this
should be allowed. The attorney for Metcaif
objected to the order of reference only on the
ground that the Supreme Court and not the
circuit court had jurisdiction to grant the
same. He did not take the position then that
no order of reference could be granted in any
event because the employees were not proper
parties, but he simply stated that the power
was in the Supreme Court and not in the cir-
cuit court. Even at the hearing of the mat-
ter before the master he took no position
then that the matter was not triable in the
case then pending and by the procedure then
and there invoked.

[2, 3] 2. Were the claims properly and le-
gally established?

In a suit upon a contract:for services the
claimant is. requited to allege the breach of
the contract and the damage flowing there-
from. If the party against whom the claim
is made desires to show that the claimant
could have minimized his damages, this has
to be pleaded and proven, and it is not in-
cumbent upon the claimant to establish this
unless such plea is interposed. Latimer v.
York Cotton Mills, 66 S. C. 185, 44 S. E. 559.

.Metealf had a perfect right to show in
the reference by proof that these employees
had not minimized their damage, and the mas-
ter could have taken those facts into ‘consid-
eration, but this Metcalf did not do. There-
fore, the proof of the employees as to the
amount of the damage suffered stood unchal-
lenged and uncontradicted. The method of
proof was, first, by the employee himself, and,
second, by the books of the Lumber Company.
To demand more proof than this would be
unreasonable and perhaps impossible. The
damages were not speculative nor remote for
the number of days worked by the employees,
and the number of days during which the
employees were idle was a mere matter of
mathematical calculation, and whatever is
susceptible of such exact demonstration is not
speculative. Some sophistic minds deny that
two and two make four, but the mere fact
that these finespun theorists deny the exist-
ence of fundamental truths cannot remove the
fact that the truth does exist, and for this
court to hold that damages which can be as-
certained by simply multiplying the number
of hours out of work by the rate per hour
are speculative would be finespun reasoning
ngainst the laws of logic. We, therefore, con-

eee

177 SOUTH EASTERN REPORTER

clude that in’ this proceeding the claimants
had a right to establish their claims and fur-
ther that the method of establishing the same
was sufficiently definite and certain to satis-
fy all reasonable rules of evidence.

[4] 8. Can judgment be given for $7,633.11
in this proceeding when the amount of the
bond required was only $3,000?

The sole right of the employees to come in-
to this action is given under the order of
Chief Justice Blease. Without that order
they are in no wise connected with the liti-
gation between Metcalf and the Lumber Com-
pany. Without that order they are not, par-
ties to the litigation and have no rights of
any kind in the litigation, and whatever
rights they may have arise from the terms of
that order and are also expressly limited
by the terms of that order. The master has
no right, nor has this court the right, to en-
large the penalty therein required, and the
bond being for $3,000, the judgment of $7,-
633.11 cannot possibly be rendered against
the plaintiff Metcalf in this action. The pro-
portionate part that each employee would be
entitled to under the $3,000 bond with refer-
ence to his entire claim is also a matter of
mathematical calculation. Each employee
would be entitled in a proportion to this ef-
fect, $7,633.11 is to the amount of the proven
claim of the employee as $3,000 is to the
amount the employee will get. The applica-
tion of this simple example of proportion is
not a difficult task, but it will have to be
done by some one, and this court has not
the information in the record nor the desire
to do that, but the master no doubt or an ex-
pert accountant could determine this example
in proportion in a short period of time.

That is the justice of the cause and this is
a cause in equity. It is not right to make
each individual laborer sue Metcalf or the
bond in his own name. That would create
a multiplicity of suits and be so expensive
that the laborers who most need the protec-
tion would secure it in the least. Those
whose wages are small and who do not make
enough to save for the hard times could not
pay the costs for litigation and thereby would
be eliminated from the benefits of the bond
given to protect them. Those whose claims
were large would pursue the matter no doubt
and secure the benefit of the bond. The law
is made to protect the weak and oppressed
and to reach down its mighty arm and lift
up those who are in need of its assistance.
It is made to curb the strong and the mighty
and to force them to treat those not so fortu-
nate with justice and equity. When the law

STATE v. FLOYD S.C.
177 8.E. * : 875

fails in these functions, it ceases to be law
and is a mockery. ‘fo hold that the order of
the Chief Justice meant anything else would
destroy the force and effect of that order and
make his effort to protect the employees be
but a sham.

The law is found just in its ministrations,
and he who is required to and does comply
with the terms thereof is entitled to. know to
what extent he will be penalized in the ac-
tion if his effort fails, and this amount was
set forth in the order of the Chief Justice.
Metcalf, the plaintiff, had a perfect right to
know that in this proceeding he could not be
penalized more than the amount of $3,000.
To hold otherwise would be to deny him the
protection of the order which the Chief Jus-
tice passed. £

It is, therefore, ordered that the order of
Judge Grimball be reversed and that the case

’ be remanded to C. W. Muldrow, Esq., special

referee, for the purpose of ascertaining and
determining the proportionate amount due to
each employee in accordance with the views
expressed in this opinion, and let the costs
of this action fall upon the plaintiff Metcalf.

STABLER, CARTER, and BONHAM, JJ.,
concur,

CD

STATE v. FLOYD.
No. 13951.

Supreme Court of South Carolina.
Nov. 27, 1934.

1. Criminal law €=577

After arraignment in capital case, de-
fendant is entitled to three days, if demand-
ed, before trial.

2. Criminal law €=333

State has, in effect, burden of disproving
alibi,

3. Criminal law €>1054(3)

Exception that there is no evidence to
sustain conviction generally involves legal
question, and hence raises such question on
Appeal.

4. Criminal law €=1054(3)

In rape prosecution, exceptions that
charge of rape was afterthought and that
Story of manner of committing act was fanci-

ful raise no legal question and may be sum-
marily dismissed.

5. Criminal law G=1165(2)
On appeal in capital case, Supreme Court
disregards technical rules (Const. art. 5, § 4).

6. Criminal law €=1159(1)

Rape prosecution is “law case” within
Constitution governing Supreme Court’s re-
viewing power (Const. art. 5, § 4).

(Ed. Note—For other definitions of
“Case at Law,” see Words & Phrases.]

7. Criminal law €=572
Evidence sustained conviction of rape as
against alibi defense.

8. Rape ©=57(1)

Failure of prosecutrix’ male companion
to attempt to prévent rape, and his failure
to report rape promptly, held for jury in rape
prosecution.

9. Criminal law €=742(1)

Variances between testimony of prosecu-
trix and her companion held for jury in rape
prosecution.

10. Criminal law €=745

Failure to call as witness hospital in-
terne who treated prosecutrix held for jury in
rape prosecution.

(1. Criminal law €=742(1)

Where prosecutrix had accompanied mar-
ried man on automobile ride, question wheth-
er story of rape by negro as told to prosecu-
trix’ mother was for purpose of explaining
prosecutrix’ return late at night held for jury
in rape prosecution. :

12. Rape €=57(1)

That prosecutrix’ male companion at
time of alleged rape subsequently discovered
first clue held for jury in rape prosecution.

13. Rape =57(1)

That prosecutrix’ male companion at
time of alleged robbery and rape suggested to
officers that stick pin allegedly stolen might
be found in defendant’s room held for jury in
rape prosecution.

14. Criminal law €=742(1)

Where evidence in rape prosecution was
conflicting, witnesses’ credibility was for ju-
ry.

15. Criminal law €1159(2)

Supreme Court cannot grant new trial
merely because verdict is against evidence
(Const. art. 5, § 4).

16. Rape €=57(1)

Where there is any evidence that defend-
ant committed rape charged, judge must sub-
mit issues to jury.

€=—For other cases see same topic and KEY NUMBER in all Key Number Digests und Indexes

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them. He looked at her watch, and asked
her what kind it was. She told him that it
was only a cheap watch, which a friend had
given her, and there was no need of the negro
taking that. He looked at a ring she wore,
and remarked that it was a cheap one. The
negro then told the prosecutrix to lay down.
The ground was not very rough. The negro
“just laid her down in the sand bed.” He
caught her by the arm and said, “Get down.”
The prosecutrix, according to Sutton, “held
her nerve, and did what he told her.” At the
time, the negro was facing Sutton. The back
of the prosecutrix was toward Sutton. The
negro proceeded to have sexual intercourse
with the prosecutrix. All the time he had
his gun pointed at Sutton. If Sutton ap-
peared to be moving, the negro would raise
up from the position he occupied and flash
the pistol at Sutton. Sutton saw an iron
pipe, evidently a stake for a grazing cow.
He backed himself up to that stake, and
while the negro was still in the act of com-
mitting the crime on the prosecutrix, Sutton
was working with the pipe to see if he could
get it out. He had made up his mind, he
said, that the negro was going to have to
kill him. When he succeeded in getting the
pipe almost out of the ground the negro ob-
served what he was doing. The negro came
over to him and said, “What in the h. are
you doing?’ The negro saw that Sutton
almost had the pipe out of the ground, and
ran Sutton away from it. He said to Sut-
ton, “That is a nice piece of iron and you are
liable to hurt me with it.” The negro took
the piece of iron pipe and stuck it under his
arm, all the time holding his pistol. The
negro then got Sutton and the prosecutrix to-
gether, and told them that he wished to ask
them some questions. He said if the ques-
tions were not answered correctly, he would
kill Sutton. He asked Sutton what his name
was. Sutton, at first, would not reply, but
at the suggestion of the prosecutrix, he told
him who he was. Inquiries by the negro of
Sutton as to where he worked, where the
place was located, if Sutton was married,
how many children he had, and the age of
his one child, were all answered truthfully
by Sutton. The negro also asked him, “Does
your wife know you are out here?”: Upon
being informed that Mrs. Sutton did not
know that her husband was at that particu-
lar place, the negro said: “I know Mr. Sut-
ton is not going to say anything about it be-
cause he is married, and his wife would kill
him, or run him off, if she knew it, and I
know he is not going to say anything about
it.’ He also made inquiries of the prosecu-

177 SOUTH EASTERN REPORTER

trix as to where she lived, and where she
worked. Her first answer as to her residence

was not a correct one, and the negro so said °

in effect, and then she gave her correct ad-
dress. She told him where she had formerly
worked, at a place on Main street in the city
of Columbia. He asked the prosecutrix what
she was doing out there, and her reply was,
“T happened to be in the car with Mr. Sut-
ton.” The negro said to her, “You cannot
afford to tell this,” and she answered, “‘No, I
would not tell it for anything.” The negro
said to her, “If I thought you would, I would
kill you.” According to Sutton, the negro
was a great talker, but he did not talk so
loud. In describing the conduct and words
of the negro, Sutton said: “He seemed to be
very excellent along that line, and his nerve
was that of a brute, and it was straight as
it could be.” The negro, before leaving said,
first, that the keys to the car would be found
down the road somewhere, under a tin can,
not so far away, and he told Sutton and the
prosecutrix that they were not to leave the
place under one hour. The negro said he
would leave the watches with them; that
they were to look at the watches and see
what time it was; that if they left before
one hour, he had two or three fellows around
the place, and one of these fellows would get
them. Sutton thought this was false, and
the negro’s talk as to the nearness of con-
federates was “fishy.” In the talk between
them, Sutton told the negro that he had sick-
ness at home, some one who was bad off, and
he ought to be there. His purpose in telling
that was to “play on the negro’s sympathy.”
Finally, the negro came back with the dollar
bill he had taken from the prosecutrix in his
hand and the keys to the car. He called to
the prosecutrix, who, at first, would not go
to him. At the instance of Sutton, however,
she went to the negro who gave her the keys.
The negro said: “I will not give the keys to
Sutton, because he would not mind me I
know you will stay here one hour.” He re-
turned the dollar bill to the prosecutrix, but
said he would not give Sutton his money
back. During the time the negro was com-
mitting the crime on the young woman, he
said: “Lady, you certainly have got a lot of
nerve. * * * All the other girls I have
had contact with like this collapsed. * * *
I have done this before, and I am not afraid
to go anywhere.” Finally, the negro left,
going into the woods. Sutton estimated that
the time spent by the negro with him and the
prosecutrix to be from 10:45 p. m. to 12:30.
m. As soon as the negro left, Sutton wished
to drive off, but the prosecutrix was afraid

STATE vy. FLOYD 8.
171 cay oo eee

the negro did have confederates near by, that
they might be shot, and insisted that Sutton
should not start the car right away, but in
about ten to fifteen minutes, Sutton got the
keys from the prosecutrix and started the car
as quickly as he could. He drove out to the
paved road, and stopped at a lunch stand,
which he found closed, but some boys were
there, and he inquired of them if either Mr.
Glaze or Mr. Price, police officers, was
around. Upon being informed that neither of
these officers was about, he rode on through
the town of Brookland, and spent some time
there trying, without success, to locate Mr.
Glaze. The prosecutrix and Sutton then rode
to the home of the former, reaching there
about 1 o’clock in the night, and her mother
was told of the occurrences. The mother
and brother of the prosecutrix, with Sutton,
carried the young woman to the Columbia
Hospital, for it was thought by all of them,
and suggested by some one, that the young
woman should have quick medical attention.
The prosecutrix was placed in charge of a
nurse at the hospital, and at that institution
Sutton reported the rape occurrence. After
taking the prosecutrix to the hospital, Sut-
ton started in search of officers. At the cor-
ner of Hampton and Main streets, in the city
of Columbia, he ran across Officers Corley
and Spires, and reported to them the robbery.
He did n + then inform the officers, however,
of the alleged rape. He explained that his
reason for not informing them of the graver
crime at that time was because he thought
the negro might be apprehended easier if the
crime of rape was not reported. He described
to the officers a tie pin, the glass set in.which
was broken, that had been taken from him
by the negro. The officers and Sutton went
to the town of Brookland, but found no one
there who answered to the description Sutton
had given of the robber. Through Sunday,
Sutton continued his search for information,
and with his brother visited the scene of the
alleged crime, with the hope that some clue
might be found; but the search was fruit-
less. On Monday, through a negro taxi driv-
er, who lived in a house owned by Sutton’s
employer, he ascertained that a certain negro
had on Monday morning purchased an auto-
mobile. This information led him to make
inquiries about the defendant. Sutton gave
the information he had received to Officer
Glaze. On Monday night, the defendant, hav-
ing been arrested and placed in a jail in the
city of Columbia, the officers sent for Sutton.
Upon visiting the jail and seeing the defend-
ant, Sutton identified him as the man who
had committed the robbery. On that night,

he told the officers, also, of the alleged rape
of his woman companion. At Sutton’s sug-
gestion, some of the officers went to the house
where the defendant lived in search of evi-
dence, in the way of articles and the money
taken from him and the young woman. In
the defendant’s room, Officer Corley, from a
dresser, picked up a tie pin, the set in which
was cracked across the face, and Sutton iden-
tified it as being the one that had been stolen
from him on Saturday night previously. Sut-
ton also described to the officers how the
negro who robbed him had been dressed, and
a pair of trousers, so Sutton testified, similar
to the pair the assailant wore were found in
this room. The tie pin was introduced in evi-
dence and presented to this court. The trou-
sers were not offered in evidence, and Sutton
explained that one of the officers had taken
them from the house, and he did not know
what had become of them. Sutton declared
positively and repeatedly, both on direct and
cross examination, that he had never known
or seen, to-his knowledge, the accused before
the night of the alleged crime. He testified,
also, to the effect that he knew it would be
embarrassing to the young woman and him-
self to bring the prosecution for rape and to
testify in the trial, but that the offense com-
mitted by the accused had been such a grave
one, that he felt it to be his duty to relate the
whole story, that the law might be vindicat-
ed. In the court he positively identified the
defendant as the robber of himself and the
young woman, and as the person who had
committed rape on the prosecutrix. He stat-
ed he knew him by his general appearance,
especially his height, and notably by the tone
of his voice. The condition of the negro on
the night of the attack gave Sutton the im-
pression that he had been drinking some in-
toxicant, or had taken some “dope” ; but the
witness did not smell any whisky.

At the request of counsel for the defend-
ant, it appears that soon after Sutton began
to testify there may have been a “separa-
tion” of all the witnesses for the state, un-
der the direction of the court. We may be
in error in assuming that there was an en-
tire separation of all the witnesses, but,
clearly, the prosecutrix was not allowed to
hear the testimony of Sutton. In her testi-
mony, therg were, as suggested by the coun-
sel for the defendant, some yariance from
the testimony given by Sutton, mainly as tu
the language used by the negro in the things
he Said during the long time he speut with
them and talked to them, and as to the time
spent by the negro in their company, and the
length of time Sutton and the young woman

2p ARE AD

et

3
3


378 «8. C.

defense’ of alibi is not an affirmative defense
at all. It is simply evidence adduced by the
defendant to sustain his plea of not guilty;
that he did not commit the crime for the rea-
son that he was not at the scene of the crime
at the time of the occurrence. The burden
was upon the state to prove beyond a reasona-
ble doubt that the defendant was present at
the scene of the crime and actually committed
it. If the defendant offers evidence which
generates a reasonable doubt in the minds of
the jury that he was at the scene of the crime
when it was committed, which of course
would result from evenly balanced evidence
upon this point, he should be acquitted.”

The charge in the fourth exception, to the
effect that the state failed to disprove the
defense of alibi, interposed by the defendant,
relates solely to the evidence in the case, and
it will be discussed later.

[3] The only other legal position taken in
the exceptions is that referred to in the first
exception. There, it is said that in the trial
there was no evidence to convict the defend-
ant of the crime, which it was alleged he had
committed. The question of “no evidence”
is, generally, a legal question; but, after all,
the consideration of the complaint that there
was “no evidence” involves the consideration
of all the evidence adduced in the trial.

{4] The second and third exceptions raise
no legal question; they charge no error of
law; they are argumentative only. Under
well-recognized rules of the court, they might
be summarily dismissed. After all, however,
all that is contained in them, and what is
contained in the fourth exception, are em-
braced in the first exception.

[5] In the consideration of the appeal, we
disregard all technical rules, recalling what
wag said for this court by the late distin-
guished Chief Justice Watts in the State v.
Bigham, 133 S. C. 491, 131 S. EB. 603, 609,
which was approved in the later case of State
v. Hester, 137 S. C. 145, 134 S. E. 885, as fol-
lows: “It is not an open question any longer
that in a capital case this court will take
notice of any error apparent on the record
affecting the substantial rights of the ac-
cused, even though not made a ground of ap-
peal.”

[6] But we must stay within the powers
granted to, and within the limitations pre-
scribed for, this court in section 4 of article
5 of the Constitution, which declares that in
a law case, and this is such, this court is “a
Court for the correction of errors at law un-

177 SOUTH EASTERN REPORTER

der such regulations as the General Assem-
bly may by law prescribe.”

We shall endeavor to follow the true
course laid out for us in many decisions of
this court, construing our duty under the
constitutional provisions, the effect of which
decisions, in harmony with what was said by
Chief Justice Watts, was so well expressed
by the clear-headed Mr. Justice Hydrick in
State v. Johnson, 84 S. C. 45, 65 S. E. 1023,
where the defendant was convicted of an as-
sault and battery with intent to ravish, a
capital crime. ‘There, that learned jurist
said:

“This court has so frequently held that its
jurisdiction, in law cases, extends only to a
review of alleged errors of law, and that it
eannot set aside verdicts and grant new
trials, in such cases, on the ground of mere
insufficiency of evidence, unless there is no
evidence to support the verdict, that it is
needless to cite the cases.

“However, in view of the gravity of the of-
fense of which the defendant has been con-
victed, we are inclined, by a liberal construc-
tion of his exceptions, to consider the ques-
tion whether there was any evidence tending
to support the verdict.”

{7] The story of the alleged crime was
fully related in the testimony of John D. Sut-
ton, the first witness for the state. That
witness, a white man, married, with one
child, a resident of the city of Columbia, was
in the employment of a furniture company in
that city as a salesman and collector for fif-
teen years continuously. His business took
him often to the villages of Brookland and
Cayce, in Lexington county, just ‘across the
Congaree river from Columbia. Sutton, for
about six years previous to the crime alleged
to have been committed in this case, was well
acquainted with the prosecutrix, a young
white woman, twenty years of age, and mem-
bers of her family. He was often at their
home, also in the city of Columbia, and fre-
quently, in his automobile, conveyed the pros-
ecutrix, and other members of the family, to
and from their home. The prosecutrix had
been married, but, at the time of the alleged
crime, she was living apart from her hus-
band, and there had been executed by and be-
tween them some kind of separation agree-
ment. In the early hours of the night of Sat-
urday, August 5, 1953, Sutton was in the city
of Columbia, and rode in his automobile to
the home of the prosecutrix. At or about 10
o'clock that night, at the instance of the
mother of the prosecutrix, Sutton and the
prosecutrix, supposedly, left the home in Sut-

STATE v.
177

ton’s automobile for the business part of the

city, for the purpose of taking a message _

from the mother to her husband, who was
employed at night, and to visit a drug store
for the payment of an account of some mem-
per of the family for which Sutton had stood
good. Soon after leaving the home, with the
consent of the prosecutrix, Sutton drove to
the home of Mr. A. W. Dickson at 131 Green
street, in Brookland, for the purpose of see-
ing Mr. Dickson on a matter of business.
The prosecutrix remained in the car while
Sutton went into the Dickson home. There
Sutton was told by Mr. Dickson that a Mr.
Addy, whose given name was not known, who
lived near a schoolhouse, either in Brookland
or Cayce, not clearly declared in the evidence,
was interested in the purchase of a radio.
So about 10:30 p. m., Sutton, still accom-
panied by the prosecutrix, went to the house
where he thought Mr. Addy resided. Upon
going to or near that house, Sutton conclud-
ed no one was at home, and returned to his
automobile, where the prosecutrix had re-
mained. Upon leaving the home where Addy
was supposed to have lived, Sutton and the
prosecutrix, “u the automobile, started back
toward the city of Columbia. There were
few houses in that immediate section. The
road was not one much traveled. It was
close, however, to a main public highway,
leading from Columbia, by Brookland and
Cayce, to the village of Edmund. After driv-
ing the distance of about half of a city block,
Sutton drove his ear to the south side of the
road and stopped. His inquiry if the prose-
eutrix objected to his lighting a cigarette be-
ing answered in the negative, he proceeded
to light a cigarette. The prosecutrix and he
were “passing a few words,” not recalled. At
that time, an unknown negro came up to the
ear, the direction from whence he came not
being known, but from appearances he had
come from the direction to the rear of the
car. The negro had a long, black pistol in
his hand. Sutton had no weapon of any kind,
not even a pocketknife. There was a full
moon, and the night was very bright. The
negro ordered Sutton to drive off the road
into another little road, and the command
was obeyed. At the direction of the negro,
Sutton stopped the car; also, at his direction,
he got out of the car; and at the command
of the negro, the prosecutrix also got out.
The negro proceeded to rob Sutton, searching
him thoroughly, and took from him at least
$100 in ‘money, some of which belonged to
him personally, but the greater part of which
was money he had collected during the day
for his employers. The negro also took from

FLOYD 8.0. 379
8.E.

him a tie pin and tie clasp. The negro pro-
ceeded then to rob the prosecutrix. He held
her by her arm and took her pocketbook.
This pocketbook only contained a dollar bill
in money and a kodak picture of a younger
sister, some twelve or fourteen years of age,
of the prosecutrix. The negro talked much.
He asked as to the picture, and was told by
the prosecutrix that it was one of her sis-
ter. The prosecutrix told the negro to take
the money, but not to take the picture, as it
would do him no good. The negro said, “No,
I will keep that picture, she may be my next
one,” and he put the picture in his pocket.
The negro searched Sutton’s automobile,
looked at business cards that Sutton had
therein, and took the car keys. He made
Sutton and the prosecutrix walk a little dis-
tance together, during the time flashing his
pistol and pointing it at them. Finally, the
negro said to Sutton: “I will make you this
proposition, if you will divide with me, I will
give you the money back.” Sutton under-
stood what the negro meant by that language,
but pretended that he did not know, and the
negro repeated it. Sutton made no reply.
The negro said: “If you don’t talk to me, I
am going to kill you.” The prosecutrix told
Sutton to say something; if he didn’t, the
negro “is going to kill us.” Sutton, pretend-
ing ignorance as to the meaning of the negro
in the language he used, asked him what he
meant. The reply was, “I mean with the
young lady.” The negro said, “Let me have
the young lady, and he would give me my
money back.” Sutton told him that he could
take the money, the automobile, the clothes,
and everything, “but don’t touch her.” Sut-
ton appeared to be “‘hot” and the negro got
angry. He said to them, “G—— a—— you, I
will kill both of you,” and he also said, “I
will take her and leave both of you here in
the woods.” Sutton testified that he could
not express his feelings at that time; he did
not know what to do, but he thought of his
life “as the sweetest thing he had.” The
negro went close to the pair, and said if Sut-
ton did not mind him, he would kill him.
The prosecutrix said, “Maybe we can go
through with it, even if hard, but maybe we
can go through with it and not be killed.”
The negro made Sutton go to some point, des-
ignated in the courtroom as being the dis-
tance from the fireplace to where the witness
stand was. He made the prosecutrix stay
where she was. When Sutton got to the ap-
pointed place, the negro caught hold of the
arm of the prosecutrix. He saw then, evi-
dently for the time, that she had on ear bobs.
He looked at them, but said he did not want


198 CHOTANKERS

This later note referred to an execution--simply a Court order to Gilson
Foote to pay his debt--of $700 obtained by the executors of his father’s estate.
Henry and Richard Foote had called on Sheriff Robertson of Chester County,
and he had gone with them to John Kennedy’s house to see Gilson, where he
was at the time. Gilson proposed that to satisfy the debt he give them a Negro
woman which he had just purchased from John Kennedy. Henry and Richard
took his offer, received the Negro and relieved Gilson of any additional
obligation. Then Kennedy proceeded to buy the Negro back from them for
$300. Henry and Richard left satisfied, presumably feeling later that somehow
they had been taken after reflecting on the arrangement. Kennedy had made
$100 on the deal for he had sold the Negro to Gilson for $400 and bought her
back for $300. Gilson certainly had no complaints for he had fulfilled a $700
debt by spending only $400. And even the $400, he did not pay Kennedy-
admitting over 12 years later that he still owed the debt.>%°

News of the hanging had traveled fast. The people heard that a pardon had
been denied--they came to Edgefield to see Gilson Foote die. Not that crime or
hanging were that unusual in Edgefield, for South Carolina led all neighboring
states in the number of offenses punishable by hanging, more than 40 in 1824.
While “benefit of clergy”, a legal loophole allowing a felon who was a first
offender to be branded rather than hanged, cut down considerably on the
number that went to the gallows, Edgefield still had more than the normal
share of hangings because of its high rate of crime. Her infamous reputation
spread over all the United States when Parson Mason Locke Weems made
Edgefield murder the theme for one of his best-selling books.

“Oh mercy!” cries the reader--‘'What! Old Edgefield again! Another
murder in Edgefield! Why, ‘twas but t’other day that you gave a history
sufficient to freeze the blood with horror--the story of a husband murdering
his wife! And now you talk of a history ten times, if possible, more unnatural
and horrible still--... And all in Old Edgefield! Well, the Lord have mercy upon
Old Edgefield! For sure it must be Pandemonium itself, a very district of
Devils!’>3!

So hundreds poured into town that Friday morning, less than four months
before a South Carolinian from the same Congressional District, John C.
Calhoun, would be elected Vice-President of the United States. As Gilson
started to work on his will, the hundreds grew toa thousand and yet more were
still coming, clogging the main roads into Edgefield, drawn by the same reasons
that made all hangings popular public events. As Williams described it:

People attended hangings for a variety of reasons. The most usual, of
course, was morbid curiosity; but this was not always admitted. Many said

530Court of Equity Minutes 1820-1841, June Term, 1841, Chester County, South
Carolina (W.P.A. Transcript), p. 241.

531Quoted in Jack K. Williams, Vogues in Villainy: Crime and Retribution in Ante-
Bellum South Carolina (Columbia: University of South Carolina Press, 1959), p. 4.

ANOTHER MURDER AT EDGEFIELD

they were fast friends of the culprit, and had come froma sense of duty to pay
him final homage. Others claimed to be relatives. Some declared that they
came in hope of obtaining a souvenir. A bit of rope used in a hanging would, it
was claimed, cure the worst sort of toothache; and others said it would
prevent horses from balking and wives from nagging.52”

As the gawkers selected the best seats, Whitfield transcribed Gilson’s last
will and testament. “I further give & devise to the said Lucinda & the said
brother or sister, as the case may be, all my right, title, interest or claim in
Rocky Mount Fishery & Mountain Island...’"533

When Eldred Simkins, Jr., brother of Susan Ann Simkins who married
Andrew Pickens Butler, came by the jail to check on Gilson’s state-of-mind for
his brother-in-law, Whitfield Brooks asked him to witness Gilson Foote’s
signature on the will. Eldred’s brother, Arthur Simkins, edited the local paper,
where information on the last events then occurring within the jail was being
sought. The other witness to Gilson’s signature was Richard Tutt; he had
served as Clerk of Court from 1800 to 1808, during the period of the Sheriff's
term of Sampson Butler, the uncle of Andrew Pickens Butler. Therefore, at
least three of the men alone with Gilson Foote during the last hour of his life
had strong connections to the Butler family.

Still in Ashe County, North Carolina, Sally had delivered a boy, whom she
named Jasper.>3* The Court Records of Chester County, South Carolina prove
unquestionably that Lucinda A. and Jasper N. were Gilson’s children for the
Court in 1839 called them “his natural children.’

By noon, the time for a group of men to walk Gilson to the gallows, over
2000 people had arrived in Edgefield to view the hanging. The Sheriff led
Gilson flanked by guards through the crowd. As the procession moved the
short distance from the jail to where the hangman stood, a minister followed
the group praying for the condemned.

With expectation, the audience now waited for Gilson’s speech. They had
come to expect that the last words of the condemned would be the greatest part
of the show with the single exception of the ‘“swinging-off”’ when the trap
opened and the body jerked and twitched at the end of the tautly stretched
rope. Some had laughed and joked, while others had screamed for mercy as

532]bid., p. 102.
3Box 37, Package 1439.

54In 1850, Jasper Foote was living with his mother Sarah in the household of John
M. Massey in Tishomingo County, Mississippi. Massey had married Lucinda, Jasper’s
sister. According to the 1850 Census, Jasper was born in Kentucky; however, this
discrepancy appears to have been a transcribing error by the census taker, for I have
found no evidence that Sarah went to Kentucky.

SCourt of Equity Minutes 1820-1841, June Term, 1839, Chester County, South
Carolina, (W.P.A. Transcript), p. 217.


200 CHOTANKERS

they were dragged to the platform; even others prayed aloud or begged others
to go to church every Sunday. According to Williams, ‘Some attempted to
unnerve the hangman by calling on God to ‘strike dead’ the man who ‘would
take another life.’ Some proclaimed their innocence to the last, anda number
of these begged the onlookers to come to their rescue.”””*But Gilson Foote did
none of these, recalling his upbringing as a Chotanker, he remained silent as he
stood in solemn dignity beneath the rope. And then it was over. A reporter for
a Columbia paper tersely described the event.
Yesterday between 12 and 1 o'clock, we witnessed the Execution of Gilson

Foot, for Horse Stealing. It seems that he has been quite impenitent during his
confinement, disclosing or making no confessions. We suppose there two

thousand spectators.*??
After the hanging, Whitfield Brooks went home to a family celebration; it

was Preston Brooks’ 4th birthday.

36Williams (book), p. 103.

537" Execution.”, The Pendleton Messenger, Volume 18, Number 6 (August 18, 1824),
p. 3. Reprinted from the Republican, the story is datelined “Edgefield, Aug. fd:

CHAPTER FOURTEEN

CROWDER

With the death of Gilson Foote, those that had been most involved in his
defense tried to put their lives back together. Presumably, William and James
Foote joined their sister, Elizabeth Lyles, the Butler family representatives, and
a few neighbors of Gilson Yarborough’s for the burial on his farm.

Dr. William Butler, the son of Behethland Foote Butler, examined his
cousin after the hanging and pronounced him dead. He had married Jane
Tweedy Perry in late 1819 in Brooklyn, New York, having met and courted her
as a young naval surgeon. Her brother, Matthew Calbraith Perry, gained fame
as Commodore Perry, whose mission to Japan in 1853 resulted in a trade
treaty which opened Japan to foreigners for the first time in two centuries.
Another brother, Oliver Hazard Perry, is recognized as one of the great U.S.
naval heroes, having defeated the British in the War of 1812 on Lake Erie.>*8
Dr. Butler’s revulsion, sparked by a bitterness toward his fellow citizens from
Edgefield for their lack of compassion for his elder relative, must have been a
major reason that he moved in 1824 to Greenville District, where he received a
large body of land in trade for his Saluda River plantation in Edgefield County.
He built a home there ona hill, to become known as Butler’s four miles from
the Greenville Courthouse.53°

It certainly was in character for Dr. Butler to leave Edgefield over the Gilson
Foote matter, for he has been described as ‘'stern in manner, at times
approaching austerity, distinguished for elevation and integrity of character,

%8Governor Benjamin F. Perry, ‘‘Hon. M.C. Butler”, and ‘tMrs. Jane Tweedy
Butler’, Reminiscences of Public Men With Speeches and Addresses (Greenville, S.C.:
Shannon and Co., Printers, 1889), pp. 22-31. Perry’s Victory and International Peace
Memorial National Monument is located on 14 acres on Lake Erie in Ohio, where a
granite shaft, 352 feet high, commemorates his victory over the British fleet, leading to
a peace treaty between the U.S. and Great Britain.

8°John A. Chapman, History of Edgefield County (Newberry, S.C.: Elbert H. Aull,
Publisher, 1897), p. 348.

201


eee

y it wave .:
e brave.’”:

De.

15. 1834.

sted to an-
, Esq. as a

NTS,

Georgia:

itentiary.,
1clorss- °

‘eper.:

ant keepers.

Clerk.’

le.
h.

if the Slate

IRD.—The
combined to”
has “usurp.
sword;”’ inet
Caligula,”
i fuitdishen's a
mation; and
ie President,
alschood.

@, hug usurp.
OW Cultruls,

ind ‘absolute

ity force of
and George,

‘this bloody
uis powerful
:cusations;a-
him torrents
yon him epi-
1g
tive: opposi-
lust personal

has siezed
and usurped

y force, the.

1emies enti

ty! “How-ab-

of Clay’and.}

ngress, werc
! before | this
Ye If: they |,

in some pri-

orner of the :
ong-milaty | :

in With. their

'
‘

-of. the: treasurc of: the United States;. it continues | i
evil could not, be inflicted: onthe 6

the President, it isnot more controlled by him;|-d
‘than while it .was credited on the books, or lock-

“Led. repeated’ outrages on unoffending,
| sisting Indians, lost his life, in attempting to kilf

vand, yet J,

pended the treasure of Rome in ‘prosecuting: a|t
civH war againsttte republicans of Rome: but
| Jacksoy assumes no control over.the expenditure |

to be regularly applied by the ‘constitutional dis-

thie ordinary, legal appropriations. In the State
Banks, it is not-more subject to the control of | e

ed up in the vaults of the Bank of the’ United
States.) What upright statesman wouhl repre= |.
sent this act, as a Ca of the’ nies cis
the purse} -
“He has Gecred ‘the power ey tha sword. m.
When Hardeman Owen, formerly -of. Macon, a
man’ of infamouscharacter, who had ee
unre=

a soldier who-had been ordered to remove’ him
from the public land, the President required the |.

the Secretary of War, acting under his dir
tions, ordered the detachment to which the sol.
dier belonged, to obey all civil process issuing:
agginst any of them, cither from. the .State..or
the Federal couits. Is ‘this determination to
preserve the ascendancy; of the civil authority,
and the subordination of. the military, a “usur.
pation of the power of the sword?” . He has
not added one soldierto the little “army of’ the.
United States; he has not. employ ed one. soldier
of that litle.army in executing an unlawful éom-
} mand: but while he is the Chief Magistrate .of
this confederate republic, he will, take care that.
the laws be duly executed: and in this* he - will
be efficiently sustained: | A grateful people have
heretofore known how to estimate the patriotishy
of Andrew Jackson; and they will continue to
‘defend his reputation against the. detraction of
his twice- defeated cnemics.: fe

FR AN]: Opes is stated at Washington, that
our, présent relations with France are not ofa
eharanter. ng friendly as ‘they ‘have: generally
becii. | It,is understood, that’ the French minis=:
try avoid. fulfilling the engagenicnts of. their:
government, under the: convention.concluded by:
Mr. Rives, for indemnity for lrench ee
on. A merican commerce.

~oe , : A AY
a Se <5 : £. 2

MILLEDGEVILLE - OWN | COUNCIL.

Saturday, 4th inst.’ tte- following : gentlemen
were clected commissionérs:) ':- .

John A. Cuthbert, Intendant.” err
oe John: Marler, Cun Wa Oe Se ow ae
*. John’ B. Lamar, . ‘ enya

Drewry Murphey: Commissioners.

Sami "Tucker, ce: ) aes Pe ae
. Abner Hammond,’ W as - Te. clected Secretary
aa Treagurer: °° y

_ Chappel Boutwell, Marshal, iti) ee
‘George Briggs, Dep: uly Marshals. seas
a ienty Darnell, . Clerk of” the Market:

— Abel W. Wilous & Pryor Wright, Aue!’ rs. °
7 Wsaae-r. Cushing, Town Surveyor Reset:

~ Augustus HH, Kenan, n, Allorney..

r “a ameter

fog

the. Anniversary of the glorions: Sih. of Janua-,

rv, when

‘J
‘Whose success:.must -spread | ruiti: hie dens:
. wide spread cominunity? Ho‘ had no hesitation: vs

bursing officers of the Government,, in fulfilling }** ‘Gp 3
‘sho t two years ago;'the, samo: gentleman “used

evil which could ‘be® inflicted’ on: the’ we
Savannah Georgiana Ps: ;

[ere to theamerchants of ‘this place Ww
fede: : oh

military to submit - to the cIvit- Seria 4 oo

ments. mentioned » in the: message. sac olgontcryy carrey
ddver tise re sae ‘ te bynes -
oe Pryor Derren TMENT. tee

At an’ eléction held. at the. court-house, on},

vy the arate ee ga at) Fort i alli 4

orders were issucd'to Majar
Jall.civil process, a nd to ntfo:

“picata OF JANUAR YY calordny bette ?

he Bank? Could: they. be actuated, by a

n saying that, -should this. be ; ;done, a greeter
bry.” mt. *

“‘Two'year’s ‘ng0, 70, ;

nsistency is a jewels

ry .eflort to. destroy’ the Bank,’ nfid“ now, he.
aelred: its destruction. would ’ ‘be’ the

We noticéd it our, Tas, (says. the’ Columbus”
‘Enquirers) that the steam boat Georgian, ticund ‘
‘to. Columbus had been: snagged: and sunk’ with)
he: whole catgo. , Wo have been informed and.
ate. now sorry “to state. that: there is: no: hope of
securing he, ‘boat or her contents.: Tt is looked™
pot as. gi entire loss.” The goods on board’ be:

at ea wea peat

Pics, Sire was. ound: rail at the: Tent M
tosh Court of the murder of ‘Col. Brailsh ord,
hung-on the 27th ult. at Darien, | Pursuant Jose
tence. ae : i ae
We “unjlerstand that he: attempted ‘ to. eat hig.
throat afew minutes: before. the time arrived to. j
conivey-him toxhe place-ofvexecution, but failed Gee
doso effectually Mtraccount. of the blunitess ef the ©
apts whieh he had’ ‘secreted | for. the. purpose,” He
inade: some. superficial’ ‘gashes, Which catised the”
blood to flow-over him and disticure his: Appeatatires
He met iris fate. with’ the’ most. ‘oppalliny inevers
ence; cursing to the’ dast moment. Wilien asked: Pe
he; wished {or time, he answ ercd, No,. He refused,
-we-are told, with oaths; to stiffer a cap to be dravn o
over his fhee, anid wae: launched. ‘INto' etérnity with |
acurse half uttered: from his lips, which was ent __-
short by. the (to him) unesected ning of the trap,
—Savaunah G'con sian, Sd inst, @ saint a

CREEK SETTLERS, ~~ The: fillowing nes"
sare Of. Governor: Gayle, fy the Levislatire ¢ ol this
State, will be read with intesest.* The. Creek cons
roves ray: shag ‘heen. amicawi vy: adjusteds ahalsin thie
inneusee of the Govertior,: “the sctulers ate to Ts
cminite ingiesindisturbed possessidn oftheinin: proves .
ments, end that the orders. of the Scoretary ol Wer
care 16 be confined exclusively. tote locations which.
were “reserved to the Indiatis” by The), Treaty
We,-bave nov roam for, the: “Accompanying docs.

Ins, ‘a
Ww at by

i, Ox? re iw

i “as ‘sun
an indi
served,

E “ Jocativ
» will be”

MU istrict,

may be
“bath.
form ‘of

Tneciloosa 20th Decembe ry ASS3e
OW ith my annual’ tiessave of the d9th ultinio, t
transinitte dto the Generat. Asecn, bly subdry: digits.
ments, which had heen receiy ed front, the: Hon Py
if Wy Harris, showing ‘that the persons: indicted: far,
‘the nitirder: of. Mardéman, Oiven, -wefe. protected

“Nulus of

béén. der ppaiitels saree on’ bh
at the War. * Depat iments

die and proper. exceuti
F| perseived from the lett
of- November): hil
‘| companied iawhich ; dre’
cantina tion Of the leaistatu'
Francis S. Key, Esqi ‘genilcm
tinguished: for’ intellipcnee: ‘and Le

honorable character, aurtived at’ d


a December 27, 1633
FORBES, mgr
“ A man named Forbes was hanged at Darien, Ga.,
on Dec. 27, 1833 for the murder of Col, Brails-

ford. : i
COURIER, Charleston, SC, Jen. 6, 183), (2:3)


He federal Uam. Wblledgeile Pa. I//5 [34

FORD,

‘William, white,

on

We are  Fodmined tot politeness of a}.

friend in fpartanburgh, fur, the fwilowing |
|| paniculare Panerai Peat of Fono, |

|

| for Negro resting :

“Pridag 16th inst. “woe the day get npait |

lor the eaceution of Was. ‘Forp far. Negro ly
be 1 | seating The prisoner, afer ryaldrs w twol
roth etaal | uttempte to lacul juve hire sy 5 8
‘that hte tame vas ehort attern pied, tw desi
strony brinself by cutting his legs ant arms a
\ ‘with a pace of plaas tun. Yer. | Pe had b
‘lust.near a gallon of Lload, tis sup poeed At)
“Uetore he was cacosered, yee very |
C \eeak from lows of bidod.  be“inade a fil i.

teank son ef Law cuume, conten’ npall the

-~16-1839,

3 !

tt
material favte sQorn to by tha wWitnerses on,

‘bia trial, wd sri hd dad dealt largely in -
coup egfeat hue ey Ni the Inet tn yearns |
{He attributed big” present degraded cond:

!

Vay and asm gent spuis t but said he never,
t had imphermted any pe tan in the Dratniets’
jof Spatianburgh and Laurent, Tle wor ¢
Goes early inthe InEFAINg by the Res. :
Tuomas Heriixce The prisoner ne: J}
fenmined iu jril til halt, past IZ o'clock, bee |

a

tion, to fhe comfoned « tf cts of bad compa. |

18 compelled to duso from hj weak con- i

‘ditiod, Mr. Uutctings thea delivered a)
sbort but appropriate discouree to the vast ,
j asec anbled multitude, at the, tequert ofthe |,

| prisorer, from the’ fullow ing. tert:

‘mane, 6,2 : "Foe the wags of . ‘18
death, Lut the gift of Gud as eterna) fet

, through Seas Christ cur Lord.”

afer a show prayer, the prisunet Was car.
pried to the enlion ». but wae so weak aod: ts

fe ble thay he. had to be Leapported, |

After |

bidtanng ‘hia tends farewer!, Le was placed
on the boat’, and wha} { past Tutcloek, the

(Shel knocked the boaril from undet bem, |=

Ro- '

thee

4

ty

‘and akeca slight struggle for five inimutes, | 11
che coated tor ove. ‘The whole scene was} s
~ awful beyond cever pion, Hie was about ly

she middle age, ond bas many atid teepects:

i be counesions.”

cane cape

THE GREENVILLE MOUNTAINEE R, Greenville,
August 23, 1839

+v

at

nt ee ae Day hae A
Josh Frazer, hanged Camden, S, C., MAX¥ 5-1))-1875, :

"Camden, S, C,, May 1h, 1875-Tke execution of Josh Frazer for the mrder of Benjamin Cooper
took place in the southwestern portion of the town at 11:5 today, Over 6,000 persons were
present, The Revs, Maurice Boykin and James Brown (Colored) ‘conducted the religious exer=
cises, assisted by Frazer, who was himself a Methodist preacher, ; ;
"Grazer spoke about 20 minutes to the crowd, He acknowledged having killed Cooper and he
also confessed the murder of his wife's child and a negro woman in Camden, He also acknowe
ledged having set fire to.gin houses, mills, etc, He said that he was ready to meet death
as he had been washed in the blood of his Savious and feared no harm to his soul, He re-
mained perfectly calm throughout. The wildest religious enthusiasm prevailed, Sheriff
Doby had everything arranged so as to conduct the execution with perfect ease and order,

At 11:6 the curtain fell and Frazer was ushered into eternity, He died of strangulation
in 7 minutes, the rope having slipped, At 12 o'clock Dr. A. As Moore pronounced him dead,
and the body was then placed in the coffin and turned over to his friends, Not the slight-
est disturbance has taken Place, which is doubtless owning to the excellent management of
the police force in charge of Chief of Police Witherspoon, This is the first execution

_ which has taken place in this county since 1862,

"Josh Frazer was a dark mulatto, about five feet eleven inches hight, and about thirty-two
years old, He could read and write, and was inthe habit of having morning and evening
family prayer. On the night of the 29th of December, 187), Benny Cooper was shot on the
Plantation of Ward and Snith about four miles from Camden, An inquest was held next day,
and Josh Frazer was arrested, charged with being the murderer, He was tried by a mixed
jury at the January term of court and sentenced by Judge Carpenter to be hung on the 26th
day of March, On the day after sentence was passed he confessed his guilt. He was convicted
entirely upon circumstantial evidence, Owing to the death of the Sheriff Place and no
/One being empowered to perform the functions of that office, he was respited until today.
When informed ofhis respite, the prisoner coolf remarked: "that the devil did they put it
off so long for?!

"The prisoner had always maintained a desperate character, During his confinement, since
sentence, he made several attempts to escape, and on two Occasions attempted to commit
suicide,"

CONSTITUTIONALIST, Augusta, Gas, May 15, 1875..


FRAZER, Josh, black, 32, hanged Camden, S. C., on May 14, 1875.

"Camden, SC, May 14, 1875-The execution of Josh Frazer for the murder of
Benjamin Cooper took place in the southwestern portion of the town at

11:45 today. Over 6,000 persons were present. The Revs. Maurice Boykin
and James Brown (Colored) conducted the religious exercises, assisted by
Frazer, Who was himself a Methodist preacher, Frazk spoke about 20

minutes to the crowd. He acknowledged having killed Cooper and he also cons
fessed the murder of his wife's child and a negro woman in Camden. He

also akknowledged having set fire to gin houses, mills, etc. He said he
was ready to meet death as he had been washed in the blood of his Saviour
and feared no harm to his soul. He remained perfectly calm throughout.

The wildest religious enthusiasm prevailed. Sheriff Doby had everything
arranged so as to conduct the execution with perfect ease and Order,

At 11:46 the curtain fell and Frazer was ushered into eternity. He died

of strangulation in 7 minutes, the rope having slipped. At 12 o'clock

Dr. A. A. Moore pronounced him dead, and the body was then placed in the
coffin and turned over to his friends, Not the slightest disturbance has
taken place, which is doubtless owning to the excellent management of the
police force in charge of Chief of Police Witherspoon. This £h the first
execution which has taken place in this county since 1862,

"Josh Frazer was a dark mulatto, about five feet, eleven inches high, and
about 32 years old. He could read and write, and was in the habit of hav-
ing morning and evening family prayer. On the night of Dec. 29, 1874,
Benny Cooper was shot on the plantation of Ward and Smith about 4 miles
from Camden, An incuest was held next day, and Josh Frazer was arrested,
charged with being the murderer. He,was tried by a mixed jury at the
January term of court and sentenced by Judge Carpenter to be hung on the
26th day of March. On the day after sentence was passed he confessed

his guilt. He was convicted entirely upon circumstantial evidence. Owing
to the death of Sheriff Place and no one being empowered to perform the
functions of that office, he was respited until today. When informed of
his respite, the prisoner cooly remarked: ‘What the de#il did they put it
off so long for?' The prisoner has always maintained a desperate charac-
ter. During his confinement, since sentence, he made several attempts to
escape, and on two occasions attempted to commit suicide," CONSTITUIONAL-
IST, Augusta, GA, May 15, 1875.

992 8.0.

tion by the trial Judge in refusing to grant
motion for change of venue on ground that
defendant could not obtain a fair and im-
partial trial, this Court will not interfere
with trial court’s ruling. We find no such
showing in this case. State v. Goodwin,
127 S.C. 107, 120 S.E. 496; State v. Fran-
cis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R.

1133.

[11] 8. Was it error for the trial
Judge to rule as qualified jurors those who
had stated on their voir dire that they had
formed or expressed an opinion and that
it would thke some evidence to disabuse
their minds of tHis formed or expressed
opinion?

The question has been before this Court
numerous times.

In State v. Williamson, 65 S.C. 242, 43
S.E. 671, 672, it is said:

“Section 2944, Code 1902, provides
the Court, on motion of either party
to suit, shall examine any person called
as a juror therein, to know whether
he is related to either party, or has any
interest in the cause, or has expressed
or formed any opinion, or is sensible
of any bias or prejudice therein; and
further provides that the juror shall be
placed aside ‘if it appears to the court
that the juror’ is not indifferent in the
cause. Numcrous cases from State
v. Dodson, 16°S.C. [453] 459, to State
vy. Robertson, 54 S.C. [147] 151, 31-S.E.
868, ‘construing the statute, dcelare
that it invests the Circuit Court with
exclusive power to determine whether
dire, ‘is | indifferent in the cause.
‘Whether a juror is indifferent in the

eause is a question of fact which is not

reviewable in this court, unless, per-

haps, it should appear that the conclu-
gion of the circuit court is wholly with-
out atly evidence to support it. ' In’

this case, while it is true the jurors,

--when examined, said they had formed’
ot expressed an opinion as to the guilt
or innocence of ‘the accused, and that

it would require evidence to remove.

87 SOUTH EASTERN REPORTER, 2d SERIES

that impression’ from their mind, they
also declared that they were not con-
scious of any bias or prejudice for or
against either of the defendants, and
would decide the case according to the
evidence, uninfluenced by such opinion.
It cannot, therefore, be said that the
conclusion of the circuit court was
without any evidence to support it.
We do not think that any error of law
was committed as complained in these
exceptions.” ;

While in the instant case several juror
did declare that they had formed an opin
ion which it would take some evidence t
remove, they also declared, as they did iz

the case above mentioned, that they wert |

free of any bias or prejudice, could givt
the defendant a fair and impartial trial ané
would be uninfluenced by any opinion there
tofore. formed.

More recent ‘cases dealing with ths
same question are: State v. Steadman, 2!¢
S.C. 579, 59 S.E.2d 168; State v. Gantt, 22"
S.C. 431, 76 S.E.2d 674.

# * * #0 ¥ *

[12] 10.. Was it error on the part of th

trial Judge to fail to charge the jury te |

. . é a
law on circumstantial “evidence? Ty

State’s case was. founded upon.a purporte! |
confession by the defendant made to th |
’ sheriff; fingerprints on the shattered gia® —
' of the car; a rifle from which palliste’
’ experts testified the bullet taken from th

body of the deceased was shot ;' a compe

watch, purse and other,, personal items, # |

cated for the sheriff by the defendant dur

the investigation, all of which identified # |

a juror, after examination on his voir "property taken at the time of the homicwe

In the case of State v. Gatlin, 208 s¢
414, 38 S.E.2d 238, 240, likewise a capi
case) this Court said:

» “But, it-1s contended that’ the coutt
erroneously: failed to instruct the jut
respecting circumstantial evidence
the nature and strength of it requi
for. conviction. The argument over
looks, the fact. that the crime, in
case and the identity of appellant wet
established by: direct. evidence and th

STATE v. FULLE ee sel vie
Cite as 87 S.E.2d — she eas 8.0. 293

‘circumstances introduced were merely
corroborative. In such a case it is
not requisite that the law of circum-
stantial evidence be charged. State
y. Bunyon, 137 S.C. 391,.135 S.E. 361;
~~ v. Rickenbaker, 187 S.C..448, 198
S.E;°43.” tess

In this case the State does not rely solely
eon circumstantial evidence, wherefore it
was not incumbent upon the trial Judge to
ccarge the law of circumstantial evidence.

{13] 11. Was it an abuse of discretion
for the trial Judge to refuse to segregate
‘se witnesses upon motion in a capital case
where the death penalty was being de-
sanded? The exclusion of witnesses from
e court room is a matter which rests
‘argely in the discretion of the trial Judge.
ot v. O’Neal, 210 S.C. 305, 42 S.E.2d
3 State v. Ferguson, 221 S.C. 300, 70

a 355, ; It necessarily . follows that
where there is a manifest abuse of discre-
ten, this Court would not hesitate to cor-
ret same. We have carefully examined

A , :
¢ record in this respect and we find no
wh abuse. ;

gue 12, Did the trial Judge err in
ng the defendant’s motion’ for a mis-
vt — the Solicitor in argument before
Jury attacked the defendant for inter-
tite what he termed. to be in effect in+
mestent defenses? 9) us yt DtgRS

Th . = .
Abr portion of the Solicitor’s. argument
mained of, as disclosed by the record, is:

are spent time after time here, hour: «i
ae ri where they were apparently }
. Sh get you to believe this man::'
~~ “med and therefore not respon-
an or his acts...:But when counsel
rs to address you, they ask you
wy verdict recommending him to the
.. . - the Court. Yes, it is true that .
ie siege can interpos¢ a plea of.::,
ack, 4 oria plea of not guilty by
ke ca ae or‘as many defenses ©
is meat choose, but nevertheless: :
, y this to you: Why bring all of |:
ate baer about insanity if they: »
; going. to. ask you to! find a.

verdict of not guilty by reason of in-,
sanity? Of course, His Honor will
charge you that law”.

At this point counsel for appellant inter-
posed an objection to the Solicitor’s re-
marks and moved the Court for a mistrial
The Court overruled the motion.

We have carefully examined the record
in reference to the remarks of the Solicitor
and it is our opinion that it was proper for
the Solicitor to attack any inconsistencies
in the testimony or defenses interposed by
the defendant. Especially is this true in
the light of the various verdicts that the
jury might possibly return in the case.
The jury was to détermine whether appel-
lant was guilty of murder, guilty of murder
with recommendation to the mercy of the
court, not guilty by reason of insanity or
not guilty:

a * * * *  o*
The portion of our original opinion here-
inbefore set forth excludes the discussion
of Questions 13 and 9, which concern Ex-
ceptions 12 and 13 respectively; and to
these exceptions we now advert.

By. Exception 12, appellant contends that
the trial judge erred in charging the jury
as follows:

“Take into, consideration whether or
not there has, been any contradiction
of any material evidence or testimony
given by any witness by the testimony
of any other witness. Likewise, take
into consideration whether or not there
has been any corroboration of the testi-
mony of. any witness by that of any
other witness”.

The gist of this exception is that the
langiiage jttst quoted amounted to a charge
on the’ facts, within the prohibition of
Article V, Section 26, of the Constitution
of 1895.

As the words here complained of should
ofcourse be considered contextually, we
quote in full.that portion of the charge in
which they were used:

“As I have told you already several
times, and will perhaps-repeat as I go

Suny He

SCHOOL OF LAW

UNIVERSITY OF ALABAMA


290 8. C.

liable test: for adults. The result in
that test gave an I. Q. of 8, which would
mean that he had the learning ability
of the average eight to nine year old
child. ; We speak of that as the mental
age.”

This witness further testified:

“Q. Dr Kilgore, you recommended
that this ‘particular test be made of
Raymond Fuller, did you not? A.
Yes, sir,- I recommended that it be
made, based on the history of the head
injuries.

“Q. Now, Doctor, under the Court’s
ruling you cannot disclose any part of
the contents of that report, but I would
like to ask you, did you receive a report
from the party making that test? A.
I did.

“Q,. If you will, go ahead, Doctor,
with your statement of your conclu-
sions. A. My neurological examina-
tion revealed no evidence of disease,
physical disease of the nervous system.
My clinical impression with regard to
this man was that he was mentally de-
fective, and not insane. Psychological
tests done to check * * *.”

It is too well settled to require the cita-
tion of authority, that more latitude is al-
lowed on cross-examination than on direct
examination of a witness and that the scope
of such examination is largely discretionary
with the trial court.

The psychologist, Hallum, testified at the
former trial of appellant, but was not called
as a witness in this trial. nn

On cross-examination of the witness; Dr.
Kilgore, in this trial the Solicitor examined
him, over appellant’s objection, concerning
testimony given by Hallum at the former
trial, pertaining to the various tests given
appellant by Hallum. It is apparent from
the above-quoted testimony, to a consider-
able extent, the source of the information
upon which Dr. Kilgore formed his opin-
ion was psychological tests made under. his
instructions by Hallum.

w

87 SOUTH EASTERN REPORTER, 2d SERIES

The witness having given an opinion
to the mental condition. of the appellant, #
was proper for the Solicitor to inquire inte
the source of the information upon whic
he based his opinion for the. purpose of
determining the weight to be given to #

‘[7] 3. Was it proper for the Soliciter
to include in questions employed in cross
examination statements of alleged facts ne
in evidence? .

This exception questions the Solicitor
cross-examination of Dr. Kilgore in refe?
ence to questions pertinent to the ment
condition of appellant. It appears from
the medical testimony that “experienc
is a determining factor in arriving at th
mental capacity of’ an individual. In he
cross-examination of this witness, the &
licitor asked numerous questions as to “¢
periences” of appellant, relative to ments
capacity. Included in this line of questiog®
was one to the effect that if appellant #
tended church, would not that be evident
that he knows right from wrong, lx
morally and legally? At the conclusion #
the State’s reply testimony, the Solicit
moved the Court to strike this question, ®
the State had failed to offer any testimo
that appellant went to church, This &
Court did and instructed the jury to dist
gard same.

As to the remaining questions, which #

pellant contends there was no testimony ®
substantiate, after a careful examinat® 4

of the record, we are of the opinion t's

there is testimony and reasonable inferet

to be drawn therefrom, that permitted ® @

Solicitor propounding same.

The Court’ having eliminated the ot
question which the testimony did not ¥#
rant, this exception is without merit.

[8] 4 and 5. Did the charge of oF
nocrt® 3

trial Judge upon presumption of in

violate the prohibition of Section Pe

Article 5\of the State Constitution in‘

it conveyed to:the jury his opinion upoe ve

evidence? Did the charge correctly
the-Jaw of this State? |
“ & :

‘TIA OS STATE y, FULLER IAS ATuce 73 8.02

Cite as 87 S.E.2d 287

“I charge you, Mr.. Foreman. and.
gcutlemen of the jury, that it is a
cardinal and important rule of the law
of evidence that the defendant in a
cnminal trial, no matter what the enor-
mity of the charge made against him
may be, will always be presumed to
be innocent of the crime for which he
is indicted until his guilt has been
proven by evidence satisfying you of
that guilt beyond a reasonable doubt.
This presumption ‘of innocence does |
nat cease when you retire; but it ac-
companies the defendant from the time
of his arraignment throughout the trial
and until you have reached a verdict of I
milt based upon evidence’ satisfying :
mo that guilt beyond a feasoriable
ree Our Supreme Court has said:
that that presumption of innocence is
“ke a robe of righteousness placed
about the shoulders of the defendant,
ot it remains with him and aseigins
‘im to that class, the innocent, until
that presumptive robe of righteousness
has been stripped from his person by
tridence satisfying you of that guilt
ae guilt, beyond a reasonable doahie
*o then, Mr. Foreman, that is not a
“i legal theory. It is not just a.
gal phrase, and I say to you that is
4 substantial right which everyone is.
etitled to, that is the presumption of |
rs dea as are satisfied from
ioc ae, nue guilt beyond | a
TO? HO.

The Court further charged: .

sos dafceitant is entitled to any
cia : e doubt arising in the whole .,
ee arising on any defenses. that _
¥ have been set up by the defendant.
hinccea whole casé you ‘have a
seen doubt as to the guilt of the’
am see he is entitled to that ‘doubt
ee be entitled to an acquittal.
“i ise, 1f you have a reasonable
a tn to whether or not the defend-
liveds es out his defenses, then’
¢ entitled to that reasonable

The trial ‘Jidge ‘in ‘charging the' ‘jury

erated:

‘doubt! > When ‘I use the term ‘reason-::.'

+

“able ‘doubt? I do not mean by that

“some whimsical or imaginary doubt. :)

“It is'not a weak doubt.’ It is not a

Hai caer
slight doubt. But it is a substantial ~

‘doubt, a doubt for which you can give |
‘a reason”, i OLEH

The charge merely states a rule of evi-
dence based upon the presumption of inno-
eg a does not come within the inhibi-
ion. of the Constitution. . State v. Phili

ae ilips,
73 S.C. 236, 53 S.E. 370, 371. This Court
in that case disposed of a similar question

' in the following language: “In properly

defining a reasonable doubt, it cannot be
successfully contended that the presiding

judge charged upon the facts.”

The above-quoted charge by the Court
correctly states the law of this State and
in’ no way violates the: Constitution. of
South Carolina, which prohibits the. trial
Judge from charging on the facts.

[9] 6. Was the trial Judge in error
in charging the law upon the reputation
of the defendant when his reputation was
not’placed in evidence?

While appellant did ‘not place in issue

- his reputation. by offering, character wit-

nesses, the record does reveal some evi-
dence of good reputation.- When the wit-
nesses, Mr..and Mrs, Celeman, . former

, employers of appellant, were on the stand,

appellant’s attorneys developed on cross-

; €xamination that he, was trustworthy, cour-

tcous and reliable. All of which went to
his good reputation. The trial court in-

; structed the jury as to the law -of. good
- Teputation, . instead af.such portion of

the court’s charge being prejudicial, it was
beneficial to appellant and. would under
no view of the matter constitute prejudicial
error. “4

[10] 7. _Did His Honor, the presiding
Judge, err in not granting the motion for
a change of venue? %

The recent case of State v: Gantt: 2

F ‘ » 223
S.C: 431, 76 S.E.2d 674) reaffirms: the law
of this State as to such’ motion. In the
absence of a showing’ of abuse of discre-

291

UNIVERSITY OF ALABAMA

SCHOOL OF Law


286 W. Va.

The defendant May, on the hearing be-
fore the trial court on the motion to set
aside the default judgment, tendered evi-
dence for the purpose of establishing facts
which would show that he had a good de-
fense to the action against him, The trial
court, upon objection of plaintiff, refused
to consider such evidence for the reason
that defendant was not required to “do
more than specify those grounds of de-
fense”. There is some confusion in the
opinions of this Court as to whether a
defendant, on a hearing to set aside a
default judgment, must, in order to prevail,
establish that he probably has a good de-
fense to the action against him, See

87 SOUTH EASTERN REPORTER, 24 SERIES

Winona National Bank v. Fridley, supra
Arnold v. Reynolds, supra; Black v. Foley
supra; State ex rel. Alkire v. ‘Mili, supra
Gainer v. Smith, supra. We need not here
resolve the question, since, assuming suck
a showing to be necessary, the error is
refusing to permit the defendant to show
a good defense to the merits of the actios
was induced by the plaintiff.

The judgment of the Circuit Court ¢
Raleigh County is reversed, the verdict od
the jury is set aside, and the case 1s ff
manded for further proceedings to be had =
accordance with this opinion.

: 3 ,
Reversed; verdict set aside; remanded

i
3
.
/
4
'

STATE v. FULLER <= 8: C. .. 98%

Cite as 87 S.E.2d 287

The STATE, Respondent, - ,
v.
Raymond FULLER, Appellant.
No. 16996.

Supreme Court of South Carolina.
May 4, 1955.

Prosecution for murder. The General
Sessions Court, Spartanburg County, G.
Muncan Bellinger, J., entered judgment of
remviction. Accused appealed. The Su-
preme Court held that where accused did
sot testify, and court did not instruct that
ws failure to testify should not be con-
wlered against him, instruction that jury
‘ould take into consideration whether or
t there had been any contradiction of any
material testimony or witness by testimony
“any other witness, directed attention to
wented’s failure to testify in contradiction
testimony concerning a confession by
wm, and was prejudicial error.

Judgment reversed and cause remanded
te new trial.

& Criminal Law €=517(1)

A confession is not admissible in a
Pesecution unless it is voluntary.

§ Criminal Law €531(1)

Burden rests upon the state to show
®st a confession is voluntary and there is

™ presumption of law that it was volun-
ery.

& Criminal Law ©3531 (2)

: Where questions asked witness as to
“stariness of accused’s confession in
Perrcution for murder contained a cate-
Prxcal inquiry into substantive facts neces-
™) to be affirmatively established by state,
Pons were proper, and not leading and
ef oe merely state a conclusion rather than
*eremstances under which alleged con-

™ was obtained.

© Criminal Law C532

In prosecution for murder, where ac-
eet had right and opportunity, both in

absence of jury and in its presence, by either
cross-examination or direct testimony, to
question admissibility of alleged confession,
trial court protected rights of accused in
admission of alleged confession.

5. Witnesses €=267

More Istitude is allowed on cross-exam-
ination than on direct examination of a
witness, and the scope of such examination
is largely discretionary with the trial court.

6. Criminal Law ©=489

Where physician who testified in be-
half of accused in prosecution for murder
gave opinion as to mental condition of ac-
cused, prosecutor, on cross-examination,
could inquire into source of information up-
on which opinion was based for purpose of
determining weight to be given to it.

7. Criminal Law €=489

In prosecution for murder, where pros-
ecutor’s cross-examination of physician
who testified in behalf of accused was
based on testimony in record, except on
question as to accused’s church attendance,
and such guestion was stricken by court,
cross-exaniiration was proper.

8. Criminal aw © 763(24), 789(2)

In prosecution for murder, court’s
charge on meaning of reasonable doubt cor-
rectly stated law, and did not violate arti-
cle of constitution prohibiting trial judge
from charging on facts. Const. art. 5, § 26.

9. Homicide >163(1)

In prosecution for murder, where wit-
nesses for accused stated that accused was
trustworthy, courteous and reliable, trial
court properly instructed jury as to law
of good reputation.

10. Criminai Law C=1150

In absence of showing of abuse of
discretion by trial judge in refusing to grant
motion for change of venue on ground that
defendant could not obtain fair and impar-
tial trial, Supreme Court will not inter-
fere with trial court’s ruling.

SCHOOL OF LAW

UNIVERSITY CF ALABAMA

edg) eurToreO yAnOS psqnoozqosTe OF fHoeTG ‘puowMey *uRTINT

€

Ps
&

Ps
ri
%
+
%


288. =s«S. 0. 87 SOUTH EASTERN REPORTER, 2d SERIES
court did not instruct jury that his failun
: for murder, although to testify should ne be pac Miers
Fe eee | ‘ _ him, instruction that jury shou (
jurors did rig 0 Ee ee whether or not there ~ ee a a
i bert icti terial testimony *
poi a ahso declared they were free of — ye Pa Oe hee clack
any bias or prejudice, court properly ruled on aaa accused's lalbeiaias
eh MEO et — testify in contradiction to testimony as
an alleged confession he had made, and we
prejudicial error.

11. Jury €=103(5)

12. Criminal Law €=814(17)

In prosecution for murder where state
did not rely solely upon circumstantial evi- 4g Criminal Law €71173(3)
dence, trial court did not err in failing to

: tial evidence Fact that accused charged with muré
charge law of circumstantial ¢ -

did not object to araem et —
hat his failure: to testily ol

5 charge t

13. Criminal Law €=665(1), -_ ) at ng ane wate nin hm, was of

ion of witnesses from COUT consequence where death penaity

ee matter which rests largely in enna

discretion of trial judge, and unless there is

a manifest abuse of discretion Supreme 49, Criminal Law ¢=1165(2)

Court will not interfere. When guilt is conclusively proven

competent evidence, and no rational co
‘ clusion can be reached other than that oy
In prosecution for murder, where jury go ¢endant is guilty, judgment of convich
was to determine whether accused WaS sould not be set aside because of in
guilty of murder, guilty of meres = stantial errors not affecting the result. i
recommendation of mercy, not guilty by |
reason of insanity or not guilty, prosecutor i
could attack as inconsistent accused’s de-
fense of insanity, and request for verdict
recommending him to mercy of court.

14. Criminal Law 713

5
C. Yates Brown, J. C. Mooneyham, oe
Perrin, Jr., James M. Kirby, Edward |
Perrin, Spartanburg, for appellant.
. Solicitor J. Allen Lambright, Sparta ;
In considering correctness of portion of burg, for respondent.
charge in prosecution for murder, court
viewed it in light of circumstances of trial
with regard to corroboration or contradic-
tion of witnesses in which it was received,
and presumably considered by jury.

15. Criminal Law €=1134(2)

PER CURIAM.

The original opinion in this case **
filed on August 4, 1954, and thereafter #
pellant petitioned for rehearing, which _
ae a granted for the purpose of reconsidera

In prosecution for murder, since testi- of fis Exception No, 12 only. That om
mony of physician in behalf of accused that La iy wat tov below except insotat wt
accused was mentally subnormal was not 4.41 with that exception and wit

related to defense, fact that such testimony tion No. 13, which is indirectly re
was uncorroborated was immaterial, and and as so set forth it shall stan gs
court’s erroneous charge to jury relating to judgment of this court on the issues
corroboration of testimony, in reference 3, coferred to:

er ‘ , s harmless. . .
to physician’s testimony, Was ' The appellant was tried and convicted

0
17. Criminal Law €=787(1), 1172(2) murder at the January, pas a
In prosecution for murder, where ac- General Sessions enh pial rae
cused did not testify on his own behalf, and County, and sentenced to

; Merve as evidence.

'* §TATE vy.
Cite as 87

ty law. He appeals on fourteen (14) ex-
erstions charging error to the trial court!
Tse attorneys on both sides in their briefs
tal with the exceptions in the form of
rteen questions. This Court for con-
sentence adopts these questions "

1. Was ‘the, alleged confession. of ‘the

«fendant properly. proven, to be admissiblg
m evidence?

The record reveals that in the absence
e the jury the usual questions as to whether
w not the defendant was threatened, intim-
ated or coerced in any manner; offered
“ promised anything, any inducement, or
‘oe of reward; that he did not have to
wake a statement, but that if. he. did such
tg it be used against him, were propound-
m Thereafter the Court: itself further
rsamined the witness along the same line,
WSen the jury returned, substantially the
tame examination was made in its presence,
*wrcupon the witness was- permitted. ta
weily to the alleged confession. «| ; .,.,

The Court in its instructions to the jury
*ittedly charged the law correctly as to
*fessions. Appellant by this exception
w marily complains of the form of the
testions propounded, contending that they
wt Teading and merely state.a conclusion,
“w*er than the circumstances under which
* alleged confession was obtained. |

13] A confession is not admissible
rss it is voluntary.. It necessarily fol-
fre that the burden rests upon the State
® show that it was voluntary, and that
Bere is no presumption of law that it was
Swortary. State v. Rogers, 99 S.C. 504,
WSE 971, We see no objection to the

of the questions propounded. . Each
Weston contained a categorical sinquiry |
ma substantive fact necessary to ,be

atively established by the State, be- ;

* the alleged confession would be ad- ;

rae ,
hig, tof

) The appellant had thesright ‘and
“Portunity, both in the absence of the

|) amd in its presence, by either icross-

“sation or direct testimony, to ques:

"Se admissibility of the alluged con-
- WB E.2a—1y

FULLER2?4{2 2vU02 72 S)0: 989
S.E.2d 287

fession.." We are satisfied froni the record
that the trial Judge carefully protected the
rights‘of the appellant in the admission of
the alleged confession and_ all. statements
made by him in connection with the offense.

[5,6] 2. Was it proper for the Solici-
tor to question a witness as to alleged testi-
mony given by:another person at a former
trial of this defendant upon the same
charge? : fF

This exception complains of the cross-
examination by the Solicitor of Dr. Samuel
R. Kilgore, a witness for appellant, relative
to. "questions -propounded ‘as to how he
reached his conclusion as to the mentality
of ‘appellant. : ,

On direct examination, this witness was
asked: ° ‘

“Q. Did you, in connection with
your examination, have psychological
tests made under your instructions?
A. _ Yes, sir, I did.

“Q.. And who made those tests? A.
Mr: J. R. Hallum, our psychologist at
the Mental Hygiene: Clinic.

{

“Q. Dr. Kilgore, can you show a
comparison between the report of a
_Tadiologist to a general practitioner

-|,or surgeon, and the report of a psy-

chologist to a psychiatrist? A. Yes,

a psychiatrist utilizes psychology test- -.
ing much as an internist, or a general

practitioner utilizes X-rays, radiology

studies.

, “Q. How would that compare, the -
accuracy of the psychologist test with
the tests of a radiologist? A. In most

~/instances I would say it was at least

as:reliable, if not. more’ reliable.

“O, Did you receive a report from
the psychologist, Dr. Kilgore? A.’ I
did. . , ar

*“Q. Will you: give us briefly the

‘ contents of that report? A. Yes, the
‘first test that I shall report, I believe

it was the first one administered, was
an I. Q. test being given, the Belvue-
Welchsler, and that is our most re-

SCHOOL OF LAW

UNIVERSITY OF ALABAMA


GS, Meerter, pluck, hianzed agmettoville, 5. Coy: l-20-

¥

Lhisarligele 5. C YLOLEL Cle
: tA HKG kL Yi, Markboro (2

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, : at LAG Bos
teate Ces Lbrogalo G1.)

es Ge ATIILéaA OST

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OySeN eh, DO

gpred
lot then keep tt up
oW*badl
Wedat ex. a
eg dap

GAN | TONIGHT,
addresses the ““peo-
“night. As a

pose of ‘his

ount of -his

aa aes

‘been

wed, Vacillated and’
ycalet 55 ca
+ entrusted—the wip-
finiey tarift—yet re-
lished. ‘The: “fact is
ipty’ Js‘tn ‘ugly shape,
“, and that it is threat-
in next.’
‘ EES MAK

t APSR TS

' plain that, the:Dem-| nany advantages of the State and’ of
N tats “3 yh ditty! Abad { as

n they Senate is, main-:

y:this* unfortunate.
The,

3: |
4 iment “of ‘the

the House | push-
with suis reasonable
ocratic..; majority “sin:
ver, recived: both meas-
“az syspent over two
th® | President; about
ww “Wepeal, “and ‘is’ yet
"des: trying (to"Me
Bie 0 0) Ry oon The
imapectacle, the Demo-
‘Tythe. Senate has been
Mts" bitter antagonism
| das ‘been most. con-
‘mocratio masses made
14892, and the people
onfirmed the selection.
the Democratic major-

‘te. has -constantly.re-

id leadership, and :has

inwits power. to. em-
ikes him :'contemptibla
he country and ‘despi-

‘mocratic: masses ‘who
ust hime S59,

\ “conspicuous
sion: of the

_an,”-He fought’

12" pnerman «law ‘ well

-ee of ‘obstruction, He

four. Republicans of
‘Irs Committee in sus-
‘and. his
1 the ‘Hawallan, affair
“ident Cleveland. He

x cgmmission

Fall's. elec.

‘McKin-

TART)S

pa. Selevance whi
‘in the Republicé
| dulged in it is/lja

: gured+in spite of the machine,”
‘forth. The Courier seems to f

42g 3
are Mducements for those who ebther
desire to locwte in the county or to
make investments, in industries. The
example Is a good one which might be

well copled by other county papers In

the State, ue er. Ne OE

’ The Pledmont Inquirer ts of the opin.
fon that’ the check-maiting of IXolb lis
@ matter of time only, and gets off the
following: § ‘Kolb ‘will doubtless re-
celve a number of checks during the
campaign. He has ‘already received

others." Considering its good Intent.

and purpose, ithe pun is forgiven... .

|

«The Jasper Record does not mean to
cast' an aspergion‘on the moral char-
acter of people afflicted. with consump-
tion, but it winds * up’ a paragraph

‘against the tendency ‘of certain small
‘boys about. ‘town to engage in games '
He of a gambling tendency with this phil-

<a Gonaress is -osophic’ reflection: ‘As a cold brings
in’ Congress ‘has * ei g

about consumption, so ‘will this disease
develop a gambler.” 003.0 Lath Pot

~The Sheffield Standard, which is un-
“surpassed for. typographical’ neatness
and a general appearance Of prosperity
by any other weekly paper in the State,
devotes very little of its space to politi-
tics, much more to local affairs the

4

much. more to. articles relating .to fhe

the South, se a ey A
gig ia PRET SSE Ae a

The: Blocton Courier says: “If Capt.

‘Johnston is nominated by the Democ-:

racy for Governor—as now see

‘Kolb has the monopoly of this
talk, and it was. by indulgi
kind’ of talk which

landed ‘him
“And if: in

fice-seekers just héte Kolb now is)

trates the following: ‘A spod
small article, yet it has caus
stir than any. other little thing

“The Sumter Record ig doubtless think-
ing’ of. raising a popular subscription
monument fund: It wants to know the
name of the party who “threw a brick
at the serenaders when they wére play-
‘ing ‘After the Ball.’ mee iia 8 o4ni

ihe Pena

‘
SV

Sear ae Men

.The Carrollton’ West Alabamian “is
optimistic, to an enjoyable degree, and
consoles itself thusly: , ‘True, the peach
crop, is. gone; but think of the great
amount of pain the average smull boy
Awill not be compelled ‘to endure.” *

“us ”

elt

“onthe: Huntsville "Mercury . furnishes
Senator Hill with the following timely
and appropriate , bit of information.

It says, “Senator Hill's excuse for go-

ing back.on tariff reform policy ‘of the
party is that. conditions have changeil
sincg the “election. He will find also

; that many of his followres have also

changed with the conditions when he
offers for the Presidency.” Age Nags

°The Tallapoosa Jeffs Hold their. pri-
mary electionston the 2lst,. and The
New Era sends out this plea, “We can-
nut afford division in Reform ranks,”
The New Era is right to be alarmed,

and no doubt. sees that reform is bad-

} try 9 moe Vere 6 Fo gbyer

several from Col; Oates, Gov. Jones and ; tude for the thorough campaign he is

Jany ‘other, man for any other man.

Viand that is”ehough. he truest kind of
4:1 Democrat& shod not offer for a third
‘| ter anywhewé or under any considera-
tion,|ainless it be that there cannot be

f npéther man for the office. Be-
sides) wé want a man for State Superin-

‘Johnston much,

Sumy of our people say, “hadn't we
better take Johuston for the sake of
harmony’ Ilarmony just now means
sactilice, not of our individual interest,
but of Democratic principles, and the

more sacrifices We make of Denreeration srw Victim

principles’ the more work we have to

do to re-rstablish them, Let us stand

squarely on the platform and for Oates,

its greatest Southern exponent.

A Debt of Gratitude.

Ozark Star. AS :
The Democratic Party of Alabama

owes’ Colonel Oates a debt of grati-

making in the State, At each of his
appointments there are Kolb men who
hear him and are convinced that they
can follow him no longer, and openly
denounce Kolb and express their de-
termination to return to Pemocracy. —

Tahastad In Deep Distress. é
Stevenson Chronicle. tg a ae
The friends of Captain Johnston must
be in deep-distress ‘when they invoke:
Senator Morgan’s name to help their
candidate. They have no right to make
the -assertion that Johnston’s defeat’
means Morgan’s defeat. Colonel Oates.
has declared from the stump that he is
engaged in no.deal against Senator.
Morgan, but that he is making his ¢an-
vasa for Governor separate and distinct
from’ the ambitions: and candidacy of

“

Speeches Thnot Contirm the olbites,
Huntsville Argus. © “ees :

This brings us to a very seriou
tion. Are -these speeches. of Ca
calculated to bring
o.the Democratic fold?
tend to confirm them

Pen’ them in ‘thelr ‘o

: § Enough. :
 rewton: Standard#<Gauge.
Major Harris hag- served two terms

ténddnt of Educatior if possible who is
d to--these thieving normal
schools. By the way, isn’t it about time
for Major Harris» to open up Sunday
school exercises in Brewton?

“"\ poes Ne Trim His Salls?
Talladega News Reporter.

Captain Johnston’s Roanoke’ speech |" |

is strongly -inconsistent with his ut-
terances in North Alabama. As re-
ported, he there endorsed the adminis-
tration on the silver question, while
everybody: here Knows he has loudly
protested against Cleveland in that and |
other matters. Can it be that Captain!
Johnston trims his sails to the breeze?
This Is.an unfortunate tack, The peo-
ple cun stand anything better than in-
sincerity, Just now.. + N ?
a

Nich’s Supporters Logicully for Oates
DWutaw Mirror. , nee

Ax to “who he came down in favor
of,’: as is usually ,asked, he says it
fs in favor of the. Democratic party,
and we have no doubt it is that way,
jn so far as the is concerned. Men of
his stamp would spurn any personal
honor that came at the expense of the
Democratic party. But, as to the
practical results, it appears to us that
Ccicnel Oates, will or ought’to be, the
gainer, ~Colonel Oates and Mr. Rich
atend in line with President and those
wh) uphold his administration, as op-
posed to Captain Johnston who opposes
the policies of the President and wants
to win votes from the opposition by a
conciliatory policey..on the financial
and other questions. Taking this view

{ nettsville, Marlboro County, says:

‘were both from North Carolinac of stics
A yeas gt 2 te er 4

ftythe their {pride [vy

.charged with. white-capping

ot it we cannot see how the friends
of Rieh ean go to Tolneton withont

Alexandenyriolackynhancged,R Ss ‘tteyt- Oe fms OR 7 )
: PD p tT Ml ly haneed Reane ttsville, Soe Ap Rad wey iD Oleonent Iw,

here is ulso talle of the Hlute asking
tor a rehearing of the case. » oe te eee

‘ (sie
EDWARD'S” CRIMM.O YAY

Lived Long Knouxh to
— Tel Who Wis Assnitant Was,
Charleston, S. C., April 20.—A special

to Thé News and Couricr from Bens

Bia 5 ee

exander Iedwards, colored, aged - 33
years, was hanged {n Mariboro: County
jail at noon today for the murder of
James ‘Burnett. colored. . The con-
demned man was tried last February in
the. Court of General Sessions and gen-:
tenced by Judge ‘Aldrich.
der, a most brutal one, was committed
on December 23 last, near. Clio, in this
county. Edwards, who had been ern-
ployed during the day on a farm’ near

“| Bingham, undertook to pilot Burnett to

McColl. : They traveled nearly all night
by. foot and stopped to rest in a dense
wood near Clio. They kindled\a_ firé’
and Burnett was sitting near it warm-

ing when Edwards slipped up behind’

him and, struck him two heavy. blows

on. the. head with an axe and, think-,}.
ing that he had killed his man, «he:|
‘robbed him, securing, a pistol_and ‘$5 J:
in money for his bloody crime,..Burnett} |:
“ Regaining |
consciousness, he crawled off into:the,}:
woods and when found}several days}:
later, lived long enough to accuse -Ed-"]'

however, was not dead.

wards of the murder. “Edwards: had).

protested ‘his innocence all through ‘the"|:
trial and imprisonment, but last:Mon-, ]'
day made a full confession of his-gullt,{|'

professed’ religion and, said :he.: was,
ready-to die.. Edwards and: his.victim

WHITEH.CAPPER CONFESSES. 3

roe

Ae ee eee eocnnneen,

x Good Results. yy sree,
April 20.—A ‘special’ ta
ryis, Miss., says:
‘back from
Texas last: week ‘iby... Sher

county, has made a confession, Implicat.
ing, among others, Arthur Ball, a son
of a prominent Methodist preacher of
Columbia, Miss., in the killing of a ne-
gro named Jim Pitman, who was: mur-
dered at his home near, Columbla some
time during last year. *..' art hy

Ball was arrested here yesterday. by | .:
Deputy Sheriff McClelland, Ball gave |.;
him the dodge and made good his _e8-|
All the pars}.
will be arrested, if pos-}*

cape, and is now at large.
ties implicated
sible. SUN) Sa

AN E. T.,.V. AND G. SCOOP. iN

“rommennestnre :

Yhe System Said to Wave Purehaked
. the Knoxville, Cumberland ‘Gap

and Louisville, Bonds., Viseis
Knoxville, Tenn., April 20.—It 1s Im-
possible to obtain ‘certain information
about the reported purchase of bonds
of the Knoxville, Cumberland Gap and
Louisville Railroad by ‘the East Ten-
nessee system , through Drexel,
Morgan & Co., of . New’ .York,
but the impression -is ‘that the. ru-
mor is true. It ig known that English
bond holders have been anxious to-un-
lond for the lust two or three years,
but former negotiations have all come
to naught. The Louisville and Nash-
ville has been looked upon as a possi-

ble purchaser, but as this would make ,

a way station of Middlesboro, in which
the Englishmen have been more large-
ly interested, the East Tennessee alli-
ance became the logical one. Iteceiver
McGhee of the East Tennessee con-
tents himself with saying that if the
purchases have been made he knows
nothing of it’ but does not deny possi-
bility. ‘Officials of the Cumberland Gap
will not talk, but: the Southern Asso-
ciated Press correspondent has it from
a trustworthy source that they believe
the report ‘to be true, en

PORT ROYAL'S BOOM.

Biz Vessels Loading for Ruragis,
Augusta, Ga., April 20.—A’ special to
The Chronicle from Port Royal, 5. C.,
Heres Shee ot Dyas

Jposgehtin Woevtron enfils!

Al-.

The mur-’

‘ , aaa te) Yaa We " shi. 4 a 3
Tailure”’ to Hang “Wi Purvis |
le Was Dead: Appears to Be


~ DUKES; Sams:

electrocuted South Garolina, uhily 1, 1913, foo : |

itn ores SH og 3a
bx2 eda iets
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177 SE 375.6

FLOYD, Clarence, black, electrocuted South Carolina State Prison (Lexing-
ton) on Jane 4, 1935. |

"Lexington, Aug. 10, 1933-Clarence Floyd, negro, was held here today ona
charge of ériminally attacking a young Columbia white woman at the point

of a pistol after robb&ng her male companion and forcing her from an auto-~
mobibe on a Lexington County highway. The negro said formerly to have

lived in Orangeburg County, was arrested in this county Tuesday night
August8, and placed in jail here after being taken to Columbia where fhe
young woman and man were said to have identified him as the attacker. The
two said the Negro approached their automobile Saturday night (Aug. 5), |
drew a pistol and robbed the man, tied his hands, and still flourishine
the pistol, forced the young woman from the car and attack ked ner. The

young man also is a Columbian, S@licitor T. C. Callison said two other
robberies in the same vicinity were being investigated to determine if

the negro had any connection with them. Columbia police said yesterday

an Orangeburg negro giving the name of Clarence Floyd 1 jas held in jail

at Lexington charged with criminally assaulting a young white girl at

the point of a pistol and robbing her male companion. Sheriff H. Cromer
Oswald of Lexington County said the negro was in jail but he did not know
definitely what the charges against him were, Chief of Police W. H. Raw-
linson of Columbia, whose force assisted in investigating the case, said

the negro was arrested Tuesday night in Lexington County by a magistrate's
constable, Rawlinson said he was told the Negro went up an automobile
occupied by the young woman and man in Lexington County Saturday night, |
pointed a pistol at the man, ordered him out of the car and robbed him. |
The negro, Chief Rawlinson gid he was told, then tied the man's hands

behind his back, and still flourishing the pistol, attacked the young
woman," STATE, Columbia, 5, C,, Aug. ll, 1933.

~ CLARENCE FLOYD
(electrocuted | S.C, State Prison on L195 (lexington)

i eat ane Seg Bt , os nee Saad
"Lexington, N. Cy aust 10, 1933-Clarence Floyd,: negro, was held here today on a oharce of é
criminally attacking a wybung Columbia white woman at the point of a pistol after robbing her —
male companion and forcing her from an automobile on a Lexington County highway.
~ "The Negro, waid formerly to have lived in Orangeburg County, was arrested in this county ey
Tuesday night (August 8) and placed gn jail here after being taken to Columbia where the youn,

woman and man were said to have ideritified him as the attacker, —
"The two said the Negro approached their automobile Saturday night Chigast 5), tren a “pistol
‘and robbed the man, tied his hands, and, still flourishing the pistol, forces the young woman —
from the car and attacked her. The young man also is a Columbian,
"Solicitor T. C. Callison said two other robberies in the same Se, were being investigated
“to determine if the Negro had any connection with them -
"Columbia police said yesterday an Orangeburg Negro giving the name of Clarence Floyd was held
in jail at Lexington charged with criminally assqult ing a young white girl at the point of a
_ pistol and robbing her male companion ,
‘Sheriff H, Cromer Oswald of Lexington County, ‘said the. negro was to jail but he did not Kno see
definitely what the charges against him were.
“Chief of Police W. H, Rawlinson of Columbia, whose Toree eeatated in davestigating the cases
‘said the Negro was arrested Tuesday night in Lexington County by a magistrate's constable.
“Rawlinson said he was told the Negro went up to an aumtomobile tccupied the young woman and
man in Lexington County ea ur ey Aghts pointed a pistol at the many ordered him ony of the car
and robbed him, fe eS
"She Negro, Chief Rawlinson eed 1e was “told, then tied the man's hands behind his Loved and
aoe alt A telat Beater Eee ibe. Jone woman,"


810 S.C.

counsel had not summoned any witnesses,
nor had he placed in the hands of the sheriff
or other officer any subpoenas, nor had he
requested the sheriff to procure the attend-
ance of any witness. Appellant's counsel did
not state the nature of the testimony he
expected to prove by #he witnesses desired,
or offer to make any showing as to whether
or not the testimony of any such witness was
material. Upon request of the presiding
judge, Mr. Stone then furnished the names
‘of three witnesses whose presence he de-
sired, stating that they all resided in Green-
ville. The presiding judge then ordered the
issuance of bench warrants for the persons
so named, and the sheriff's deputy left im-
mediately for Greenville to get these witness-
es. Two of these witnesses were brouzsht to
court and testified in appellant’s behalf when
“called by the defense. Appellants’ counsel
also moved the court for a change of venue,
stating as a ground therefor that there was a
great deal of fecling adverse to the appel-
lant, which statement he based upon the faet
that the courtroom was crowded. No notice
of this motion had been previously given the
state, and no aflidavits were submitted in
support of the motion then made. There
were more spectators present than could be
comfortably seated, and the court directed
the sheriff to exclude all whom he could not
seat, and his honor stated that he saw no
evidence of any fecling adverse to the ap-
pellant. soth. of appellant’s motions were
then. overruled, and the trial as to the ap-
pellant and Darnell procecded before a jury
with his Honor, Judge T. S. Sease, presid-
ing.

At the close of all the testimony the court
direvted a verdict of “not guilty” as to the
defendant Darnell and the jury returned a
verdict of guilty as to the defendant Albert
Floyd. After hearing and overruling a mo-
tidh’ for a new trial, made upon the minutes
of'the court (the grounds of the motion and
the'court’s ruling thereon being hereinafter
sét forth in full), the presiding judge pro-
nounced the death sentence upon Albert
Floyd, sentencing him to die by electrocu-
tion on the 12th day of December, 1930,
Within due time the appellant served notice
of intention to appeal from this sentence and
judgment, and now appeals upon the excep-
tious hereinafter set forth.

Testimony.

The following is a brief summary of the
material testimony offered by the state: Dr.
John I. Green testified that he held an au-
topsy on the dead body of Howard Bell on
the night of September 29, 1930, and that his
examination revealed several severe wounds
on the head, some of which broke the skin
and fractured the skull and were inflicted
by blows with a sharp or blunt instrument;
that the back of the skull was fractured;

158 SOUTH EASTERN REPORTER

that he also found very prominent bruises
on the neck, clearly showing the prints of
fingers and that deceased had been choked
with the left hand of his assailant; that the
wounds so found were sufficient to, and did,
cause the death of the deceased.

A, B. Beard testified: “I am a constable at
Clearwater, Howard Bell and his wife, Mamie
Bell, lived at Clearwater and he worked at
the mill as a mechanic. About 10:30 o'clock
on the night of September 29, 1930, pursnant
to a message reeeived, I went up the Aiken-
Augusta Highway above the town of Clear-
water about two miles from Howard L[ell’s
house and there found Howard Bell’s dead
body in his own automobile. The car was
an old model Ford Roadster and the top
was laying back. It was just a little off
the road facing back towards Clearwater,
headed towards and near a deep gulley. One
wheel was in a slight wash-out place and the
axle was on the ground. One fender was
bent back and the windshield was broken but
there was no evidence of the car having been
turned over. The dead body was under the
steering-wheel on the seat. There was a lot
of fresh blood on the seat and a little splatter-
ed blood on the top, which was laying back.
There was no blood on the running board or
anywhere on the outside of the car. There ts
a small garage in the yard of the Bell home,
which has a little tool room at the front on
the left as you enter the garage. In our
investigation of the Bell premises, Sheri!
Howard, the Coroner and I found several pice-
es of broken glass in the back of the garage on
the floor which pieces of glass fitted in and
corresponded withthe broken windshield of
the Bell car. There was no blood stains or
any where around the garage, nor was there
any signs of scullling in the yard or around
the garage. I talked to Mrs. Bell soon after
the dead body of her husband was found and
she did not say anything about how the killing
occurred, or that she had any knowledge
of it.”

“Sheriff J. P. Noward, Coroner J. T. Tarver
and others ‘testified substantially as did A.
BB. Beard as to where the dead body of Bell
was found, the condition of the ear, as to
the blood in the car and none on the outside
of it, finding broken parts of the windshield
in the back of the garage, and as to the blood
stains and no evidence of scuffling in or
around the garage or yard of Bell. Sherilt
Howard also testified that Albert Ioyd, be-
fore and after his arrest, stated that he hail
never been in Aiken County and denied any
knowledge or connection with the killing of
Howard Bell.

“Other witnesses testified that Howard Bell
was a mechanic at Clearwater Mill and that
on the night he was killed they saw him
drive his Ford Roadster (with top down) to
his work at the mill; and saw him in his
car alone driving towards his home about

STATE v. FLOYD §.c. 811
158 S.E.

nine thirty o’clock that night. Some of the
witnesses also testified that they saw Albert
Floyd and Darnell late in the afternoon before
the killing as they drove near Bell's house;
that the said Albert Floyd and Darnell stop-
ped their car near the Bell home and looked
toward it for some time, apparently making
plans for something.”

Testimony of Albert Floyd: “I live at
Greenville and have known Mrs, Mamie Bell
and her husband Howard Bell, for a long
time. I have been having illicit intercourse
with Mrs. Bell over a period of several years.
Howard Bell and I were good friends, and he
never knew of the intimate relations which
Were going on between me and his wife. On
the 29th day of September about eleven o’-
clock in the morning, Floyd Darnell and I left
Greenville in a Ford car coming down this
way to look for a farm. We finally came to
Clearwater, getting there late in the after-
noon. We drove around in the mill village
and {then stopped at a filling station on the
paved road. I left the car and Darnell at
this filling station, and told Darnell to stay
there until I came back. I then walked to
Howard Bell’s house. I went to the back door
and knocked. Mrs. Bell came out and kissed
me. Howard Bell was not there, and Mrs.
Bell said he was away at work. I told her if
she was going with me to get her clothes. We
then went into the tool room at the front of
the garage, stayed in there and engaged in
illicit intercourse for about an hour before
Howard Bell drove in. As Howard Bell drove
into the garage, we.came out of the tool room
and Mrs. Bell ran. As I was coming out of
the door of the tool room, Howard Bell struck
at me with an iron pipe. Le did not hurt me,
I took the iron pipe away from him and struck
him on the head with it, and he fell back in
the seat of the car. I struck him some more
with the iron and I choked him with my
left hand until I knew he was dead. Mrs.
3ell came back and said what have you done,
and I told her that ‘I have killed this men.’
She then told me to get him away from there.
There was blood on my sleeves, and I went in-
to Bell’s house and Mrs. Bell tried to help me
wash it off. We could not wash all of the
blood off, and I cut by shirt sleeves off to get
rid of the blood. The iron I killed him with
had blood on it, and I threw it into the pond
near the house. You can find it there now.
Mrs. Bell told me which way to go to bide
his body. I cranked up the car and got be-
tween the dead man and the steering wheel,
and put a sack between me and the dead
man to keep the blood from getting on my
back. The way I had him fixed behind me in
the seat nobody could see him as I drove along
the road. I then backed the car out of the
garage and drove out of the mill village to
the paved highway, and followed the paved
highway towards Augusta. After I crossed
a bridge on the highway beyond Clearwater,

I turned off the highway, into what I thought
was a little road but ran into a washout or
something which stalled the car. I could not
get the car out, and left it there where you
found it. Darnell picked me up on the bigh-
way and we drove on back to Greenville that
night. It was necessary for me to do what I
did in order to save my own life or to save
myself from serious bodily harm.”

Testimony of Mamie Bell: “I am the wid-
ow of Howard Bell. We were living at Clear-
water in Aiken County when my husband was
Killed, and had been living there for about
one year. Prior to that time we had been
living at Greenville. My husband was a
mechanic by trade and was employed at the
Clearwater Mills at the time of his death. IL
have known Albert Iloyd for a long time, and
have been intimate with him for many years.
On the night of September 29th my husband
went back to do some mechanical work at
the mill. He drove his car, which was an
old Ford Roadster with top down. Albert
Floyd came by my house about eight thirty
o’clock, and told me he was going to kill my
husband. I asked him not to do that, and he
threatened to kill me if I made any outcry or
told any one. I went with him in the tool
room at the garage and we stayed there until
about nine o’clock. I stayed in there with
him because I was afraid he would kill me
if I refused. When my husband drove his
car into the garage, Albert Floyd and I were
in the tool room. As he drove in Albert Floyd
Struck him on the head with a piece of iron.
My husband had not gotten out of the car,
but was sitting under the steering wheel at
the time Albert struck him, and he never got
out of the car. After he had killed my hus-
band, Albert Floyd got into the car and drove
it away, carrying the dead body with him.
And I did not sce him any more that night.
I did not warn my husband not to come into
the garage or call any one because I was
afraid Albert Floyd would kill me. And I
never told the oflicers or anyone how my hus-
band was killed until after I knew that Albert

Floyd was in jail.”

KR. G. Stone, of Greenville, for appellant.

B. D. Carter, ‘Sol., of Bamberg, for the
State.

BLEASB, C. J.

Albert Floyd, Floyd’ Darnell, and Mamie
Bell were indicted for the murder of Howard
Bell, ‘the husband of the last named, by the
grand jury of Aiken county. It seems that
Darnell and the woman were also charged in
the indictment with accessory before the fact
and accessory after the fact to the murder,
Floyd being named in such counts as the
principal in the crime. Floyd and Darnell
were tried together. Mamie Bell testified in
that case us a witness for the state. Ina lat-


‘R12 8.C.

‘er trial, she was convicted of accessory after
the fact.

In the trial, which we are called upon to
review, the presiding judge directed a ver-
dict of acquittal in favor of Darnell. Albert
Floyd was found guilty by the jury without
recommendation to merey, and wags sen-
tenced to death by electrocution. From the
conviction and sentence, he has appealed, and
on three exceptions for our considera-
tion.

[1-3] The appellant, in his first exception,
charges error on the part of the presiding
judge in not granting his motion for a con-
tinuance. The grounds, as stated by appel-
lant’s counsel, were lack of time to prepare
the case for trial and the absence of witness-
es. The record shows that there was no com-
pliance whatever with the rule of the court
as to the continuance of cases, for the reason
that witnesses were not in attendance. No
aflidavit showing the materiality of the evi-
dence of the witnesses desired to be present,
and that proper efforts had been made to se-
cure their attendance, was submitted. In ad-
dition, it clearly appears that the court did
all that it could to aid the appellant, even
when there had not been due diligence exer-
cised before him or his counsel to secure the
attendance of the desired witnesses. Two of
the three witnesses, whom the appellant
wished to testify in his behalf, were secured
and did testify. The third person he desired
as a witness did not attend the trial, but
there was at no time any showing as to what
this person would have testified to had he
been present. We cannot assume that the
evidence of this person would have been bene-
ficial to the appellant or would have changed
the result of his trial in any way, unless
there was some showing as to the evidence he
would have given. Not only did the presiding
judge do all in his power to give the appellant
the benefit of any testimony he might adduce
in his behalf, but the solicitor, in charge of
the prosecution, showed the appellant proper
consideration. That oflicer, after appellant's
counsel had consented to a trial on Thursday
of the first week of the term, voluntarily had
the case put down for trial for the succecd-
ing Monday. The granting or refusing of con-
tinuances is left largely to the diserction of
the trial judge. See State v. Francis, 152 8.
C. 17, 149 8S. FE. 348, 70 A. L. R. 1183, one of
the recent cases relating to continuances,
After a very careful examination of the ree-
ord, we are certainly unable to find any abuse
of the discretion allowed to him by the trial
judge in this case. On the contrary, the dis-
cretion of the court was exercised very much
in the appellant’s favor.

[4,6] The appellant’s second exception re-
lates to the refusal of the presiding Judge to
grant his motion for a change of venue.
Again, there was absolute failure on the part

158 SOUTH EASTERN REPORTER

of the appellant to comply with the law as
to changing the place of trial, since no no-
tice of the application was given to the soHci-
tor and no affidavit, showing that a fair and
impartial trial could not be had in Aiken
County, was submitted. See section 34, vol. 1,
Code 1922. Only at the last minute, when
the appellant was about to face a jury of
his country, was any claim, made that he
could not obtain a fair trial in Aiken coun-
ty, the proper county for the trial of the
cause. The motion for a change of venue,
without the preliminary requirements there-
for, was based only on the statement of coun-
sel in open court. Even then, there was no
offer to support the motion with any kind of
evidence. The presiding judge had the same
opportunity as that given to appellant's couii-
sel to observe the conduct of the audience.
He has held the office of circuit judge for
many years, and, previous to his service on
the bench, for a long time he was a circuit
solicitor. This court may rest assured that
the judge who ‘presided at the trial of this
case would have quickly detected any indica-
tions in the courtroom that the appellant
could not receive a fair and impartial trial of
his case; and if the judge had thought there
was doubt about the matter, he would have
inquired further into it. Motions to change
the venue rest much within the discretion of
the trial court, and only when it manifestly
appears that there was an erroneous exercise
of that discretion will this court interfere.
See State v. Davis, 188 S. C. 532, 187 S. E.
139. We are unable to find any merit in the
exception under consideration.

[6,7] The third exception says that the
presiding judge should have granted a new
trial because the jury disregarded certain in-
structions given them in the charge. The lan-
guage referred to was as follows: “I instruct
you gentlemen that the defendant is not on
trial for immorality or adultery. He is on
trial for murder and that includes the charge
of manslaughter.”

Counsel for the appellant express the view
that the jury did try the appellant for his im-
moral conduct with the wife of the deceased,
and failed to give proper consideration to his
alleged claim that he slew Bell in defense of
his own life. The jury properly considered
the circumstances under which the killing
took place. The law of self-defense requires
the one who pleads it to show that he was
without fault in bringing on the dilliculty.
The jury, in ascertaining the truth as to the
crime alleged against the appellant, and his
defense to that crime, were clearly right in
reaching the conclusion that the appellant,
under the circumstances in which the killing
occurred, was not without fault in bringing
on the difliculty. The instructions of the
court, to which the appellant has referred,
contained a clear statement of one of the 4s
sues in the cause to be considered by the ju-

PONT: 1 REA es « eer SURE A al peta tng 7

-GRIFFIN vy. ALLENDALE BANK 8c. 813
158 3.E.

ry;

it was for the benefit of the appellant’ tion and receivership of bank held based on

“nd we do not see how he may complain there- valuable consideration.

at.

That great lover of justice and fair play,
the late Mr. Chief Justice Watts, for this
court, said in State vy. Bigham, 183 S. C. 491,
BL S. E. 608, G09: “It is not an open ques-
tion any longer that in a capital case this
court will take notice of any error apparent
on the record affecting the substantial rights
of the accused, even though not made 4
ground of appeal.” :

That pronouncement was approved in State
y. Hester, 187 S. C. 145, 184 S. E. 885.

With that humane principle in mind, we
have gone beyond the exceptions of the appel-
lant in this case to examine carefully for
ourselves the record brought to us of his
trial in the lower court, for the purpose of
ascertaining if in the trial there was any er-
ror so prejudicial to any legal right of the
appellant as to warrant us in granting him a
new trial. We are unable to find such error,
or, in fact, error of any kind. So far as we
are able at this distance to see, the appellant
had the fair and impartial trial guaranteed
to every citizen by the Constitution of this
state. The mercy asked in his behalf by
counsel, who, without price, have zealously
and earnestly plead for him before this court,
is not within our power to grant. We are
bound by fixed rules of the law. The record
speaks for itself. Let the statement of facts
and the synopsis of the testimony of the ap-
pellant and the witness, Mamie Bell, be re-
ported. We may add that the testimony of
that witness was corroborated in many re-
spects by circumstances developed by other
witnesses.

As painful and serious as our duty is, there
is nothing left for us to do but to perform it.
So the judgment of this court is that the
judgment of the court of general sessions of
Aiken county be, and the same is, hereby, af-
firmed.

COTHRAN, STABLER, CARTER, and
BONHAM, JJ., concur.

GRIFFIN et al. v. ALLENDALE BANK et al.
No. I3111. :

Supreme Court of South Carolina,
May 8, 1931.

!. Banks and banking G63!/.
Agreement by depositors to accept 50 per
cent. of deposits to save expense of liquida-

Bank was placed in hands of bank ex-
aminer and proceeding for appointment of
receiver instituted. In the meantime de-
positors executed agreement with officers
and directors of bank whereby, in consid-
eration of benefit to them and saving of
expense of liquidation and receivership,
depositors agreed to accept in full pay-
ment of deposits 50 per cent. of deposits.
In consideration of such discharge, bank
undertook to reopen its doors and resume
business and use all means within its pow-
er for preservation of funds in its hands
belonging to depositors, and to save for
depositors expenses attendant on court
proceedings and liquidation.

2. Banks and banking ©>63//.

Depositors accepting benefits of agree-
ment to take 50 per cent. of deposits on bank
reopening held estopped to deny validity of
agreement.

3. Banks and banking €=63!/.

Agreement by depositors to take 50 per
cent. of deposits to avoid receivership did not
deprive depositors of all claim against bank
assets over 50 per cent. of deposits.

4. Banks and banking ©77(1).

Depositors agreeing to accept 50 per cent.
of deposits on reopening of bank, but not re-
nouncing all claim in other assets of bank,
held entitled to appointment of receiver on
transfer of bank’s assets to another bank.

Bank placed in hands of bank examiner
and threatened with receivership entered
into agreement with depositors whereby
depositors agreed to relinquish 50 per
cent. of deposits to enable bank to reopen,
but did not thereby release all claims in
other assets of bank. Bank, after reopen-
ing and continuing to do business, entered
into agreement with another bank where-
by other bank assumed all liabilities of
bank, including liability to depositors, and
took over assets thereof. New bank liqui-
dated assets of bank assigned and had in
its hands assets which it was supposed to
turn over to trustee for benefit of stock-
holders of bank assigned.

Appeal from Common Pleas Circuit Court
of Allendale County; J. K. Henry, Judge.

Action by J. O. Gritlin and others against
the Allendale Bank and others. From an or-
der refusing application for appointment of
a receiver, plaintiffs appeal.

Reversed and remanded.

Brown & Bush and Thos. M. Boulware,
all of Barnwell, for appellants.

€=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


VERSITY

ie § |

we ee

466 S.C.

ment to be meted out to the accused
and whose opinion as to guilt is: so
fixed that it would take evidence on the
part of the accused qualified to serve?”

[1,2] “* * * Under the law of this
state, the test is mental capacity or the want
of it sufficient to distinguish moral or legal
right from moral or legal wrong, and to
recognize the particular act charged as
morally or legally wrong.” State v. Jack-
son, 87 S.C. 407, 69 S.E. 883, 886; State v.
Gardner, 219 S.C. 97, 64 S.E.2d 130. See
also, State v. Bundy, 24 S.C. 439; State v.
McGill, 191 S.C. 1, 3 S.E.2d 257. And in
State v. Hawkins, 121 S.C. 290, 114 S.E.
538, 27 A.L.R. 1083, this Court held that up-
on trial of a criminal case, the presumption
of incapacity to commit crime, arising from
the evidence that the defendant had the
mentality of one under fourteen years of
age, obtains only when it has been shown
that the defendant has not lived fourteen
years,

(3] This Court reaffirmed the forego-
ing principle, in the comparatively recent
case of State v. Gilstrap, 205 S.C. 412, 32
S.E.2d 163, 167, stating:

“After mature consideration, we
firmly adhere to the rule so forcibly ex-
pressed in State vs. Levelle, supra; and
we may add that the doctrine that a
criminal act may be excused or mitigat-
ed because prompted by an irresistible
impulse, where the offender has the
mental capacity to appreciate his legal
and moral duty in respect to it, has no
place in the law.”

Appellant also contends that he was de-
prived of the opportunity of having the
jury consider his mental ability as to having
wilfully and with malice aforethought taken
the life of the deceased as charged in the
indictment in that the trial Judge refused
to charge as follows:

“The State of South Carolina in this
indictment charges the Defendant with
murder. Murder is the killing of any
person with malice aforethought, either
expressed or implied. You will note
from this definition, Mr. Foreman and

93 SOUTH EASTERN REPORTER, 2d SERIES

gentlemen of the jury, that one of the
principle elements of the crime of mur-
der is that the killing must have been
done with malice aforethought. Malice
is a term of art, importing wickedness
and hatred, and a determination to do
what one man knows to be wrong, and
without just cause or excuse or legal
provocation. In connection with this, I
charge you that you may take into con-
sideration whether or not the defendant
was mentally capable of having malice.
If you should have a reasonable doubt
as to whether or not the Defendant had
malice at the time of the fatal encount-
er, it would be your duty to resolve
that doubt in his favor.”

The Court’s instructions to the jury ap-
pear in full in the transcript of record and
are clear and free from error.

After charging the jury as to the pre-
sumption of innocence and defining reason-
able doubt, he proceeded to charge as fol-
lows:

“x %* %* -Murder is the killing of
any person with malice aforethought,
either expressed or implied, In order
to convict the defendant of murder the
State must not only prove that the de-
fendant killed the deceased, but must
also show that it was done with malice
aforethought, and such proof must be
beyond a reasonable doubt.

“Malice is defined.as being hatred
or ill-will. Malice is wrongful intent
to injure another person. It indicates
a wicked or depraved spirit intent on
doing wrong. Malice is a legal term
implying wickedness and excluding a
just cause or excuse. The term malice
indicates a formed purpose and design
to do a wrongful act under the circum-
stances that exclude any legal right to
do it.

“Now, you observe that malice may
be expressed or implied. This does not
indicate two different types of malice.
It merely indicates two different means
of proving or establishing malice. The
terms do not indicate different degrees.

STATE v. FULLER © ©. - S.C. 467
Cite as 93 8.H.2d 463

“I charge you that expressed malice
is where a person kills another with
a sedate, deliberate mind and formed
design, such formed design being evi-
denced by external circumstances dis-
closing the inward intention. Malice
describes a state of mind and it may,
be proved by external circumstances,
and when proved by external circum-
stances, we call it expressed ‘malice.

“I charge you that implied malice is
presumed from the use of a deadly
weapon, or from the wilful, deliberate
and intentional doing of an unlawful
act without just cause or excuse. If
facts are proved sufficient to raise a
presumption of malice, such a pre-
sumption would be rebuttable, and it
is always for the jury to determine
from all of the evidence in the case
whether or not malice has been proved
beyond a reasonable doubt, (Emphasis
ours.)

“Now, gentlemen, you will observe
in the definition of the term ‘murder’
there must be malice aforethought.
Even though malice must be afore-
thought, the law does not require that
the malice must exist for any appre-
ciable length of time before the com-
mission of the act. However, there
must be a combination of the evil in-
tent and of the act producing the re-
sult.”

[4] We see no error therein. When
the charge is taken as a whole, we are of
opinion Appellant is not entitled to one
more favorable under the decisions of this
Court and that questions one, two, and
three should. be resolved against Appel-
lant’s contentions.

[5,6] The Fourth question imputes er-
ror on the part of the trial Judge in refus-
ing Appellant’s motion for a change of
venue. In the absence of a showing of
abuse of discretion by the trial Judge in
refusing to grant a motion for a change
of venue on the ground that defendant
could not obtain a fair and impartial trial,
this Court will not interfere with the trial

Court’s ruling, and we find no such show-
ing in this case. State v. Goodwin, 127
S.C. 107, 120 S.E. 496; State v. Francis,
152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133;
State v. Fuller, 227 S.C. 138, 87 S.E.2d
287. E

In the fifth and last question, it is con-
tended that the trial Court erred in not
dismissing for cause a prospective juror,
W. R. Cox. The prospective juror, upon
being examined on his voir dire, stated that
from newspaper accounts he had formed
an opinion as to Appellant’s guilt and pun-
ishment and that it would take testimony
to change this opinion, but he was not
conscious-of any bias or prejudice for or
agaiast Appellant and could give the State
and the defendant a fair and impartial
tria! based upon the evidence.

[7,8] The question of qualification of
a juror has been before this Court many
times. Whether a juror is indifferent in
a cause is a question of fact and is not
reviewable in this Court unless it should
appear that the conclusion of the Circuit
Court is wholly without evidence to sup-
port it. State v. Dodson, 16 S.C. 453;
State v. Robertson, 54 S.C. 147, 31 S.E.
868; State v. Steadman, 216 S.C. 579, 59
S.E.2d 168; State v. Gantt, 223 S.C. 431,
76 S.E.2d 674; State v. Fuller, supra. In
instant case, the juror stated that he had
formed the opinion as to guilt and pun-
ishment but was not conscious of any bias
and would render a verdict according to
the law and evidence; therefore, it cannot
be said that the ruling of the trial Judge
is without evidentiary support. Appellant
exhausted his peremptory challenges be-
fore the twelfth man was selected, but
there is no contention that any of the
jurors subsequently chosen were disquali-
fied or that Appellant was obliged to accept
them to his prejudice. This Appellant has
been tried and convicted of this charge on
three different occasions, and the news-
papers’ have carried various accounts from
time to time. To say that only such per-
sons who had never heard or read of this
case or formed an opinion thereabout
would be qualified to sit as jurors would

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468 SC

make it’most difficult to’ acquire a jury of
intelligent persons but- would tend .to:con-
fine the selection of a jury from the un-
learned and disinterested persons in the

coimmunity. §! . + 7 5 ayy

Appellant’s counsel, appointed by the
Court, have served without compensation ;
and this Court commends them for having
represented Appellant in a most commend-
able, manner. They have been successful
in. securing two new ‘trials and in every
respect have discharged the duties imposed

93 SOUTH EASTERN ;REPORTER, 2d SERIES

’)

upon.them by the Court with ability, and
fidelity, and this Court acknowledges this
service, with appreciation.

We find no'error in the isinaint and are
of opinion that the appeal should be dis-
missed and the judgment .of the. Circuit
Court affirmed, and It os So Ovdered Af-
firmed. ' 19 lat feove

STUKES, C. le OXNER and LEGGE
JJ.,, and M. M. MANN, oan ‘Aeniclate
Justice, . concur.

COUNTY SCHOOL BD, OF HANOVER COUNTY v.SHELTON Va, 469
Cite as 93 8.H.2d 469 :

198 Va. 226 ' vo v3

COUNTY SCHOOL BOARD oF F HANOVER

COUNTY. +
, eh Pee Cares 1 7h. * %
Samuel Ww. SHELTON. i> If 30%

ti

11 Supreme Court of asia “ Virginia. ,.,

June 18, 1956. 692 © © bits

Rehearing Denied Sept. 4, 1956. |

Suit ‘to ‘enjoin cotmty~ school ‘board

from experiding proceeds from’ sale ‘of

school bonds for any purpose’ other than
those for which issuance of such bonds was
authorized. ‘The Circuit Court of Han-
over County; Leon M. Bazile, J., rendered
a decree granting an'injunction, and de-’
fendant scltool board appealed: The’ Sul
preme Court of Appeals, Whittle, J., held’
that expenditure of proceeds from sale of
county school bonds: for the purposes for
which the issuance of such bonds was ati-
thorized became an administrative duty of
county school board not subject to inter-
ference by courts, though only racially seg-
regated schools were lawful under State
Constitution at time issuance of bonds was
authorized, whereas United States Supreme
Court thereafter determined that operation
of segregated schools was unconstitutional
and illegal.

Decree reversed and bill dismissed. ‘
{. Schools and School Districts e972)

Where issuance of county school bonds
for construction, improvement, and equip-
ment of schools for white and Negro chil-
dren was authorized at election held in

‘July, 1953, subsequent Supreme Court de-

cision that operation of racially segregated

schools is unconstitutional and illegal did

not so change the purposes for which such

school bonds were voted. as to invalidate

-_ bond issue.. Code 1950, Ke: 22-168 to
2-178; Const. § 140.

2. Schools and School Districts €=110

Proceeds from school bond issue can-
not be used for purposes other than those
substantially authorized. Code 1950, §§
22-168 to 22-178. '

+ 3,.Injunction €=88 |;
Jenene and School Districts e=1t0

‘Where issuance ‘of county school bonds
for construction; improvement, ‘and equip-*

ment of schools for white and Negro school

’ children was atithorized at election held in

’ July, 1953, expenditure of proceeds from
sale of such bonds ‘for the purposes stated
became an administrative duty of county
school board and could not be enjoined or
interfered with by court, though only ra-
cially segregated schools were lawful un-
der State Constitution at time issuance of
bords was authorized, whereas United
States Supreme Court thereafter deter-
mined that, operation of, segregated schools
was _ unconstitutional and, illegal, Code
1950, 88, 22-168 to 22-178; Const. § 140.

Robert R. Gwathmey, III, and Melvin
Wallinger, Richmond, for appellant. 4

“Louis S. Herrink, Jr., Richmond, and S.
W. Shelton, Hanover, for appellee.

Before HUDGINS, C. J., and’ EGGLE-
STON, SPRATLEY,’ BUCHANAN,
MILLER, SMITH and WHITTLE, JJ.

. WHITTLE, Justice.

Samuel W. Shelton, as “a resident, free-
holder and tax payer” filed a bill for an
injunction in the Circuit Court of Han-
over County against the County School
Board, in which he sought perpetually to
enjoin the Board “from spending the pro-
ceeds” from a school bond issue.

The Board filed.a demurrer and an-
Swer to the bill, and the case was submit-
ted on the pleadings and a stipulation. The
final decree overruled the demurrer and
granted the relief prayed for, to which we
awarded the Board an appeal.

The bill conceded that the procecdings -

authorizing the bond issue were regular
and in accordance with the Virginia stat-
utes, namely, §§ 22-168 to 22-178, inclu-
sive, Code of Virginia, 1950. It was al-
leged, however, that in view of the law as
it then existed and the wording of the bal-

ass

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FISHER, Jefn & Lavinia &
HWYWARD, William :

Where the Murderers Were Confined

The grim, gray old Charleston County Jail, where John and Lavinia Fisher, keepers of the
from which John Fisher escaped for twenty-four hours

The \n

Inn of Death, were imprisoned, an
se of freedom.

ISITORS to the Charleston,

South Carolina, Museum still

pause before a human skeleton.
Its card states that although popular
belief regards it as the skeleton of Mrs. Lavinia Fisher,
hanged with her husband for highway robbery in 1820,
this belief is only a popular myth.

Not only is there no substantiation for such belief,
but a dozen facts disprove it. The local papers of Janu-
ary and February, 1820, describe John and Lavinia
Fisher as “two strikingly tall and stately young people,”
while this frame is rather undersized.

The unfortunate couple were buried in what was then
Potter’s Field and now lies beneath a part of Charles-
ton’s business section. The museum exhibit probably
came from the dissecting rooms of the city hospitals.
But the legend still persists. It goes to show what hold
the Six-Mile House of Death—even after the passing of
one hundred and eleven years—has laid upon the imag-
ination of ‘Charleston and its people.

Examining the brittle, discolored pages of newspaper
files of that date, one comes upon many warnings like
this from The Southern Patriot:

NOTICE! Citizens be on your guard!

Following is a paragraph stating that a citizen, on the
night before, was at such and such a point “attacked
and severely beaten by ruffianly fellows.”

All evidence goes’ to show that Charleston and its

environs were in 1819 infested by gangs of “ruffianly .

fellows” who attacked, robbed, beat, and often killed,
innocent men, Paragraph after paragraph, sandwiched
in with advertisements for runaway slaves, numbers
of lottery tickets, sales of “China tea, organdies, and
ribands late arrived from England by sailing vessel,”
attest the existence of what would today: be called- “a
ring.” They could hardly be dignified as “gunmen,” for
few of them possessed firearms; but they did their
fiendish work with bludgeons, staves, and axes.

34

REAL DETECTIVE,
July, 1930

What happened to the
travelers who stayed at the
Six-mile House near
Charleston? What was the
explanation of their, dis:
‘appearance? The mystery
was solved when the bodies
and skeletons of twenty4
one victims were found
buried around the inn,

Few clues were possible at such a time. Poorly lighted
city streets—some deserted corner near the waterfron
—a cry for help. When neighbors came out of the
nearer houses, or when an officer of the law finally ar
rived, there lay a dead man—sometimes in shabb
clothes, sometimes in evening dress of the aristocrat and
society leader of the day. What to do? How to trace
the criminal? The sheriff of the time was dependent

ath,” o
‘leston

almost solely, upon volunteer help. There were no de ar Up.
tective bureaus. Nobody thought of measuring foot eige
tracks. Fingerprinting was unheard of. When dark a an tas
ness or distance swallowed up a fugitive, that was usu on AY ee
ally the end of that! wy: robbE
AKE pla

T remained for Colonel N. G.-Cleary to do what was and. obi;

as pretty a piece of detective work as was done in ou
country at that date.

He began to put two and two together and to tracq
the evil kinship of these attacks upon citizens with
strange disappearances of travelers from the upper rura
sections. Well-to-do planters and farmers were then ac
customed to come down to Charleston on horseback, oy
in roadcarts drawn by trotting horses, while behind them
followed their wagons and wagoners with cotton and
other produce to be sold. . Whenever belated, these coun;
try gentlemen put up at a roadhouse six miles out of
Charleston—at a tavern which had attained a reputa
tion for good fare and good cheer, and whose hosts wer
the young, tall, handsome, John and Lavinia Fisher.

It was noticeable that all went merrily around the
Fisher board when planters gathered there to eat and
drink and spend a night before going into the city to sell
their crops. There they made merry, and then journeyed
to market to line their pockets well. And, carrying fag
more cash than wise men carry nowadays, they rode ouj

| FISHER, John and Lavinia, whites, hanged Charleston, SC, 2=18-18204
7 2297

q ) | | ee
72x

A Day On Cooper River.

By
JOHN B. IRVING, M.D.

Enlarged and Edited By
LOUISA CHEVES STONEY :

Published Under the Auspices of
THE ST. JOHN’S HUNTING CLUB

First Edition

CHARLESTON
Printed by A. E. MILLER
No. 2§ Broad St.

SECOND EDITION

‘ ‘ . Press of
ee The R. L. Bryan Company
oe | Columbia, S. C.
; 1932

‘ain Irving, Jr.


8 A DAY ON Cooper RIvER

rick afloat on a hen-coop in Bulls Bay. The house has
“flankers” or detached wings, one on each side of the
eastern front of the main building. These were used as
usual for the master’s office and for quarters for young
bachelor visitors. The Charleston Country Club had its
home there for many years and great care was taken
of the double avenue of liveoaks. At present it is the
property of the Standard Oi] Company.

Doctor Irving does not refer to the Fisher murders,
but Judge Smith in his article on Charleston Neck (see
S. C. Hist. and Gen. Mag. XIX No. 1, p. 32), which has
been freely referred to in the present editor’s work, men-
tions them as occurring at the Four-Mile House. Even
Judge Smith falls into an error, but it must have been his
hand and not his memory, for the old records show clear-
ly that it was at Six-Mile that the Fishers had their
man-trap.

About twenty-five years ago Miss Annie M. Barnes, an .

author and a South Carolinian, living at the time in
Summerville, searched “closely the files of old Charleston
papers, the Court records and other documents,” drew
“upon the memory of an older member of the family who
had much of it from an eye witness,” and so prepared
a very full account of the terrible tragedy at the Six-
Mile House in 1819. Tradition, which is not to be disre-
' garded entirely, but is strangely obtuse in her relations
to her step-father, history, transferred this awful scene
to the innocent Four-Mile House half a century ago.
Many, however, chief among them Dr. Gabriel Manigault,
never confused the facts.

The host and hostess of the Six-Mile House in 1819
were a young couple, John Fisher and Lavinia his wife,
pleasant in manner and keeping a good inn. They were
on the main route of travel by the mail coach from
Charleston to the north, or into the city from all the
country about. Highwaymen were a danger to travellers
alone or after nightfall and many took refuge there or at
the Five-Mile House nearer to town.

In the fall and winter of 1818 there had been numer-
ous robberies along the mail line and murder with some

<tc obie i wasp ening title,

peer te sd

A Day ON Cooper RIvER

of the robberies. But some travellers vanished mysterious-
ly, never reaching their destination. Official and private
enquiries were set on foot without success, except that
the territory around the Five- and Six-Mile posts seemed
most dangerous.

One early morning Charleston was alarmed by a young
horseman without hat or coat, clattering through the
streets to the Sheriff. This man, John Peeples (supposed
to bea Georgian), having put up at the Six-Mile House,
had been awakened by the voices of John and Lavinia
Fisher and a crack in the wall enabled him to see them
busy over his wallet and his money, The woman said he
had a good horse and perhaps other valuables and in
spite of the man’s reluctance, said “she must attend to
him at breakfast.” Peeples felt sure of poison and at
dawn managed to get to his horse.

The Sheriff’s deputy, Colonel Cleary, at the head of a
squad managed to surround the Six-Mile House without
attracting attention. The Fishers were captured and with
them four other members of their band. This was ac-
complished on Saturday, February 13, 1819. Muskets,
pistols, knives and powder were found. A stolen cow was
found butchered in an outhouse. Colonel Cleary removed
his prisoners and left a Mr. Ross in charge, who was
attacked by the uncaptured members of the robber band
and almost murdered, barely escaping to the woods. That
night the house and out buildings were burned to the
ground. The Sheriff raided the Five-Mile House but be-
yond arresting several men suspected of belonging to the
gang, found nothing definite against it. But the proprietor
was forced to destroy the house.

The Fishers in jail were positively identified by John
Peeples. The attractive young woman was especially up-
set.:

When Judge Bay opened Court on March 23, 1819, the
Fishers and most of their companions were returned to
jail. Soon after one of the many searchers found'a grave,
which being officially opened, contained the body of a man
in a rough box, and that of a woman, covered with brush,
both unknown.

ip

a iall


10 A DAY ON CooPER RIVER

At the June term of court the couple were convicted
but demanded a new trial; while this was under consid-
eration, some brave and curious people opened the Six-
Mile House cellar which had been hidden by the ruins.
This cellar was beneath the former dining room and was
full of human bones. The inference was a trapdoor under
the table, conveniently situated to receive the travellers
who had taken the poison from which Peeples had
escaped.

On Monday, September 13, John Fisher and one of his
mates, Roberts, slid down a rope from the jail window
and escaped. Lavinia could not accomplish it as the rope
broke too soon, but they promised to come back for her.

In the offer of a reward of $500.00 made by Governor
Geddes’ proclamation, Fisher was described as “about
six feet high, slim made, knock-kneed, fair-complexioned,
dark hair and eyes, and about 30 years of age.” The two
men were recaptured on the next night soon after eleven.
They bought food from Mr. Bull, a grocer on South Bay,
and were so hurried that he grew suspicious and, follow-
ing them, saw them hide under a boat at Williams’ Wharf.
They were promptly caught and searching showed them
supplied with gold and a number of watches. They were
to release Mrs. Fisher and take a schooner for Matanzas.

On January 18, 1820, they were again brought to trial
before either Judge Colcock or Judge Bay. Their execu-
tion was fixed for Friday, February 4, but deferred to
Friday, February 18, that they might be brought to re-
pentence. Among the devout men and women who visited
them, Miss Barnes mentions Mrs. Matilda Wightman,
mother of the Bishop, Mrs. Magdelene Brown, Miss Selina
Smith and Miss Barnes’ grandmother. Fisher seemed
penitent but Lavinia jeered.

The Rev. Dr. Furman, pastor of the First Baptist
church, was most faithful, drove to the gallows with them
and took Fisher’s last messages, Until she was actually
taken from her cell Lavinia asserted that she would not
die. Her ravings were terrible and her husband’s efforts
to soothe her and point her to repentence were most
touching.

Siac ahaa hema ietementenseepnemnmitmar ememeasia

A DAY ON Cooper RIVER 11

They were both dressed in white and the carriage in
which they sat with Doctor Furman was closely guarded
from the immense crowd. On the gallows Lavinia shrieked
in spite of her doomed husband’s efforts. Another min-
ister, Mr. Galluchat, approaching her, she said clearly,
“Cease! I will have none of it. Save your words for others
that want them. But if you have a message you want to
send to hell give it to me; I’ll carry it.” At this minute a
paper in the Sheriff’s: hand renewed her hope of reprieve.
But he told her that she must die. And then the poor
woman prayed to Heaven for mercy on her soul.

Belmont, on Charleston N eck, was an interesting little
place passed over by Dr, Irving probably as ancient his-
tory even in his time. Here before the Revolution stood
a pleasant semi-urban residence of Chief Justice Pinck-
ney and his famous wife, Eliza Lucas Pinckney, the
introducer of indigo. Here she made the experiments in
silk-culture, of which a beautiful dress still owned by
her descendants in Charleston is a souvenir, and here she
gratified her passion for planting by making herself a
charming garden: Unfortunately the British destroyed
her house and despoiled her plantation; but later her
great-granddaughter Harriott with her husband Dr.
John E. Holbrook built a cottage there, called the Hollow
Tree, where they entertained among other celebrities,
Agassiz, and Frederika Bremer.

The camellias on this place, said to be a part of Mrs.
Pinckney’s garden, are far more likely to belong to the
Holbrook era. 7

These places on the Neck touched on the Broad Path
or Way, the present State Road, the old Indian trail be-
fore the white man came. Just below the turn-off to the
Dorchester road was the Quarter House, a tavern of very
old standing, as it is mentioned in records of 1720. Judge
Smith was told that this was one quarter of the way to
old Dorchester, but is inclined to the theory that troops
had been “quartered” there in the early days of the col-
ony. In his “History of the Turf” Dr. Irving gives an
account of the York Race Course, which was at the Quar-


r47 CHOTANKERS

supervision of their mother, Nancy. About 1794, Berryman was born to
George, II and Nancy; with Newton and Gilson, he became the third son to
carry a surname of the family.

But more sorrow came to the River Bulling when John lost his wife. Left
with two young sons, his father tried to ease his burden by giving his ‘‘beloved
Son John Foote . . . one Mulato Girl named Rachel & one Negro boy named
Eli.” John’s brother, William, was on hand to witness the deed. George,
avoiding the appearance of playing favorites among his sons, gave ‘my well
Beloved Son Wm. Foote, one Negro girl named Silva and one Negro boy
Hanibal.’’>”3 Also present at the transaction was Benjamin Hart, visiting from
North Carolina to court John’s and William’s sister Mary.

The Harts were a very respectable family in Orange County, North Carolina
especially that part that had become Caswell. Nathaniel Hart ’s land374 had
been adjacent to George Foote’s before George sold out and moved to South
Carolina. Mary had known David Hart’s son Benjamin since early childhood.
The Footes all knew that Benjamin’s Aunt Nancy Hart, the wife of his Uncle
Benjamin, had become a heroine in the Revolution, capturing a band of Tories
singlehandedly in Elbert County, Georgia, where she and the elder Benjamin
had moved from Edgefield County, South Carolina, their first home after
leaving North Carolina.3?5 By the 20th Century, Aunt Nancy’s name became
very well known in Georgia for the state named a county, its county seat, anda
state park after her to honor her heroism.376

But most famous members of the Hart family would not establish their
reputations for several decades. Thomas Hart Benton, a Senator from

373]bid., p. 598-99.

34Caswell County records show that Richard Simpson, husband of Margaret
Kincheloe Foote's sister, was given power-of-attorney by Nathaniel Hart.

The father of the elder Benjamin Hart, Thomas Hart married Susanna Rice,
another family which intermarried with the Footes. See File Numbers 405 and 406,
“Hart Genealogy”, Margret Davis Cate Collection, Fort Frederica National
Monument, National Park Service, St. Simons Island, Georgia, and Durward T. Stokes,
“Thomas Hart in North Carolina’, The North Carolina Historical Review Volume XLI,
Number 3 (Summer, 1964), p. 324-37. There were men named “Benjamin Hart” in
South Carolina 30 years before the Foote arrival and at least one contemporary who
bore the same name growing up in Fairfield County, South Carolina. See his will in Box
46, Package 1130, Richland County, South Carolina. The 1820 Census shows a
Benjamin Hart living in Lexington District, South Carolina. By that date George
Foote’s son-in-law had already moved his family to Alabama. For more on the family of
young Benjamin Hart, see an August 2, 1842 letter to Lyman C. Draper from Nathaniel
Hart, Il. Manuscript No. 271 in the Kentucky Papers, Draper Manuscripts, Wisconsin
State Historical Society, Madison, Wisconsin.

376F. Merton Coulter, ‘‘Nancy Hart, Georgia Heroine of the Revolution: The Story
of the Growth of a Tradition”, Georgia Historical Quarterly, Volume XXXIX, Number
2, June, 1955), p. 118.

PEACE 143

Missouri for 30 years and very powerful force in the nation’s destiny, was the
son of Anne Gooch, the first cousin of young Benjamin Hart. Anne Gooch
married Jesse Benton,*”’ an attorney in Caswell County who moved his family
to a plantation west of Hillsboro where Thomas Hart Benton was born and
raised. The Bentons were living here when Benjamin Hart passed through
Hillsboro on his way to South Carolina to see Mary in the early 1790s. Having
moved to Tennessee in 1799 at 17 with his mother and the rest of the family
after the death of his father nine years earlier, Tom Benton was selected as
Andrew Jackson’s aide in the War of 1812, and from the time of that
assignment, Benton continued his accomplishments until his name became a
“household word.”’

Thomas Hart Benton was not the only Hart descendant to find themselves in
very influential circles. For Lucretia, the daughter of Thomas Hart and the
niece of Benjamin’s father David, married Henry Clay of Lexington, Kentucky
in April 1799. Decades, Clay--more than any other individual--delayed the
Civil War struggle, to eventually tear apart the North and South.378

The friendships and intermarriage of the Footes and Harts could not prevent
nation-shaking incidents in Congress which would come in just a few years
between the families. For now the most earth-shaking news family members
awaited in South Carolina was answer to: ‘When will Benjamin propose to
Mary?”’

Unexpectedly, John beat his sister Mary to the altar. He apparently waited
several months after his wife’s death to remarry, selecting the beautiful
daughter of John Means and Isabella Harper who had moved to Fairfield
County from Boston a few years after the end of the Revolution. Isabella was
21 in October, 1793, when she lost her mother after whom she was named.
Her father had died a little over four years before at an advanced age in the late
1800s--72 years old.*”? John Hugh Means, Isabella’s nephew, the son of her

The records of Caswell County, North Carolina show that Jesse was one of the first
Justices of the Peace of newly formed County. George Foote accepted his Commission
from the Governor at the same time as Benton. Kendall, p. 1. For the story of Thomas
Hart Benton's childhood in North Carolina see William Nisbet Chambers, Old Bullion
Benton: Senator from the New West, (Boston: Little, Brown and Company, 1956), and
Alma Cheek Redden, A Chronicle of Two Pioneer Families: The Bentons and the Taylors of
the North.Carolina Back Country (Greensboro, N.C.: Published privately by the author,
1969).

David Hart, Nathaniel Hart and Thomas Hart, the father of Mrs. Henry Clay, were
granted land in Caswell County, North Carolina in 1778 and 1779. Thomas Hart's
grants, totaling 384 acres, sat on Country Line Creek. Kendall, pp. 10 and 11.

"'Thomas Means and some of his Descendants’ South Carolina Historical and
Genealogical Magazine, Volume VII (January, 1906), pp. 204-16. According to this
article, Isabella was born February 7,.1772.


CHOTANKERS

brother Thomas, became governor of South Carolina in 1850, serving until
1852. As a member of the ‘‘Secession” Convention from Fairfield County, he
signed the Ordinance of Secession. And a Confederate Colonel in the South
Carolina Volunteers he was mortally wounded at the second battle of
Manassas, dying two days later.38

In 1799, John Foote bought land from Samuel Moberly on Beaver Creek in
Fairfield County, moving his wife closer to her kin.38! Here they raised four
girls: Harriet R., Sarah Kincheloe, Mary Louisa, and Isabella Harper.382

While Mary Foote waited for Benjamin Hart to come back from North
Carolina and ask for her hand, Frances Elizabeth courted and married Ephraim
Lyles from Fairfield County. For a, wedding gift, Elizabeth’s father gave her
husband two servant girls, Tillis and Charlotte, for “love, goodwill and
affection.’?383

Frances’ new father-in-law was Aromanus Lyles. Ephraim’s first
stepmother, already dead, had been Mary Means, Isabella Foote’s older sister,
nearly 19 years her senior. Ephraims’ grandfather, surely after whom he was
named, had been on of the earliest settlers in the region. He was killed in his
home by a raiding band of Indians while his wife and children looked on in
horror.3%

Frances Elizabeth could hardly avoid becoming involved in a Lyles family
disagreement in 1817 following the death of Aromanus, Sr. Houston Goree, a

380[bid., p. 209
*8!Deed Book M, Fairfield County, South Carolina, p. 12.

3®The names of John Foote’s children by his second wife are given in the deed
records of Fairfield County. The record dated 1819 and signed by Thomas Means
shows Harriet had married Dr. Burr Johnston by that date. By November 4, 1832,
Isabella Harper Foote had married Alexander Chambers, while Sarah Kincheloe and
Mary Louisa remained single. See Deed Book AA, Fairfield County, South Carolina, p.
283, and the release from William B. Means to Isabella Foote and others, Deed Book
MN, Fairfield County, South Carolina, p. 481.

3®Deed Book A, Fairfield County, South Carolina, p. 176.

This tradition is from William Edergington, “The Lyles Family”, part of a series,
“The History of Fairfield County, South Carolina”, The News and Herald, Winnsboro,
S.C., March 15, 1901. The complete series ran from February 8, 1901 toJuly 9, 1902.
Mr. Ederington says that Aromanus Lyles had six sons and one daughter, ‘viz:
Ephraim, John, Valentine, James, Aromanus Jr., Thomas, and Rebecca.” He goes on to
say ‘Ephraim married a Miss Foot and removed to Chester District, on Broad River.”
For the children and grandchildren of Ephraim Lyles and Frances Foote and other
information on the Lyles family see Leonardo Andrea, Compiler, “Lyles Genealogy”,
Folder No. 418, the Margaret Davis Cate Collection, Fort Frederica National
Monument, National Park Service, St. Simons Island, Georgia, 1949.

145

PEACE

witness to the altercation involving Frances, claimed he saw her “jerk out of
the hands of the complainant with violence, some article of clothing.’ The
complainant was Susanna Lyles, the third wife of Col. Aromanus Lyles.

But the problem was much greater than the simple disagreement over the
ownership of some article of clothing. Susanna claimed rights of inheritance
over property that Aromanus, Sr., by a statement issued before their marriage,
specifically excepted from her inheritance. However, Aromanus executed the
statement unilaterally, raising questions about its standing as a marriage
contract. Futher complicating the matter were counter claims--from Susanna
that Ephraim had used force to expel her from home and Ephraim that
Susanna was a bigamist. Henry Davis testified in a trail that in 1817 while near
Leaf River, Mississippi, he had seen Philip James, Susanna’s first husband, it
was said, whom she had never divorced after he ran away and left her a few
years after their marriage in 1785. Around 1800 she married Joseph Kennerly,
a ‘‘worthy and very respectable man.’’ On his death in 1808 she married for a
third time to Cullen Fennel, who lived but two years. This all made Frances’
father-in-law, Susanna’s fourth husband. Although Phillip James’ North
Carolina mother claimed she had heard from a second wife he had married
about 1809, of his death in Tennessee, another witness, James Vessels,
testified he had seen James on the Tombigbee in 1818 and had also seen James’
son who told him ‘that he was still alive.” Ephraim, his brothers and sisters
lost the case when they relied too heavily on the testimony of Henry Davis,
whom witnesses labeled as dishonest. The court accepted the view of one
witness that “he is now as he always has been, given to romancing.”’

As for the other witness, Vessels, it was said his character became
“notorious’’ after serving in the Revolution at too youthful an age. In the
Georgia neighborhood where he lived, residents testified that ‘his character
was infamous.”’ And David Dunkin, whom Ephraim placed as a tenant in the
house where Susanna had been living without her consent when she went ona
visit to Lexington District, admitted to a friend that he had been put there to
keep Susanna out of the house. Ephraim and Frances were devasted
financially38> by the Court's ruling that Ephraim ‘“‘set down to the credit of the
complainant the balance of the said one-third’? which she was due.3*

385His financial situation forced Ephraim to apply for a pension from the state. It was
approved December 7, 1824. See Laws of South Carolina (1824), p. 100.,

386"'Susannah Lyles vs. Ephraim Lyles, Administrator, and other children, and heirs-
at-law of Aromanus Lyles, deceased’, W.R. Hill, Reports of Cases in Chancery... Court
of Appeals of South Carolina, Volume | (Charleston: McCarter and Co., 1858), pp. 76-
94, and “James Lyles, et al. vs. Susanna Lyles, et al.’’ Henry J. Nott and David J.
M'Cord, Reports . . . Constitutional Court of South Carolina (Charleston: W. Riley,
1842), pp. 531-34.

|


146 CHOTANKERS

While most of the family roots in South Carolina continued to grow deeper,
Newton, the oldest child of George Foote, II, and Margaret Kincheloe decided
it was time to seek a challenge farther west. In October, 1792, a bachelor of 31,
he headed for Georgia, 100 miles to the west, a four day journey from Chester
County, where he bought land on Shoals Creek and the Broad River.38?

But by early 1799, he had arranged for Bedford Brown to move onto the
property as overseer for him and went back to Chester, soon purchasing 100
acres of land on a branch of Beaver Creek in Fairfield County, not far from
John Foote, Sr., and Isabella.388 Six months later he added another 100 acres to
his plantation.

Both considerably younger than Newton, William and James lived on
William’s place, apparently leased, where they worked five servants until
William’s marriage about 1805 to Nancy Sanders Rice McDaniel.38° The
daughter of Hezekiah Rice, who had also moved south from Caswell County
about the same time as the Footes and settled in Union County, S.C., Nancy
had been widowed by the death of her husband in 1801 at his youthful age of
24. Pregnant at the time, she gave birth to a daughter a few weeks later.3%!
Nancy named her Mary L.S.C.S. McDaniel. In February, 1808, William and
his bride petitioned the Court of Equity for the Districts of Spartanburg,
Union, York and Chester for guardianship of Mary, granted under a $4,000
bond which William put up.3%

387360 acres were purchased from Bedford Brown of Wilkes County, Georgia by
Newton. See Deed Book B, Elbert County, Georgia, p. 58. In 1813 this land was sold for
taxes to Thomas Haynes. See Deed Book 2, Elbert County, Georgia, p. 99. Also see
Grace Ginam Davidson, Historical Collection of the Georgia Chapters: Records of Elbert
County, Georgia. (Atlanta: DAR, 1930), p. 171.

388See February 15, 1799 deed from Thomas Edge, Deed Book M, Fairfield County,
South Carolina, p. 129 and October 12, 1799 deed from John Jennings, Ibid., p. 178.

387Thomas Wilson names in his October 11, 1800 Will ‘daughter Rebekah Foote”
and mentions his home tract on the North Hico. So far she has not been linked to any of
the sons of George Foote, II. If and when she is, it may turn out that William Foote had
married and lost a wife in North Carolina before starting his courtship of Mrs.
McDaniel. for Thomas Wilson’s Will see, Will Book C, Caswell County, North
Carolina, p. 473.

3®For the children of Hezekiah and Mary Rice see the will of Mary Rice. Will Book B,
Union County, S.C., p. 259.

39\""Robert M’Daniel, et al., v. James Moorman and wife’, Reports of Equity Cases
Determined in the Court of Appeals of the State of South earolina (Columbia: Black and
Sweeney, 1825), pp. 108-16.

32Clerk of Court Record Book, 1801-1841, Court of Equity, Union County, South
Carolina, (WPA Transcript), p. 7.

PEACE 147

A few years later brother James followed William’s example and married
Nancy McDaniel Foote’s sister, Jane Mills Rice} and settled in Union
County.3%4

Ill

While the brothers and sisters of Gilson were marrying and settling on their
own land, his exact whereabouts is not clear. It seems likely that he continued
to travel, possibly into the Mississippi Territory and if so probably as far as
French New Orleans. His father’s displeasure over his absence and his
friendships and business association with men of questionable backgrounds
were known to him, excluded as he was from the gifts bestowed on the other
children.3” :

Gilson’s return to Chester County occurred around 1801, when he joined
his father on the waters of Sandy River on land that had been originally granted
Josiah Hill. In January of the following year, he added to his holdings by
purchasing 129 acres from Walter Bell, increasing his total acreage to 211.3%
And in September, he bought 200 acres from James McGriff, granted to James’
father, at the intersection of Love and Queens Road.3%

It had been 15 years since Gilson first rode into the area in his quest for new
adventure and to help find land for his father. Gilson now controlled over 400

393See the will of Mary Rice. The following query appeared in 1919: ‘'Foote.--Who
were the parents of James Foote? He was b. during the Rev, m Miss Rice. Had 2 bros,
John & William. All date & Rev service desire.--P.C. Mc. ‘'Genealogical Department”,
Daughters of the American Revolution Magazine Volume LIII (October, 1919), p. 629.
This marriage occured before February 25, 1808.

4The site of his home and P.H. (post house?) in Union County are indicated in
Robert Mills, Atlas of the State of South Carolina, facsimile of 1825 original, (Columbia:
L.H. Bostick and F.H. Thornley, 1938).

Deeds on file, some cited earlier, show that George Foote, II made gifts to most of
his older children, including William, John, Frances Elizabeth and James in Chester and
Fairfield Counties, South Carolina. For the gift to James of two servants, “one negro
boy named David--10 yrs and Negro Girl named Cathran--8 yrs”’ and $100 in cash, see
Deed Book I, Chester County, South Carolina, p. 89. The sale of land, the price reveals
mostly a gift, went to George Foote, III in Caswell County, North Carolina. It seems
likely that George, II conveyed Newton’s share to George, III, a reward for George, III
taking Newton’s place in North Carolina Militia during the Revolution.

3%Deed Book H, Chester County, South Carolina, p. 441. In 1812 he sold this land to
his neighbor Richard Wiley. Deed Book P, Chester County, South Carolina, p. 200.

7Deed Book H, Chester County, South Carolina, p. 536.

88Deed Book I, Chester County, South Carolina, p. 91.

a pep enone


CHOTANKERS

acres himself; while far below the standards for men of even moderate wealth,
the holdings demonstrate that at 37 years of age, Gilson had begun to build an
estate, but he had no heirs to pass it on to. Still a bachelor, he had moved onto
land that lay about seven miles northwest of Chesterville, on the road to
Blairsville above where it forked off from the main road to York. It is here,
where Gilson was living in 1803, that he accepted the pleas of Edmonds’
congregation for help in finding a site for their church and in March, 1803,
granted them five acres to build a meeting house,>” adjacent to his own home.
The location of this Presbyterian church appears on the map Charles Boyd
prepared in 1818 and Robert Mills later improved for publication in his 1825
atlas.4©

Doubtless, the family interpreted this assistance to the church as a sign
Gilson intended to become a respected citizen of Chester County, and for a few
years until he opened his whiskey distillery their expectations appeared to be
coming true.

Just as Newton seems especially close to the family of his sister Frances
Lyles, so Gilson seems to be favored by his sister Mary. She had married to
Benjamin Hart, who had settled his family at Rocky Mount in Fairfield
County, where on Rocky Creek, he built one of the earliest “grist” mills in the
area.*0!

Because it was operated by his brother-in-law during the early years of the
19th century, Gilson frequently brought his grain here for grinding to use in
his still. Buying the mill in 1819, John Pickett, added a cotton gin and made
other improvements. By 1849, after many years under Pickett’s ownership,
the mill was operated by George Doag who sold it and thirty acres of
surrounding land in the fall of that year to Greenberry Montgomery, Jr. Acting
for his 20 year old son, James B. Montgomery, he paid $3,500, in what a court
would later call a fraudulent collusion between father and son to avoid paying
certain creditors of the father.”’ The mill seemed to be a lucrative purchase for
Montgomery after he expanded it by adding expensive saw mill equipment
including a circular saw costing $300. He also built a country store and tannery
and then erected a “mansion”, before the real nature of his apparent
prosperity became known. To claims that James B. Montgomery was the real

3Deed Book I, Chester County South Carolina, p. 246.
40Mills, Atlas.

410n October 26, 1819, Benjamin Hart sold the mill and 536 acres of land
surrounding it to John Pickett. Henceforth, it was known as Pickett’s Mill. Deed Book T,
Chester County, South Carolina, p. 163. The location of Pickett’s Mill appears on the
Chester County map in Mill's Atlas of 1825. Ford writes: ‘A grist mill was built on
Rocky Creek by Hart..." See L.M. Ford, Memories, Traditions and History of Rocky
Mount and Vicinity, (Manuscript in the Chester County Library, c1890), p. 11.

PEACE 149

head of the family, a justification necessary to legalize his ownership of his
father’s property and prevent its confiscation for debts, the Court answered
that “nota tittle of evidence supports this strange allegation, that an unmarried
infrafamiliated youth had suddenly become the head of his father’s family.’

By 1856, the mill had taken on the signs of permanency with a stone dam,
stone mill house and three sets of grinding stones. In a nearby shed were the
saws, and all were connected to a single water wheel, a gigantic 20 feet in
diameter and six feet wide. Unfortunately, the mill was burned by General
Sherman in the Civil War.

But when Gilson Foote visited his brother-in-law’s mill, it was still a simple
grist operation and instead of fearing the mightly Yankee Army, the greatest
fear of Benjamin Hart was that one of the frequent “high creek”’ floods would
wash away his entire investment. Or that another infant would be murdered
and thrown into the Rocky Creek to be caught in the mill dam like Dianna
Sweat’s child had been when Benjamin Hart discovered it.4°

Living on land adjacent to Hart’s mill site was Jonathan Mackey whose first
wife was Celia Land, a daughter of Mary Montgomery and William Land.**
Jonathan’s father was John Mackey who had died many years before in nearby
Lancaster County. Benjamin Hart and Gilson Foote saw Jonathan frequently
when he came to chat with the other men of the neighborhood who gathered
there. Another of the frequent visitors was Benjamin Morris and his brother
George Morris. Benjamin Morris had married Jonathan's mother Margaret
after the death of her first husband. George Morris’ land lay next to Mackey’s
and Hart’s land.°5 In addition to being the preferred locale for friendly
conversation, the mill was frequently the site for trading articles as

402" William McCorkle and Others vs. Green B. Montgomery, Jr. and Others”, J.S.G.
Richardson, Court of Appeals and Court of Errors of South Carolina (Charleston:
McCarter and Dawson, 1861), pp. 114-21. L.M. Ford (loc. cit.) erroneously
contributes the addition of the saw mill to Pickett.

403Ford, p. 14. Ford places this incident later, but the Sweats had lived in the area as
early as 1800 and during the period that Hart owned the mill. Ford seems to frequently
underestimate the “tage” of such events.

40¢That Hart’s land which he later sold Pickett lay adjacent to the Mackey land is
proved by a deed to John Guntharp, Sr. dated October 7, 1829. See Deed Books,
Chester County, South Carolina.

405Margaret Morris is identified as the mother of Jonathan Mackey and the widow of
John Mackey in Deed Book B, Lancaster County, South Carolina, p. 272. For a deed
from George and Agnes Morris to Benjamin Morris see Deed Book C, Chester County,
South Carolina, p. 344. Agnes Morris was a descendant of Hugh Montgomery and
therefore related to the wife of Jonathan Mackey.


154 CHOTANKERS

here that William Foote negotiated the sale of several servants to Thomas
Means, two months before, as the whole family held one of the several vigils at
John’s beside. That Gilson and Mary Ann were present is certain for she
witnessed the deed that William gave Means.‘!6

By May 10, 1806, John had died, and his brother-in-law, Thomas Means,
named executor. The will, witnessed by John Foote, Jr., John, Sr.’s son by his
first wife, and Aromanus and Mary Lyles, was proved before John Buchanan,
Clerk of Court for Fairfield County. Except for the land in Chester County,
which John had bought from James Dillard, everything went to his wife and
children, including John W. Foote, Jr., and George W. Foote, sons by his first
wife.*!7

George Foote, Il’s, home was upon the tract John, Sr. left his brothers
William and James, expressing the desire that their father was ‘to have the sole
care of said land during his life.’’*'8 By 1806 his health showed the signs of his
72 years. The toll of years forced him to request that he be relieved of his
summons to jury duty for Chester Court that year.*!? And by late summer,
1808, it was so clear his health was failing very fast that, with Nancy’s
encouragement, he decided time had come to prepare a last will and testament.
To all of his living sons by Margaret Kincheloe, Newton, George, Gilson,
William and James; to the heirs of John Foote, Sr.; and to his sons-in-law,
Ephraim Lyles and Benjamin Hart, he left one shilling sterling. For his sons by
Nancy Williams, whom he married at Margaret’s death, he directed that his
estate be appraised and after paying the debts ‘tbe equally divided between my
three sons, namely Henry, Richard, and Berryman Foote.’’ George provided
for his wife, Nancy, by directing his three youngest sons to be ‘‘Equally bound
to Support their Mother my wife Nancy Foote.” 42° William Foote, Carvelle
Chalk, and John Foote, Jr. witnessed his unsteady signature. By mid-
December, the word came to all of the Foote households in Union, Chester

416This deed is available in Miscellaneous Records, Volume #E, State of South Carolina
Archives, Columbia, South Carolina, p. 288. The other witness on this deed was
Margaret Foote. Since there is no evidence of any ‘Mary Foote” other than Mary
McAdory, already married, and Mary Hart, the wife of Benjamin, whom she had wed
before 1800, this indeed must be Gilson’s wife. If not married in a formal ceremony she
had undoubtedly adopted his name under common-law status.

417His will and extensive records kept by Thomas Means for the administration of the
estate are in Apartment 15, File 156, Fairfield County Courthouse, Winnsboro, South
Carolina.

418]bid.
4!9Court of General Sessions Minutes, Chester County, South Carolina.

20Will Book D, Chester County, South Carolina, p. 355. Also see Apartment 19,
Package 296 for other estate documents.

PEACE 155

and Fairfield counties that ‘told man George Foote”’, a designation used to
distinguish him from his son and grandsons of the same name, had died. At his
death he still did not own a carriage; they would have carried his body to Sandy
River Church for burial in his “truck” wagon. Here they interred him where he
rests along side Lydia Land and others who lived during his lifetime.*?!
Doubtless, all of the family, including Gilson Foote, his young wife Mary Ann,
and their new baby, Gilson Foote, Jr.,4?? gathered for the funeral of the loved
and respected patriarch of the South Carolina Footes. Gone from Chester at
74 years old -- forever missed at Chotank....

The ancient seats of generous hospitality are still there, but their former
possessors, so free of heart, so liberal, and blessed withal with the means of
being free and liberal, where are they? ‘‘And echo alone answers, where are
they.’’423

#1In July, 1974, William A. Foote of Chester County, South Carolina accompanied
this author to the burial yard of Calvary Baptist Church, earlier known as Sandy River
Church, where he pointed out the resting place of George Foote, II. The grave had been
identified for him by his Uncle George Foote, the great-grandson of John Foote, Sr.
That older members of the family would have shown the young George the grave of the
“original” George seems entirely plausible and, therefore, adds credibility to the story.
The site is adjacent to the grave of Lydia Land, which is marked by an ancient,
weathered tombstone.

#22The date of Gilson Foote, Jr.’s birth is estimated from the best evidence -- the date
of his first child’s birth, the age of his future wife, and his age ranges, listed in the
Lancaster County, South Carolina Census Records for 1830 and 1840.

43Eleanor Stuart, ‘Recollections of ‘Chotank’,’’ Southern Literary Messenger,
Volume I (October 15, 1834.), p. 44.


150 CHOTANKERS

well as stories and not infrequently the sale of a servant or a tract of land.
Doubtless, it was here Jonathan Mackey worked out a deal to buy 12 acres in
December, 1805, from Edmund Strange. Benjamin Hart and Edmund’s
relative, William Strange, agreed to witness the deed.*°

Gilson Foote and Benjamin Hart must have dropped in from time to time at
Mackey’s store to visit and exchange crop information or talk politics.
Probably, this is where 38 year old Gilson Foote first saw 15 year old Mary
Ann Mackey. Mary’s father was Thomas Mackey, Jonathan’s older brother.
Thomas and his wife, the former Mary Ann Crenshaw, lived on a 300 acre
plantation in Lancaster County, south of Lancaster Court House on the road
to Camden; the house stood on a knoll overlooking Camp Creek.*”

46Deed Book M, Chester County, South Carolina, p. 151.

407The fact that Jonathan Mackey, the son of Margaret Mackey Morris, and Thomas
Mackey are brothers escaped Beatrice M. Doughtie, The Mackeys and Allied Families
(Decatur, Ga.: Privately published by the author, 1957); however, the proof appears in
her book where she draws different conclusions about the parentage of Thomas
Mackey. The key is two grants in Lancaster County, South Carolina. They appear in the
The Mackeys on pages 441 and 736. The second has been more recently published in
Kate-Prince Ward Esker, South Carolina Memorials, 1731-1776, Volume I (Cottonport,
La.: Polyanthos, Inc., 1976), p. 65. The first of these grants is for 100 acres “laid out by
Henry Clark 7 May 1762, afterwards conveyed by Clark to John Mackey by deed
December 11, 1774”. At the time of the grant the land was ‘‘bound on all sides by
vacant land.” The second grant, dated 29 April, 1768, covered ‘100 acres in Craven
Co. on branch of Wateree called Camp Creek. Bounded Northwest by Henry Clarks’
land: all other sides on vacant lands.” ‘'Clark” is incorrectly transcribed ‘'Mark”’ in
S.C. Memorials. This second grant was made July 4, 1768. It was conveyed in 1795 to
Thomas Mackey by “Jonathan McKey’s and heir-at-law unto John Mackey, dec’d with
dower by his mother, Margaret Morris, former wid. of John Mackey, 100 a. which was
an original grant to John Mackey bearing date 6 July 1768 adjacent to land of Henry
Clark lying on Camp Creek."’ See Deed Book B, Lancaster County South Carolina, p.
272. Obviously, the deed and grant to John Mackey involved the same man. Otherwise
the sale of tract ‘one’ would not have named John Mackey as the buyer without
identifying him as a different John Mackey from the one who had been granted an
adjacent tract. Mrs. Doughtie’s proof that Thomas Mackey is the son of John Mackey
depends on the deed for tract ‘'one”’ from Henry Clark to John Mackey. Although a
“comprehensive” search was made it is admitted on page 736 of The Mackeys that ‘‘the
following are the only conveyances found"’. However, Ms. Doughtie reports on p. 735
of The Mackeys that Thomas Mackey bought land granted Alexander Douglas in March
15, 1785. A check of the original deed in the Lancaster County Court House reveals
that Thomas Mackey purchased out of 640 acres only 87 acres south of Camp Creek
adjacent to land granted to Henry Clark and to his own land. For a very good sketch
showing the location of the Thomas Mackey land on both sides of Camp Creek see the
plat in Deed Book P, Lancaster County, South Carolina, p. 560. When Thomas Mackey,
Sr. sold the land granted Clark to Hugh McCrory in 1813, the deed indicated the land
“on the North side of Camp Creek the creek being the line between Thomas Mackey,
Sr. and Hugh McCrory.” See Deed Book H, Lancaster County, South Carolina, p. 25.
Footnote continues at **.

PEACE 151

It was here at Mackey’s store that James Ferguson passed a $50 bill many
years after Gilson and Mary Ann met between rows of general merchandise
and farm supplies. That large a bill would have drawn much attention at any
backwoods country store, but it was of special interest to Jonathan Mackey for
he had learned that James Key had lost $600 wrapped in a brown paper and
tied with a string on the road that passed by Ferguson’s house. That 600 dollars
would be the equivalent to nearly $12,000 today. And its loss created a major
stir in the neighborhood. Someone repeated a rumour that Ferguson has been
seen in Chesterville passing large sums of money. That was enough for Mackey
to send word of his suspicions to Key. They confronted Ferguson who
claimed, ‘it is money I have been laying up for years.” After extended
interrogation and promises that Key would show Ferguson “‘all the indulgence
in his power”, Ferguson confessed to finding the cash on the road near his
house.*°9

Like her Uncle Jonathan, and all of her Mackey relatives, Mary Ann was
always within the law, surely cautioning Gilson about what she would have
perceived as a disturbing character trait in him--his laxity of honesty.

Mary Ann was the third oldest child in the Thomas Mackey family. She had
two older brothers, Thomas Crenshaw and George. Her younger brothers and
sisters were John T., Andrew Jackson, Margaret Missouri [In 1868, Charlotte
Foote Grisham, a granddaughter of Gilson Foote and Mary Ann Mackey

408]f the deed records are not convincing enough, then the reader is directed to several
letters in the Draper manuscripts in the Wisconsin State Historical Society. In June,
1873 D.G. Stinson, a lifelong resident of the Great Falls area, wrote Mr. Draper from
Landsford, South Carolina: ‘'The Mackeys were inhabitants of the Eastern Side of the
Catawba. I knew one Jonathan [sic] Mackey, the stepson of Benjamin Morris....1 have
lately been told, that he was the Same Mackey family, those I know in Lancaster are men
of respectability.” (9VV, page 250). In the same letter Stinson stated that Greenberry .
Montgomery told him that his grandfather Montgomery was the Uncle of Dr. John
Mackey. Mrs. Doughtie clearly linked her ancestor Thomas Mackey to Dr. John
Mackey; therefore, there is ample confirmation of the relationship between Thomas
Mackey and Jonathan Mackey. Other letters in the Draper manuscripts raise serious
questions about published stories of Dr. John Mackey’s participation in activities
related to the Revolution. In 9VV, pp. 256, 259, and 261. That Thomas Mackey lived
in area of Great Falls on Chester side of the river for a time is proved by a motion
ordering him and Jonathan Mackey, among others, to appear in Court for “not
attending and working on publick road...."" Captain Edmund Strange, Jonathan
Mackey’s neighbor, was ordered to appear and give evidence against the men. The order
was issued August 7, 1798. Brent Holcomb and Elmer Parker, Chester County, South
Carolina: Minutes of the County Court, 1785-1799 (Easley, S.C.: Southern Historical
Press, 1979), p. 396.

40°} .J. McMullan, Reports of Cases at Law...Court of Appeals and Court of Errors of South
Carolina, Volume II (Columbia: Dubose and Johnston, 1843), pp. 502-03; Jonathan
Mackey died in December, 1850 in Henry County, Georgia ‘of advanced age born 22
May 1772.” See Will Book B, Henry County, Georgia, p. 179.


152 CHOTANKERS

named her new born daughter Missouri, most likely after her Aunt Missouri
Mackey Caskey, who died in January of that year.] and Agnes “Nancy Jane”
Mackey.*!°

By 1804, Gilson Foote was making frequent trips to the Mackey homestead
on Camp Creek to court Mary Ann. This developing relationship between the
middle-age man and the young girl surely upset the parents who would have
found the age differential of nearly a quarter of a century very displeasing. And
Gilson’s reputation of being a ladies’ man, of his long trips away from home,
and the connections he cultivated with citizens of questionable ethics would
have become known to Mary’s parents.

Sometimes on these visits Gilson brought a horse to trade or sell to a
neighbor or farm owner where he might stop along the way. One such deal was
worked out in March, 1804, with Rebecca Bell, who purchased “‘a sorrel mare
about fourteen hands high about eleven years old” for 70 dollars. Gilson did
not worry about replacing the animal; he seemed to have a never-ending supply
of high quality trading stock.*!!

Samuel Monahan, a friend and frequent business associate of Gilson, came
along on this trip to keep Gilson company on the long journey across Chester
County and Lancaster County, necessary to reach the Mackey home nearly 40
miles away from Gilson’s house on the Sandy River. Overa one day’s journey,
the first night had to be spent around Findley Ford just a couple of miles west
of McDonald’s Ferry, which the next morning would carry Gilson, Monahan,
their horses and the extra stock, which Gilson would later sell, across to the
Lancaster County side of the Catawba.

Ownership and operation of a ferry carried great responsibility for the safety
of the riders and for their stock and freight as well. One ferry owner, during a
high wind on the Santee, when the steersman left the bow of the boat to
chastise the helmsman over steering problems, had his ‘‘flat’”” swept down the
current nearly a mile, striking shoreline trees and drowning two horses. In
return, for their risks, ferry owners were exempt from: militia duty, even in
war time; compulsory jury service; and road work.

On this trip, the crossing cost Gilson 11 cents, the regular rate of 7 cents
‘for a man and a horse” and an extra 4 cents for the mare he lead without a
mount. The McDonald’s Ferry had been established in 1785 by George Wade
and the right to operate granted to the McDonalds under a 14 years renewal
given Wade in 1795.*!? Not only did the Findley Ford Road traffic pass over

410This author has frequently heard his father refer to young female members of the
family, regardless of their given namesas ‘Nancy Jane”. The extent of this pet useage of
“Nancy Jane” in other families has not been determined.

411 Deed Book F, Lancaster County, South Carolina, p. 204.

412" An Act...” Acts of the General Assembly of the State of South Carolina from
December, 1795 to December, 1804, Volume II (Columbia: D. and J.J. Faust, State
Printers, 1208), p. 43.

PEACE 153

the ferry, but hundreds of travelers and farmers with cattle, hogs, sheep and
goats, using the Beckhamville, Mountain and Chesterville Roads from the
West and the Kingsbury, Hanging Rock, Lancaster, and Samuel Gaston’s
Tavern Roads from the East. Whenever Gilson took this route with a loaded
wagon, McDonald charged a much steeper 75 cents, the regular rate for the
short ferry trip.443

And he never missed the opportunity to arrange a ‘‘deal’”” whenever and
wherever possible. By this time he was making frequent arrangements for
merchandise and extra grains with Arthur Hicklin, Jr., who operated a mill on
Fishing Creek, a mile or so south of McDonald’s Ferry on the Chester County
side of the Catawba, only a short detour on these visits to see Mary Ann.
Arthur Hicklin, Jr. was the grandson of Arthur Hicklin, Sr., a Scotchman who
immigrated first to Ireland about 1730. Around the middle of the 18th
century he moved on to Lancaster County, Pennsylvania, where he stayed a
few years before coming with a large number of residents of that county to
South Carolina, which they would later name Lancaster in honor of their
Pennsylvania home. His lands lay about one-half mile southeast of
McDonald’s Ferry.*!*

Sometime before February 16, 1806, 41 year old Gilson wed Mary Ann and
brought her home to his farm at the intersection of Queens and Love Road.
Having just turned 18 and no longer needing her parent’s permission, Mary
Ann probably married Gilson over their objections.*5

News arrived in April, that Gilson’s brother John had grown every week at
his Beaver Creek farm and likely would not live to see the summer.
Apparently, most of the family had gathered there several times already when
this gripping illness seemed to be forcing him near death. Doubtless, it was at

413E,.T. Crowson, “Some Roads, Ferries, and Homesites of the Lower Catawba,”
Names in South Carolina, Volume XVI (Winter, 1969), p. 42. William McDonald, Sr.
bought the Wade land of 600 acres where the ferry operated from the Lancaster side of
the River in November, 1803. See Deed Book F, Lancaster County, South Carolina, p.
202.

414Suits between Arthur Hicklin, Jr. and Gilson Foote resulting from these business
transactions going sour can be found as early as 1806.and continuing through 1809. See
Minutes, Court of Common Pleas, Chester County, South Carolina. For a brief history of
the Hicklins see L.M. Ford, ‘The Hicklin Family”, unpublished manuscript in
Lancaster County Library, Lancaster, S.C.

'SThe proof that Mary Ann Mackey and Gilson Foote formed a liaison ending in
marriage depends on circumstantial evidence whose explanation would be long and
tedious if presented here at one time and therefore, instead the author has elected to
present the documentation for this conclusion as the story unfolds. By the time readers
complete this section of the book, they should not doubt the connection between the
Foote and Mackey families.


CHOTANKERS

koore CHAPTER ELEVEN

MOUNTAIN ISLAND MAN

On December 16th, 1808, Isiah Mitchell, William Harbin and John Cousert
gathered at the house of George Foote, II to inventory his estate, listing among
other holdings personal household goods including a table and chairs, one
chest of clothing, a cupboard, some pewter, two glasses, two beds and two flat
irons. And then on January 27th, 1809, members of the family and many
neighbors showed up to bid for these and other items at the estate sale.

The servants went to William and Gilson, with William buying two of the
older hands and Gilson paying $862.00 for one Negro woman and one Negro
man. Ephriam Lyles came looking for tools and other implements and went
away with the grass scythe, a wagon, gears, and reaping hooks. Planning to
marry soon, John W. Foote purchased his grandfather’s feather bed and coffee
mill. Many from the neighborhood and some Chester County citizens from as

goods and stock. Hiram Hill bought a beautiful pair of shetlands; Martin
Worthy got three cows; Joel and John Triplett took back two cows and a calf;
Robert Ingram left with two sheep. James Hancock bought leather, and John
Shaw gave the highest bid for some iron ware and three hides.

Henry Foote was the largest single purchaser in terms of the number of items
purchased, buying a lot of pork, 14 heads of hogs, $34.50 worth of corn, four
stacks of fodder, a pot rack, his father’s saddle, an axe, a horse and mare, two
cows, and two bales of cotton to be sold in Charleston. Richard bought his
father’s shotgun, as Berryman at 15 stood and admired his brother’s new
purchase.‘?4

424The sales totaled $1451.25. See the complete sale list in Apartment 19, Package

Eastern Chester County, S.C. in 1825. fon

far away as Tinker’s Creek in the northwest part of the country carried home alk

296, Chester County, South Carolina. r


164 CHOTANKERS

Gilson’s fishery consisted of fish traps placed every 10 to 15 yards, inserted
into a dam to prevent the fish by-passing the traps and to keep them anchored
in position. In many rivers, canoe and boat traffic required a boat sluice,
greatly reducing the efficiency of the fishery.**? But, at Rocky Mount, the swift
currents and rock obstructions prevented water traffic anyway, eliminating
demands for navigational access through Foote’s Fishery.

The fishery site was first used by the Indians, but by the time of the
Revolution it had been under the control of the white settlers for several
decades. William Wall was probably the first white to use a dip net with great
success on the Catawba.

As the nature of the fishery improved with permanent construction under
succeeding owners investment grew significantly, helping to compensate for
the reduction in the natural supply of fish passing down the river. By the early
1800s when Gilson bought the fishery, the cost of building a trap had
increased to $10.00 and a typical fishery, such as the one at Rocky Mount,
required laborers, two of them white to supervise slave workers, six days to
build a dam and place the traps in the river. The cost of the entire fishery easily
reached $175 to $200, a $4,000 to $5,000 investment today.‘#4

Gilson, Jr. would have looked forward to the biggest event on either side of
the river of the entire year, the May picnic at the head of the falls. Gilson Foote
joined the other proprietors of Catawba fisheries on the first Saturday of May
for a dinner of fish cooked on the river bank--a tradition marking the end of
the major fishing season when the shad were ‘“running”’.*4#°

While Gilson Foote had no trouble in being an enthusiastic supporter of
traditions where celebration, food, whiskey, or beautiful women were
involved, he was not adverse to breaking other traditions, such as one
established by Archibald Gill. Gill would not do business at the Rocky Mount
Fishery on Sunday.

Gill’s father had settled in the area about 1760, having migrated to South
Carolina with many other Pennsylvania immigrants. While Gilson Foote did
not hesitate to ignore the tradition of Sunday business established by Gill, he

442Ibid. Massey claimed title under a grant of January 6, 1794. Trantham produced a
deed from George Platt to himself dated March 17, 1795 under an original grant of June
19, 1772 to George Platt. The Court declared a ‘‘non-suit”’. The resolution of the case is
not clear for a ‘Little Island” was included in a sale to Gilson Foote in 1815 by Platt’s
son. Deed Book R, Chester County, South Carolina, p. 170.

43"Boatwright v. Bookman, et al.”, William Rice, Reports of...the Court of Appeals
and Court of Errors of South Carolina, Volume I (Charleston: Burges and James, 1839), p.
448.

4Ibid.

45Ford, p. 7.

MOUNTAIN ISLAND MAN 165

later turned to Archibald Gill’s son, Robert, for help ina crises. By that time
Robert Gill had become very influential in Louisiana--so influential that he
was elected Attorney General of the state.*#©

In June, 1815, Gilson purchased fantastic Mountain Island from John Platt,
which he had inherited from his father, George. The purchase included about
half of the island, excluding the northern part granted Middleton McDonald,
brother of William McDonald, who operated the ferry across the Catawba.**7
Included in the purchase was a house with a fine spring sitting almost on the
boundry line that separated these two grants,*#8 and a tavern, which had to be
reached by boat from the east or by going from stone to stone from the western
shore.*#9

The McDonald family’s greatest misfortune had involved Mountain Island.
It was on Mountain Island that Colonel Frederick Kimball killed the husband
of his wife’s sister over what had been a disagreement between the two men
dating to the days of the Revolution. Having served in Kimball’s command,
Henderson, husband of Nancy McDonald, was said to have a habit of running
when pressed in battle. ‘Maj. Kimble told him on one occasion that if he ran
any more that he would kill him on sight,’ wrote W.M. McDonald in a 1873
letter from Chester. ‘After the Revolution Maj. Kimble met him on the
Mountain Island in the Catawba River and shot him.’’ Kimball fled to Natchez
and was never tried for the killing.*°°

After Gilson Foote moved from Benjamin Hart’s to his own place on
Mountain Island, most days he could see clearly Fort Dearborn just one mile
away from his house below the falls on the western shore of the Catawba. At
the request of President Jefferson, the United States government had selected
the site for the location of a permanent magazine for South Carolina, North
Carolina, and Georgia at the beginning of the 19th century. In 1803 and 1804,
Congress appropriated over $14,000 for purchasing and improving the site
Catawba, making it equivalent to three other U.S. armories, Springfield, West
Point, and Harper’s Ferry.

Congress made plans for several buildings, ‘A brick building three stories
high, one hundred and seventy-five feet long, ...to contain twenty thousand

#6Ellet, p. 278.
447Deed Book R, Chester County, South Carolina, p. 170.

48For a plat showing locations of the house and spring see Deed Book O, Lancaster
County, South Carolina, p. 358. In the 1840's J. Crenshaw occupied the house.

449 According to Ford, the tavern--known as Link's in the 1830’s--was on “Hill
Island," See Ford, p. 14.

459Volume 12VV, Draper Manuscripts, Wisconsin Historical Society, Madison, pp.
239-42.


CHOTANKERS
Il

Henry and Richard moving out left plenty of room at Benjamin Hart’s at
Rocky Mount for another boarder, and he agreed with Mary that Gilson, still
living alone in the rented place at Walker’s Mill, should move in with them; he
did by May, 1813. In that same year, Jerry Gaither brought suit in Union
County against Gilson for not living up toa 1807 agreement to supply Gaither
with one gallon of whiskey for every bushel of grain Gaither furnished Gilson.
Gaither claimed the first year he supplied 83 bushels of corn and 12 bushels of
rye to Foote’s distillery, and the second year even more. But Gilson Foote did
not deliver the whiskey. With each bushel yielding about 2% gallons of
whiskey worth about $1.85, a sizable profit went to Gilson. Gaither wanted his
share. The sheriff of Union County rode 53 miles to Rocky Mount “‘to Ben
Hart’s” to serve the warrant on Gilson.*?’

The suit signaled a period in Gilson’s life when he would become enmeshed
in confrontations of increasing intensity with the law and the Courts, taking
him rapidly toward the collapse of his moral and economic well-being. But
living at Rocky Mount with the activity of family life around him again could
have made his life much fuller than anytime since those years with Mary Ann
before her death.

Benjamin Hart's house stood in the center of the town of Rocky Mount,
situated on the major hill just west of the landing of Kingsbury Ferry, which
connected with the community of Kingsbury on the east side of the Catawba.
Surveyed in 1792, Rocky Mount over the years usually had 30 to 40 residents.
Hugh McMullin, George Woodward, J.F. Grimke, John Maxwell, and James
Barkley, a member of the South Carolina legislature until he was killed in 1847
when his rig overturned as he returned from Camden, all made their homes in
Rocky Mount. Washington and Pinckney, the main streets of the village, ran
North and South passing the seminary, parsonage, church, and cemetery sites,
provided by the developers.**®

The Rocky Mount post office was situated on the place of Dr. Edwards,
physician for the community, some distance west of the main community on
the road leading from the Kingsbury Ferry by Gaither’s Store toward Jonathan
Mackey’s. Heading toward Rocky Mount, Smyth passed through the area in
the late 1780s and described his crossing at Findley Ford.

This day we had a dreary ride, and miserable accomodations; having
breakfasted on some rice and milk, which it was with much difficulty we
could procure, and we dine wretchedly atan ordinary inn of the same style, on
the banks of a rivulet, named Fishing Creek, which we forded, as also

437Court of Common Pleas, Union County, South Carolina; Gilson Foote apparently
was not the only member of the family to own a still. In September, 1808, his brother
James was granted a mortgage on a Union County still. Deed Book I, Union County,

South Carolina, p. 603.

4*According to Ford, Barkley'’s house was later built upon the church lot; so it
appears the reserved areas may not have been used as intended.

MOUNTAIN ISLAND MAN

Rocky Creek, and lodged at night in a house, or rather a hovel belonging toa
Mr. ____, a private and penurious planter.
In this habitation, which had many strong features of indigence, was only
one room and one bed, which the proprietor himself occupied, but very
benevolently afforded us (indeed with some degree of reluctance)
accommodation of a pallet on the floor; and after our fatiguing ride of more
than fifty miles, even this was very acceptable.*?
To the traveler’s amazement, he found 50 slaves working in his host’s barn the
next morning.

For visitors to the area the intriguing curosity was at the falls just northeast
of Rocky Mount where the Catawba fell 175 feet in a few miles. Mountain
Island squeezed the huge volume of water into two narrow channels with the
bulk of the water flowing on the west side of the island mountain. The
tremendous water pressure created abundant power, and several small
industries had located in the area by 1813. Not all depended on the river’s
energy. When he visited there in 1849, Lossing described the scene:

The place is wild and romantic. Almost the whole volume of the river is
here compressed by a rugged island into a narrow channel, between steepy
rocky shores fissured and fragmented, as if by some powerful convulsion.
There are no perpendicular falls; but down a rocky bed the river tumbles in
mingled rapids and cascades, roaring and foaming, and then subsides into
comparative calmness in a basin below.*#

One of the largest industries drew on the resources of the Catawba in
another way. The industry was fishing. During this time Gilson Foote acquired
the rights to the Rocky Mount Fishery, the most famous of several fisheries on
the Catawba. More than one source of the time called it ‘‘celebrated’’”**! for
producing great yields of shad during the spring. James Massey and James
Trantham had clashed over the fishery a few years before Gilson Foote’s
purchase because both claimed title to “Little Island”’, a flat rock about 40 feet
square, which Trantham attempted to use as the main location of his fishery ©
business.*4?

#9Smyth, Volume I, pp. 197-98.

40Benson J. Lossing, The Pictorial Field Book of the American Revolution, Volume II,
(New York: Harper and Brothers, 1852), p. 657. Lossing visited the area in 1849.
Illustrations of the falls and the battlefield at Rocky Mount sketched during his trip
appear on pp. 657 and 658.

441''James Massey Against James Trantham”, Elihu H. Bay, Cases...in the Superior
Courts of Law in the State of South Carolina, Volume II, (New York: Isaac Riley,
Publisher, 1811), p. 421, and Ellet, p. 278.

442 Ibid. Massey claimed title under a grant of January 6, 1794. Trantham produced a
deed from George Platt to himself dated March 17, 1795 under an original grant of June
19, 1772 to George Platt. The Court declared a “non-suit’’. The resolution of the case is
not clear for a “Little Island” was included in a sale to Gilson Foote in.1815 by Platt’s
son. Deed Book R, Chester County South Carolina, p. 170.


160 CHOTANKERS

She played dead until the Indians left and with great difficulty eventually
reached Steel’s Fort gaining the assistance of family and neighbors. The men of
the neighborhood pursued the Indians as far as the Broad River, but they
escaped into the dense forest. On another occasion when the Indians killed
John McDaniel and his wife and kidnapped all seven of the McDaniel children,
twelve men, led by Thomas Steel, followed them all the way to the edge of the
Cherokee nation. Slaying the Indians in the middle of the night, they rescued
all seven children, returning them to the safety of Steel’s Fort.

Many of the residents, especially those active in the Revolution, had settled
in Chester County around 1773, arriving with a Scotch-Irish congregation of
Presbyterians. These late-comers could not only be distinguished by their
special accents, but from the finery which they preserved for Sunday church
attendance.

Ellet described the apparel.

The Women wore fur hats with narrow rims and large feathers--their hair
neatly braided,--hanging over their shoulders, or fastened by the black ribbon
bound around their heads. The handsome dress of silk and chintz--a mixture
of wool and flax--or of Irish calico, fitted each wearer with marvellous
neatness, and the collar or ruffles of linen white as snow, with the high-heeled
shoes, completed their holiday attire.... The men...appeared...in their coats of
fine broadcloth, with their breeches, large knee buckles of pure silver, and
hose of various colors. They wore shoes fastened with a large strap secured
with a buckle, or white topped boots, leaving exposed three or four inches of
the hose from the knee downward.*!

Seeing just one of the Presbyterians on the way to church was a sight young
Gilson, Jr. would never forgotten.

Gilson Foote’s nearest neighbor, John Gaston Walker, the grandson of the
great Judge Gaston, who had settled the land where Gilson’s rented house now
stood, operated Walker’s Mill. Esther, Judge Gaston’s daughter, had married
Alexander Walker of the neighborhood and settled on the north side of
Fishing Creek, ‘‘nearly opposite the old homestead where Esther’s father had
lived.’’42

Justice Gaston had been largely instrumental in getting the American forces
organized in western Chester and eastern Lancaster Counties during the
Revolution, encouraging his sons and his nephews, Knox, McClure and
Strong, to lead the fight against the British. One morning, after assembling at
Justice Gaston’s house, 30 men defeated a much larger British force. The
Americans followed the Old Indian Trail down Fishing Creek to
Beckhamville, “armed with the deadly rifle, clad in their hunting shirts and
moccasins, with their wool hats and deerskin caps, the otter skin shot-bag and

81 [bid., pp. 121-22.

#2 Ibid., p. 172.

MOUNTAIN ISLAND MAN 161

the butcher’s knife by their sides.’’? After the British defeat, Justice Gaston
fled the area to avoid reprisals.

..his horse was presently at the door, with holster and pistols at the
pommel of the saddle. The shot-bag at the old man’s side was well supplied
with ammunition, and his rifle, doubly charged, lay across the horse before
him. Bidding adieu to his wife and grandchildren, and bestowing on them a
departing blessing, he left home with his young son, Joseph who was armed
and mounted on another horse.**4

Not only was young Gilson introduced to the heroism of his father’s
neighbors, but heard a lot of the service of his grandfather Mackey, who had
enlisted in the South Carolina Militia in 1780 at 18. He had been wounded
once near Camden in a skirmish with a British and Tory force.

From time to time, Gilson Jr. must have been treated to a visit to his Aunt
Mary Hart’s at Rocky Mount. There he would have looked forward to ‘‘rough-

housing” with his young uncles, Henry*?° and Richard. But as soon as
Berryman,** living at William's place, reached 18, the three deciding like so
many others that their fortunes lay west, set out for Robertson County,
Tennessee. Richard and Berryman would sign up for the fight with the British
and later, Indians. Berryman would be killed. Richard married before his
departure from Tennessee and returned to Robertson County to raise a large
family. Henry stayed in Tennessee a few years, marrying and starting his family
there, and then moving on to St. Mary’s Parish, Louisiana, where his children

and grandchildren lost much of their property and family during the Civil
War.

+3Ibid., p. 160:
“4Ibid., p. 161.

*5Henry Foote appears in the 1830 Census Record for St. Mary’s Parish, Louisiana
where he is listed as ‘Mr. Foote’’. His full name is given in later Census Records. His
oldest son, John M. Foote was born in Tennessee in 1811. His younger children,
George, Henry, Amelia, were all born in Louisiana. John M. Foote married Caroline M.
Duinnsel and lived in Clarenton and Centreville, Louisiana, both in St. Mary’s Parish.
Their children included Alexander, Catherine, John, Mary, Newton, and Francis
Theodore. See 1840 through 1870 Census Records and Thomas Walverly Palmer,
editor, A Register of the Officers and Students of the University of Alabama, 1831-1901
(Tuscaloosa: University of Alabama, 1901), p. 308.

#36]t is assumed that Berryman H. Foote died in the War of 1812. He enlisted March
1, 1812 asa private in the Mounted Riflemen under Lt. James Berry. Since he does not
appear later in the Census Records of Tennessee or any other state, there is little doubt
that he was killed.

Richard Foote served in the Tennessee Militia as a private from January 28, 1814 to
May 23, 1814, and fought at the Battle of Horseshoe Bend. He died February 11, 1837.
March 1, 1812, he married Tabitha W. Nuckols of Robertson County, Tennessee and
they raised a large number of children. In 1872, his widow was still living at Springfield,
Tennessee. See War of 1812 Series, Pension Application Records, The National
Archives, Washington, D.C.


158 CHOTANKERS

Unfortunately, as happened frequently on the frontier other deaths
followed in rapid succession. Mary Ann, the young wife of Gilson died, leaving
him with a young son, and very bitter over her death.‘25 The best evidence
indicates he packed the three year old child off to his dead wife’s family, the
Mackeys and the Crenshaws of Lancaster County.4?6

Then a few months after Mary Ann’s death, the Foote family lost Nancy
Williams Foote, Gilson Foote’s step-mother. Berryman, her youngest son of
16, needed a guardian and William took in his younger half-brother, agreeing
in February, 1810, to “carefully and handsomly bring up the said beriman
During his minority with necessary meat Drinke washing lodging apparel &
learning according to his Degree....’’427 Benjamin Hart invited Henry and
Richard to move into his home with Mary and their children at Rocky Mount,
until more definite plans could be made for the future.*28

By 1810, Gilson Foote had sufficient time to get over his grieving for his
young wife, Mary Ann. And missing his young son, once things began to
return to normal, he made arrangements to move toa place which he rented in
eastern Chester County, just north of Findley’s Ford near Walker’s Mill. The
mill was owned and operated by John Walker, the grown son of Alexander
Walker and Jane Gaston. Instead of being 40 miles away, Gilson was now only
about 2 miles to his closest in-laws. Another neighbor of Gilson’s was William
Wylie, Sr., husband of Margaret Steel, residing on a plantation left by her
mother, east of Fishing Creek, Captain William Price and Joseph Whann lived
nearby. About two miles north of Gilson near the old Walter Brown place on
Fishing Creek lived Margaret Morris, the grandmother of Gilson’s deceased

*5The date of her death is established by the missing dowers on Gilson Foote’s deeds
commencing in 1810. For example, see Gilson Foote, et al. to John Buffington, Deed
Book O, Chester County, South Carolina, p. 270. This sale of land to Buffington was
the first he had made since 1805, before his marriage to Mary Ann Mackey. Other
evidence of the date of her death is the fact that Gilson Foote is living alone according to
the 1810 Census.

*26Gilson Foote, Jr. was still living in Lancaster in 1815 when Gilson Foote wrote a
letter to John Kennedy. Referring in that letter to Micajah and Matthias Crenshaw, the
brothers of Thomas Mackey’s wife, he wrote: ‘they are the best amongst them but
one.”’ Most likely, a reference to Gilson Foote, Jr. Court of General Sessions Minutes,
Chester County, South Carolina, (W.P.A. Transcript), p. 215.

*“7Apartment 19, Package 296.

“*This conclusion is based on a comparison of the census records for Benjamin
Hart’s household for 1800 and 1810. Two additional males, 16 to 26, are in his
household in 1810. Since Benjamin and Mary were married in the late 1790's, these are
clearly other relatives or hired hands rather than children. Census Records for 1800 and
1810, Fairfield County, South Carolina.

MOUNTAIN ISLAND MAN 159

wife and her husband Benjamin Morris. And adjacent to Benjamin Morris,
appointed constable by 1809, lived Thomas Reed, soon to be indicted for
stealing merchandise in Charleston.*?9

Since his father’s rented place was surrounded by families who had lost sons
and husbands, even wives and daughters in the fight for independence, Gilson,
Jr. learned very early about the Revolution and the suffering it had brought to
all of the residents of the Catawba region, but especially to the many Scotch-
Irish, of the area. They had fought at home, at nearby Waxhaws, Fishing
Creek, Rocky Mount and Hanging Rock, and in York County, just to the
North, at King’s Mountain where they joined other mountain men and
piedmont pioneers in defeating 1,000 Tory soldiers.

Before the Revolution the residents had suffered tremendously at the hands
of the Indians. Across the creek from Gilson’s place had been the blockhouse
known as Steel’s Fort erected for protection from the Cherokees. Although
the master of the Fort, Katherine Steel, had died 20 years earlier, the residents
still remembered ‘Katy of the Fort’. When Katherine and her husband,
Thomas, came into the area in 1745, the only white man in the area was Daniel
McDonald, living among the Catawba Indians on the eastern side of the River
near the ferry site. A friendly tribe, Catawbas welcomed settlers when they
came, offering assistance as the whites looked for suitable land to settle upon.
But their enemies, the Cherokees, raided white settlements, killing settlers
from time to time. On one occasion the Cherokees attacked the McKenny
residence a mile or so up Fishing Creek from the Steel Fort. In 1854, Elizabeth
Ellet described the fate of Mrs. McKenny, dragged away from her home by
several braves.

She now resisted with all her strength preferring instant death to the more
terrible fate of a captive in the hands of the fierce Cherokees. Her refusal to go
forward irritated her captors, and when they had dragged her about half a mile,
near a rock upon the plantation now occupied by John Culp, she received a
second blow with the tomahawk which stretched her insensible upon the
ground. When after some consciousness returned, she found herself lying
upon the rock, to which she had been dragged from the spot where she fell. She
was stripped naked, and her scalp had been taken off. By degrees the
knowledge of her condition, and the desire of obtaining help came upon her.
She lifted up her head, and looking around, saw the wretches who had so
cruelly mangled her, pulling ears of corn from a field near, to roast for their
meal.#3°

*°The 1810 census records list in order: Wm. Wylie, Sr.; John Walker; Robert
Walker, Jr.,; Gilson Foote; Capt. Wm. Price, Reuben Parrot; Mason Hughey, Sr.; and
Thomas Kennedy. Census Records for 1810, Chester County, South Carolina, p. 256. It
will be demonstrated that in addition to a close relationship with Benjamin Morris, a
result of his marriage, Gilson Foote had links with two close neighbors of Morris,
Joseph Whann and Thomas Reed.

Elizabeth F. Ellet, The Women of the American Revolution, Volume III, (New York:
Charles Scribner, 1854), p. 92.


\F

at’

YERSITY OF AL

fety

weet

93 SOUTH EASTERN REPORTER, 2d SERIES

462 S.C.

lihood, and did charge and was intended to statutory authorization to,do so, and as-
charge, and was so understood by those sistant undertook to levy upon lot and land
who read the same, that the plaintiff, as was sold at tax sale pursuant to such levy,
an attorney at law, did, with knowledge of performance of such act by assistant was
the falsity thereof, willfully induce the said fatal to validity of levy, sale and tax deed.
Roland E. Blanding to make false and un- Code 1952, §§ 65-2601 et seq., 65-2604, 65-
true assertions and statements of fact, with 2706.

the motive of serving the purpose of the
Citizens’. Committee, and that by reason
thereof plaintiff has been injured in his
profession as a practicing attorney;

McEachin, Townsend & Zeigler, Flor-
ence, for appellant.

Connor &.Connor, Kingstree, for re-

7. That by reason of the foregoing the
spondent.

defendants have damaged the plaintiff,
both actual and punitive, in the sum of
STUKES, Chief Justice.

This is an action to recover the posses-

$120,000.
=

Leroy McCUTCHEN, Appellant, |
v.
J. N. HINNANT, Respondent.
No. 17174.

Supreme Court of South Carolina. |
June 14, 1956.

Action to recover possession of un-
improved lot sold under execution for de-
linquent county property taxcs. . The Court
of Common Pleas, Williamsburg, J. Frank
Eatmon, J., entered judgment for purchaser
at tax sale and plaintiff appealed. The
Supreme Court, Stukes, C. J., held that
where tax collector employed assistant to
collect taxes on property without statutory
authority to do so, and the assistant under-
took to levy upon lot involved and tax sale
was had pursuant to levy performance of
such act by assistant was fatal to validity
of levy, sale and tax deed.

Reversed and remanded for further
proceedings.

Taxation €=651, 734(7)

. Where tax collector employed assist-
ant to collect taxes on property without

sion of an unimproved lot of land in the

. Town of Kingstree which was sold on

March 5, 1951, under execution for delin-
quent county property taxes. From judg-
ment for defendant, plaintiff appeals.

Delinquent taxes are collected in Wil-
liamsburg County by, quoting from the
statute, “one discreet person to be known
as tax collector.” Sections 65-2601 et seq.
of the Code of 1952. (There were pres-
ently irrelevant amendments in 1955, 49
Stat. 168.) And the pertinent powers and
duties of the sheriff under the general stat-
utes are devolved upon the tax collector.
Section 65-2604.. The statute makes no
provision for a deputy or assistant to the
collector. However, the collector em-
ployed an assistant, without statutory au-
thorization, who was at the time here con-
cerned a Mrs. Duke; and required her to
give bond. She undertook to levy upon
the lot, pursuant to which the sale was
had. The latter fact is fatal to the validity
of the levy, sale and deed pursuant thereto.

The authority of Barrincau v. Stevens,
1906, 75 S.C. 252, 55 S.E. 309, is control-
ling. In that case the levy was made by
a magistrate’s constable, who was not a
deputy of the sheriff whose duty it was to
make the levy. The statute was cited, then
section 423 of the Civil Code, now section
63-2766 of the Code of 1952, which re-
quires the sheriff to make a levy under an
execution for unpaid property taxes; and it
was held that a sale upon the levy by the

STATE v. FULLER ©» . . :
Cite as 93 S.H.2d 463 : 8.C. 463

constable was ‘ineffectual to convey title

to the purchaser at the tax sale.

The Barrineau case was cited and fol-
lowed in Vallentine v. Robinson, 188 S.C.
»* is Se 197, 203, where it was said,
he [a legally unauthorized as-
sistant tax collector] was in no sense such
officer as was authorized by section 2855
of the Code [of 1932, now Sec. 65-2766 of
the Code of 1952] to levy a tax execution.”
The latter was quoted with approval in
Eat National Bank of Holly Hill v. Hair
200 S.C. 36, 20 S.E.2d'219. And in Le :
sath v. Leysath, 209 S.C. 342, 40 S.E.2d 233
levy by an assistant tax collector, who was
not authorized by law, was recognized as a
defect in the forfeiture proceedings but
assertion of it was barred by the statute of

limitations, which is not involved in this
case,

Respondent cites Commercial Bank of
Augusta v. Sandford, C.C.1900, 103 F.
98, 102, but the facts clearly differentiate it
from the case at bar. There the tax exe-
cution was levied by a deputy in the office
of the sheriff, whose appointment had not
been confirmed by the judge. The reason-
ing and conclusion of the court follow:
lhe tax execution is directed to the sher-
iff or to his lawful deputy. By [statute]
the sheriff is authorized to appoint one or
more deputies, to be approved by the judge
of the circuit court * * *, Such ap-
Pointment shall be evidenced by a certificate
thereof, signed by the sheriff. But section
‘15 provides that the sheriff * * * may
appoint special deputies * * * for the
Service of process * * *, This section
does not say that the appointment be in
writing. Taking this in connection with
the fact that this man * * * was de
facto a deputy, and that his acts have been
recognized by the sheriff, it would seem
that the levy, although irregular it may be,

Reversed and remanded for further pro- :
ceedings consistent with this opinion.

Reversed.

TAYLOR, OXNER,’ LEG
7 ’ G
MOSS, JJ., concur. =

,

The STATE, Respondent, -

. v.
Raymond FULLER, Appellant.
No. 17173. ,

Supreme Court of South Carolina,
June 14, 1956,

Murder Prosecution of person alleged-
ly having I. Q. of 58 and' mental age of 8
or 9. Upon conviction, the General Ses-
sions Court, Spartanburg County, Bruce
Littlejohn, J., imposed sentence af death
and’ defendant appealed. The Susceme
Court, Taylor, J., held, in part, that in-
structions, taken as a whole, properly re-
sented elements of malice and ri
and instruction expressly authorizing ses
to consider whether. or not defendant vais
mentally capable’ of having malice was
properly refused. ;

SVMOVL UP mass

Judgment affirmed.

See also 227 S.C. 138, 87 S.E.2d 287.

!. Criminal Law C=46

The test of criminal responsibility is :

was n i
L jaw — th acts of an officer mental capacity, or want of it, sufficient to
: ough his title (to the office] distinguish n Pe
may be : sh moral or legal right from mo
ii! fcc le on so far as they con- or legal wrong, and to recogbine peas
ublic or the rights of third per- act charged ‘ 3 ;
- é as mora
paige Ralls County’ v. Douglass, 105 U.S . orally OF aepaiy eo
aa 9 7. ’ - . .
‘~, 26 L.Ed. 957.”: In the case in hand 2 Criminal Law ¢=310

there wa
as no such office as i

assista
collector, ' tees

The presumption of incapacity to com-
mit crime, arising from evidence that de-

SOP AR eg tg? vies


4 @|

ct
wo

464. 8:6

fendant had mentality of one under four-
teen years of age, obtains only when it has
been shown that defendant has. not lived
fourteen years.

3. Criminal Law €=50

The doctrine that a criminal act may be
excused or mitigated because prompted by
an irresistible impulse, where offender has
mental capacity to appreciate his legal and
moral duty in respect to it, has no place in
the law.

4. Criminal Law €=822(6), 829(3)

In murder prosecution of person al-
legedly having I. Q. of 58 and mental age
of 8 or 9, instructions, taken as a whole,
properly presented elements of malice
aforcthought, and instruction expressly au-
thorizing jury to consider whether or not
defendant was mentally capable of having
malice was properly refused.

5. Criminal Law €=1150

In absence of showing of abuse of dis-
cretion by trial judge in refusing to grant
motion for change of venue on ground that
defendant could not obtain fair and impar-
tial trial, Supreme Court will not interfere
with trial court’s ruling. ‘t

$. Criminal Law C121

In murder prosccution of person al-
legedly having I. Q. of 58 and mental age
of 8 or 9, who admittedly fatally shot occu-
pant of automobile parked in secluded area,
refusal of trial court to grant change of
venue, was not, under circumstances, an
abuse of discretion.

7. Criminal Law €=1158(3)

Whether juror is indifferent in cause
is question of fact, and is not reviewable in
Supreme Court ‘unless it appears that con-
élusion of Circuit Court was wholly with-
out evidence to support it.

8. Jury €=103(5)

Where, though juror, in murder prose-
cution, stated on voir dire examination that
he had formed opinion as to guilt and pun-
ishment, and ‘that it would take testimony

93 SOUTH EASTERN REPORTER, 2d SERIES

to change his opinion, but that he was not
conscious of any bias and would render
verdict according to law and evidence, re-
fusal of trial court to dismiss juror for
cause was not, under circumstances, im-
proper. |

—_——_.—_—

- © Yates Brown, J. C. Mooneyham, L.
W. Perrin, Jr. and Edward P. Perrin,
Spartanburg, for appellant.

Solicitor J. Allen Lambright and Sam R.
Watt, Spartanburg, for respondent.

TAYLOR, Justice.

' The Appellant, Raymond Fuller, was con-
victed of murder at the June, 1955, Term
of the Court of General Sessions for Spar-
tanburg County and sentenced to death as
provided by law.

The facts are undisputed. On the even-
ing of August 13, 1952, Appellant, who lived
and worked on a dairy farm South of the
City of Spartanburg, carrying a borrowed
22 caliber rifle, drove a panel truck approx-
imately five miles to the West side of the
Spartanburg Airport and parked in a se-
cluded area. A car appeared, ‘but the driv-
er turned around and left upon seeing the
parked truck. Appellant then moved his
truck to another location and proceeded by
foot to where one Lynn Baxter Moorman
and a lady friend were parked in Moor-
man’s car. Appellant, a Negro, wore dark
trousers and no shirt or shocs. As he ap-
proached the left side of the parked car,
Moorman attempted to start the motor,
and Appellant broke the glass near the
driver with the butt of the rifle and fired
one shot into Moorman’s head in the arca
of the Icft temple, the bullet passing
through the brain, causing death at approx
imately 1:30 A. M., at the Spartanburg
General Hospital.

_ Appellant removed the car keys from the
switch and took from the lady a red pocket-
book containing a $10.00 bill, her wrist
watch and compact. From the deceased, he
took a wrist watch and billfold. He then
returned the keys to the lady and left, walk-
ing back in the direction from whence he

STATE v. FULLER» |
Cite as 93 8.H.2d 463

had come, entered his truck, and returned to
his home where he hid the items at vari-
ous places about the farm. Upon being
confronted with the fact that his finger-
prints appeared upon a picce of the broken
glass, Appellant related to the.cificers what
had happened, retraced his route, carried
them to the farm, and secured from two
holes in the ground the parts of the lady’s
pocketbook, both watches from a corner
of a dairy barn, the deceased’s billfold from
a feeder flue of another building, and the
compact from the sill ofa vacant house.

The deceased’s billfold when turned over
to the officers contained a $50.00 bill, a
$20.00 bill, a $2.00 bill, and a $1.00 bill.
The officers inquired of Appellant what had
become, gf the $10.00 bill taken from the
lady. He explained that the man’s pocket-
book when taken contained a $50.00 bill, a
$10.00 bill, a $2.00 bill and a $1.00 bill; that
he had'used the $10.00 bill from the man’s
pocketbook and the one taken from the
lady’s to change. a $20.00 bill. The $1.00
bill had written across the face of it in ink
the names of the deceased, L. B. Moorman,
and Jack Cantrell. :

{ i

Upon trial of the case, the defense con-
tended throughout that Appellant is a men-
tal defective to such an extent that he was
incapable of malice, and testimony. was
introduced to the effect that. Appellant had
an I. Q. of Fifty-cight and a mental age
of eight or nine years.

A portion of the testimony of Mr. J. Rod-
crick Hallum, a clinical psychologist for the
Spartanburg Mental Health Clinic, who
testified for the defense was as follows:

“Q: Now, is there any question in
your mind, that Raymond Fuller is
sane? A. No question, sir.

“Q. No question but what he is
sane? A. That’s right. '

* * * * *-

“Q. Do you think that he can tell
right from wrong? A. To the extent,
sir, that someone with an I. Q. of fifty-
eight, and roughly a’ mental age of be-
tween cight and nine. : ,

93 S.E,.2d—30

a JUG ed S.C. 465

»“Q.. All: right. You say a mental
age of. between eight and nine? A.
That’s right.

“OQ. ~ You mean that a child of the
age of eight and nine, or a mental age
“of eight and nine? A. I am afraid
that I don’t— ~ oe ie

“Q. <A child of eight or nine years
.old, with normal intelligence, is that
- what you mean? A. In part, sir. But |
Raymond's intelligence, with a mental
-age of eight or nine, is different as I
tried to‘say a while ago, as between
“someone of Raymiond’s age of twenty- +
seven. oo. 0! {

. “Q. Be quite different from a child

_ eight or nine years of age with normal

; intelligence, wouldn’t it? A. I'°
wouldn’t say quite different, sir. I
would say that it would be different.”

’ Dr. Samuel R. Kilgore, psychiatrist, also
testified for the defense that in his opinion
Appellant was sane but that his ability to
comprehend and to manage himself was
definitely limited.

Dr. E. N. Burn, a psychiatrist at the
South Carolina State Hospital, did not
agree with the conclusions reached by Dr.
Kilgore and Mr. Hallum.

Appellant’s exceptions present, accord-
ing to the’brief, the following five ques-
tions: out :

11, Should the Trial Judge have
charged the jury upon criminal respon-
sibility? :
_. “II, Should the McNaghten Rule
. be replaced?

“III, “Should the Trial Judge have

charged the jury as requested upon the

“mental ability of defendant to have
malice ?

“IV. Was it an abuse of discretion -
for the Trial Judge to refuse a motion
to grant a change of venue?

“V. Is a juror who has formed an
opinion that an accused is guilty and
who has a fixed opinion as to punish-

puna 38

atau

ar
55

(Ricans ane

Me ne Be ied a SUE

Bs a a

294

8. 0.

on with my charge, that the defendant
is entitled to any reasonable doubt
arising on the whole case, or arising
on any defenses that may have been set
up by the defendant. If upon the whole
case you have a reasonable doubt as to
the guilt of the defendant, he is en-
titled to that doubt and would be en-

' titled td ‘an’ acquittal. © -Likewise, if
you have a reasonable doubt .as_ to
whether or not the defendant has made
out his defenses, then he would be en-
titled to that reasonable doubt. : But,
Mr. Foreman and gentlemen of the
jury, when I use the term ‘reasonable
doubt? I do not mean by that some
whimsical: or imaginary doubt. It is
not a weak doubt.
doubt. But it is a substantial doubt, a
doubt for which you can give a reason.
Now, that may arise out of the testi-
mony you have heard in the trial of
this case relevant to the issues that we
are trying. It may arise out of the
lack of testimony or evidence material
to the issues that we. are trying. It
may arise out of the credit, or it may
arise out of the lack of credit that you
give to the testimony of any witness
,or witnesses whovhave testified in the
trial of this case.

“Now, Mr. Foreman and gentlemen
of the jury, when I use the term
‘credit’, that simply means what witness
or witnesses, by his or their testimony,
carries to your minds the conviction of
the truth in this matter that you are
now investigating. In weighing the
eredit of the testimony of any of the
witnesses, take into consideration the

manner, the demeanor as they testified
on the stand there. Take into con-
sideration whether or not there has
been any bias or prejudice, one way or
the other if shown by the evidence of
any witness who has testified. Has he
shown any bias or prejudice either to
' the State or to the defendant on trial?

Take that into consideration, Take

into consideration whether or not there

has been any contradiction of any mate-
rial evidence or testimony given by any

It is not a slight .

87 SOUTH EASTERN REPORTER, 2d SERIES

witness by the testimony of any other
witness. Likewise, take into consider-
ation whether or not there has been
any corroboration of the testimony of
any witness by that of any other wit:
ness. Then use your God-given com-
mon sense and determine what credit
you shall give to the testimony of any
witness who has testified in this case.”

[15] Proper evaluation of the portict
of the charge to which exception is take
requires also that we view it in the ligh
of the circumstances of the trial (with re
gard to corroboration’ or contradiction
witnesses) in which it was received, am
presumably considered, by the jury. It ap
pears from the record that the decease
was mortally wounded by a rifle bull¢
fired through the closed window of an auto
mobile parked at night on a country road
His companion, a Mrs. Hudgens, testified
that the assailant then robbed her of her
watch and her pocketbook’ and made het
give him the deceased’s . billfold, but the
she could not identify him beyond the fact
that he was dark. In addition to Mr
Hudgens, the State offered twelve witnes!
es, to whose testimony we shall briefly refer

Dr. W. D. Hastings, who first saw the
deceased in the automobile outside t
emergency entrance of Spartanburg Hor
pital,
after the robbery, testified as to the cau®

of death. So also did Dr. Charles M. Dak. ¢

who performed the autopsy.

B. B. Brockman, the sheriff of Sparta 4
burg County, testified as to the investif? |
tion made by him on the night of the shot |
ing, and as to the defendant’s confes#*
made about six days thereafter in his pr —
ence and that of O..L. Brady, Chief of

South Carolina Law Enforcement Divi
Under Sheriff Brockman’s testimony thet
were introduced in evidence a wrist wat?
and a billfold previously identified by
Iludgens as having been taken from het ™
and there were identified #

the assailant,
These #

man’s wrist watch and a rifle.
ticles, the witness testified, were,
course of the confession and in the presem™
of the witness and Chief Brady, located #

whither Mrs. Hudgens had drive —

oe

aan

in OF

~ STATE v. FULLER

S.C. 295

Cite as 87 8.H.2d 287

te defendant on and near the premises
where defendant lived. Sheriff Brockman’s
‘estimony was corroborated by that of Chief

Wrady.

Mr. Troy Steadman, who finger-printed
we defendant after his arrest, testified that
te delivered to the South Carolina Law En-
sercement Division the card on which the
fegerprints were impressed, and also the

fle before referred to.

Lieutenant J. IF’. Faulk, of the identifica-
sm bureau of South Carolina Law En-
‘eeement Division, testified that in the
~urse of the investigation of the crime he
ved lifted several fingerprints from the de-
eared’s automobile, including one from the
cass of the left front door; that he had

pared this print With those of the de-
elant’s fingers taken by Mr. Steadman,

ond that it was identical with the print of
*“e middle finger of defendant’s left hand.

M. N. Cagle, a ballistics technician of
. uth Carolina Law Enforcement Division,
‘entified the bullet taken from the body
{ the deceased as having been fired from
‘e rifle before referred to.

Mrs. Hattie Lee Strahan, a sister of the
eceased, identified the man’s wrist watch
‘efore referred to as having been the prop-
‘ty of the deceased.

Mrs. Gladys Coleman testified that she

‘ad known the defendant for about two |

rrars and had, a few days before the com-
"sion of the crime, loaned him the rifle
“tfore mentioned.

In reply to the evidence offered on the
ti of the defendant, to which we shall
wn advert, Mr. Grady: Coleman, with

“m the defendant had worked for sev-
°F eo and Doctors Carrigan and Burn,
mite outh Carolina State Hospital, testi-

* to the effect that the deféndant, while

ad a
low order i i
e€ of intelli ence, We
8 ’ as not

The defendant did not take the stand, and
ange testified in his behalf,
.. & em, a physician, testified that on
ae in question, when Mrs. Hudgens

‘o the Spartanburg General ‘Hospital,

she made a statement to him which on
her examination in chief she had denied
making. The statement referred to had
no relation to the crime for which defendant
was on trial, and the testimony of this wit-
ness was admitted only as bearing on the
credibility of Mrs. Hudgens. The only
other witness for the defense, Dr. Samuel
R. Kilgore, a psychiatrist, testified that his
examination of the defendant, made at the
request of defense counsel and pursuant to
an order of the court, revealed that the
defendant had the mental age of an eight
year-old child, but that he could not say
that he was insane. Cf. State v. Gardner
219 S.C. 97, 64 S.E.2d 130.

Let us now consider in the light of the
foregoing the portion of the charge: with
which Exception 12 is concerned. In
State. v. Rogers, 1917, 30 Idaho 259, 163
P. 912, 916, it appears that the trial judge
charged the jury, in part, as follows:

“*The court instructs you, as a mat-

. ter of law, that when the defendant
testified as a witness in this case, he
became as any other witness, and his
credibility is to be tested by, and sub-
ject to, the same tests as are legally
applied ‘to any other witness; and in
determining the degree of credibility
that shall be accorded his testimony, the

jury have a right to take into con-.,
Sideration the fact that he is interested.
in the result of the trial, as well as his

-demeanor and conduct upon the wit-
ness stand, and. during the trial,. and
whether or not he has been contradicted _
or corrobcrated by other witnesses or
circumstanices,’,” '

In considering the exception relating there-
to, Chief Justice. Budge, speaking for the
court, pointed out that while this charge
had no doubt been frequently given by trial
courts in that State it was nevertheless
erroneous because it singled out the de-
fendant and particularly directed the atten-

tion of the jury to his credibility as. a wit-

ness. In the later case of State v. Farns-
worth, 1932, 51 Idaho 768, 10 P.2d 295, the
court found no fault with a charge to the
effect that in passing upon the credibility
of witnesses a jury may consider, among

UNIVERSITY OF ALASAMA

SCHOOL OF Law


}
‘

other things, to what extent their testimony
has been corroborated or contradicted by
other testimony, because the instruction was
general ‘and applied .alike to all of the
witnesses for the state and for the defend-
ant. . Such also was: the basis of the de-
cision in Moore v. State, 1927, 175 Ark.
391, 299: S.W. 386, sustaining a similar
charge. ;

[16-18] In the case at bar, it is immate-
rial that the testimony of the defense wit-
ness Dr. Kilgore, unlike that of each of the
State’s witnesses on the issue of sanity,
was uncorroborated, for Dr. Kilgore’s tes-
timony at best tended to establish mental

subnormality, which is not a defense. In ©

relation to his testimony, therefore, any
error in the portion of the charge under
consideration was harmless. In its relation
to the defendant’s failure to testify, how-
ever, this part of the charge has given us

much concern. Sheriff. Brockman’s testi- °

mony concerning the confession, a most
important element of the State’s case, was
corroborated by that of Chief Brady; and
there was no contradiction of it. We can-

not but conclude that the trial judge’s in- |

struction to the jury that they should, in
weighing the evidence, take into consider-
ation whether or not there had been any
contradiction of any material testimony of
a witness by the testimony of any other
witness, directed the attention to the de-
fendant’s failure to testify in contradiction
to the testimony just referred to, as surcly
as if he had mentioned the defendant by
name; and that so to instruct was, in the
circumstances, prejudicial error. Strength-
ening us in this conclusion is the fact that
the trial judge failed to charge that the
defendant’s failure to testify should not be
considered against him and that no infer-
ence of guilt should be implied therefrom.
By Exception 13 appellant contends that
the trial judge erred in failing to so charge.
It does not appear that defense counsel re-
quested such charge or objected to its
omission; but that fact is of no consequence
here, the death penalty being involved.
State v. Green, S.C., 86 S.E.2d 598.

[19] The State’s case was a strong one,

and we are not unmindful of- the rule,

296-80. 87 SOUTH EASTERN REPORTER, 2d SERIES

usually applied with regard to admissibility
of evidence, that where guilt is conclusive
proven by competent evidence and »
rational conclusion can be reached othr
than that the defendant is guilty, judgme=
of conviction should not be set aside b&
cause of insubstantial errors not affecting
the result. State v. Burnett, S.C., 85 SE
24 744. But we cannot say that the err
here was insubstantial, or that ‘the rese
was not thereby affected.

Reversed and remanded for new trial.
BAKER, C. J., concurs in ‘result.

STUKES, TAYLOR, OXNER,
LEGGE, JJ., concur.

w
© E KEY NUMBER SYSTEM
T

Marshall B. SWINDLER, Appellant,
ve
Allen PEAY, Respondent.
No. 16998.

Supreme Court of South Carolina.
May 10,1955.

Action against driver of truck whe §
struck and killed a cow belonging to pa e
tiff wherein truck driver filed a courte |
claim for personal injuries and damagt ®
his truck. From judgment of the Cost
Court, Richland County, Legare Bates, »
in favor of truck driver on his cour®
claim, the plaintiff appealed. The Supt
Court, Legge, J., held that substance ©
instructions requested by plaintiff conce® &
ing duty of operator of motor vehicle ®
avoid injuring animals on highway 3
covered by ‘court instruction and requ
instructions were properly refused.

Affirmed. }

nav T%3 LOSWINDLER ¥. PEAY <2 Hivoe 8.0. 297
Cite as 87 8.E.2d 296

+ Trial C=260(1)°

It is not error for court to refuse re-
sested instructions, even when they con-
cn correct and applicable statements of
se law, if their substance is fairly covered
» instructions given. |

t Trial €>260(7)

In action against owner of truck
sbich struck and killed a cow belonging to
satiff, substance of instructions request-
| by plaintiff concerning duty of operator
{motor vehicle to avoid injuring animals
highway was covered by instruction
¢ven by court and requested’ instructions
«ete properly refused. | vine

LYrlalew2an eT eS ny at

In action against driver of truck which
eeuck and killed a cow belonging to plain-
* court’s instruction containing portion
{statute making it unlawful for owner: of
eesti animal to wilfully or negligently
nit such animal to run at large but mak-
¢ bo reference to penalty for violation of
re was not erroneous, .; Code 1952; §

—__~—-———

Frank L. Taylor, Eugene F Rogers, Co-
welia, for appellant. © O° fF

Foy A. Powell, Melton Kligmari, Colum-
*s, for respondent. >: : 1G OG) ouTtt
LEGGE, Justice. eee

M™ the night of November 4, 1953, re-
— truck, which he was driving on
ae Highway’ 555 in Richland county,
. ~wk and killed a cow belonging»to appel-
“ry who thereafter. brought this action
rm rata: actual -and punitive. »; The
— charged that.at.'the. time of the
"04 respondent’s. truck’ was off the
oa that respondent was: negligent
phon css in driving at an excessive rate
oth yin failing to keep a proper Jook-
along in not having -hisvehicle under

**r..controli Respondent, answering,

+4

_, Weert contributory negligence and reck-

ome on the part of ‘appéllaht in’ allow-
* cattle to. rufyat large;' he alleged
MR E2d—19%

that. the accident was caused by the stidden
appearance on the highway of two of appel-
lant’s cows, and that despite his efforts he
was unable to avoid striking one of them;
and he set up a counterclaim for personal
injuries "and for damage to. his truck re-
sulting from said collision, charging that
such injuries and damage were caused by
appellant’s negligence and recklessness as
aforesaid. The case was tried before the
Honorable’ Legare Bates, Judge of the
Richland County, Court,;”and a jury, and
resulted. ina verdict in. favor’ of, the re-
spondent omhis counterclaim, in the sum of
$454.54. ‘Counsel agree that there was suf-
ficient evidence. to support the verdict;
and the only issues presented by this appeal
pertain to the trial judge’s ;chargeé. to; the
jury,towit; |

1, t g ft? S
itt no od fins

1.) Was it etror to refuse to charge, as
requested by appellant, that the operator of
a motor vehicle is under a duty to use’ ordi-
nary care to ‘avoid injuring animals on the
highways? onl} tiga

2. Was it error to refuse to charge, as
requested. by” appellaht, that an ‘animal
astray on a highway without negligence on
the part of its ownet is not an outlaw’ or
trespasser, and that the operator of a motor
vehicle owes the duty of due care to avoid
injuring it? ei

3. Was it error, this being a civil case,
to charge Section 6-311 of the Code, which
is a statute criminal in nature? ‘

[1], In considering, the first two of
these questions, it is necessary for, us to ex-
amine the general, charge, for it is elemen-
tary that “it is not error, for the court to
refuse requests. to charge, even ‘when they
contain, correct. and applicable statements
of the law, if their substance is fairly cov-
ered in the instructions, given”. Levesque
v. Clearwater Mfg. Co., 209 S.C. 494, 41
S.E.2d 92,95; Little v. Atlantic Coast Line
R..Co., 211.S.C..492, 46 S.E.2d.59. . ,

[2]| The general charge. bearing on the
questions now undef consideration, was :as
folowsssrmiig at ere boston. tals

UNIVERSITY CF ALABAMA
SCHOOL OF LAW

ra
ec
*
q
Fs

Slave DELP LP (sp. 2) Coke CT NOME: Del phy’

Louisa County, Va., trial June 10, ebvets
(?), Slave of Tom mitchell, convitted of try-
ing to poison Mrs. Isabella Mitchell, valued
at $200, and sentenced to be hanged on July
26, gist Deputy attested that the execution
took place on this datey the certificate being
dated August 10, 18

*. re, of Va., Aud. Recs,, Box 3, Item 153,
j*nvelope.

Complef littird th Lon 2352, Executive Papers of bov.

foul Ly a Les he — yes, She Wis,


Delphy was t havvidan milkmaid on fhe plantation of "fp. hones Mitchell.
‘she wes ako tee terror Of her fellow staves hectuse they feared her as a ‘Conjurer:
She hated her mistress, ltrs. /sabla Mitehell, and Swore a voodoo daft pat She Would
See He white biteh tn the ground before the Summer was out: Sp She prepared 4 caa-

tochive Of poudered glass aad poke root wits which she spied missus? coffee. Foul

taste thwarted fatal results abao.egls antwals died whee Suspriiaus tawny ted Same
to thes. kitchen wench contessed aching wn Difphy 3 orders because she feared the

00909.» Wits the truth out, villary Hed but was picked up Soon by tre focal patrol,

Daniel DeSaussure Waiterboro So. CAROLINA 5-(5-1874
B |
© MURDER DATE OTHER

oTiv

SYNOPSIS

No details availabse.

TRIAL

SOURCE

The Charleston News & Courier f-1-1875 164 Giving resumé of events

FRANK NEWTON OFFICE SUPPLY=DOTHAN

Haroughost SC during the previous yar, cites this execution under the


“ash Desseseau

NAME PLACE — CITY OR COUNTY DOE & MEANS

Bao Sa Pa (teeyo i. E.T=2hi=1936

DOB OR AGE RACE OCCUPATION RESIDENCE . GEN

25 / 20 Black

RECORD

James Mixon

CRIME DATE

Murder 2-28 =19 36

VICTIM

METHOD

R. J. Kelley | tite tes 65 |Bludgeoned = gasoline tank crank and brick

Robbery

SYNOPSIS

Keeley operated service station on Bishonville-Sumter highway just beyond Bishopville town ligtits,
Allled about 10:30 PM as he was closins for night to go to home across hishway, Both tank crank and
brick found by body, Son of Kelley said fahter had betteen 80 and 100 dollars on person and this
was missing, He -was found -unconscious—on fivor—in-corner-of store, “ife had become aiarmed wiren
he did not come home and went to investigate. Heard him groaning, Taken to Florence hospital but

+ 3 y 3 Puram + anive toeked them ana had
eonseiousness,—he_had drained the-cas_from tanks, _leekedthem ond had

dani vat
VetacuTt Ww UIToOuyT z te

turned off outside lights. Was weighing out peas when struck as he stood behind counter and fell
in-corner, Strick a-number of times, A Bi shopville man wha had heen sta station just before res
ported presence of two young blacks, They were arrested on AM of 2=29 and it was found they worked
for Kelley at station, Footprints Ms of someone running found in a field back of store and they
were found to match James Franklin, one $f the boys, who at first denied ever having gone into field,
When shown that prints matched, he said he had been in ficld at another time, The sweater sleeves
on other boy, James Mixon, were cut off and officers theorized that he mipht have cut off and burned
to get rid of bloodstains, He claimed mother had cut off a-month previously, Mother and sister told
conflicting story, COLUMBIA STATE, Columbia, 5. Cy B=1=1936, boys taken to Sumter and then to-an
undisclosed place for safekeeping, STATEJ-2-1936, Taken to State Penitentiary on 5=2,F_ankLlin, 16,
and Mixon, to, Franklin said Mixon-came by—station—and toid Frenkbin he—was soins $945 —sore Poney
and towatch out for him, Franklin watched out window while Kelley wranped some packages for Mixon,
As—he was measuring peas_and stooped over, Mixon hit him with ne wrench, Franklin ssid he then

ran home and went to bed, Next AM Mixon went to house and gave him one 45 bill, two “1 bills and
$1_in change, telling him to keep mouth shut or he would kill, Mixon denied any knowledge of murder,
STATE, G- 3219 %6,

d— without noestnine
SHIA

hininperhin dy +

“ye Feeling -ran—so-hi atthe time $f the killing that it was vhougnt best to spirit negpoes away
with two being carried to Columbia and one to Sumter fore safekeeping, Only 30 minutes needed to
-impanel_jury,—Dr,—R.—B,—MeCutehen_test-ied kK te i z ;
other blows, (, M, Stuart, Supt, of Bishopville Schools who was at station a few minutes before
testified to presence of two blacks but could not defini ; i ‘ :
turned state's evidence and testified that he was working at station for Kefley and that Mixon
had been hangingaround for several hours, He stated that as he was locking up the pumpms Mixon
told him that he was going to rob Ketley and threatened him if he told, He said that Wash
Desseau then came around from behind station and told him 'that goes for me toot referring to
Mixon"s threat to Kill him. A few minutes after Stuart left, Mixon went into store, according
to Franklin's testimony, and was buygng groceries. Desseau remained in doorway and threatened

i * a aid Desseau had hand in pocket at time and he did not know what
he had in it, He went to one of windows and heard Mixon ask for peas and while Ke@ley was getting

r ‘ ws y e
stated that he started to run when he saw Desseseau strike Kelley and that he ran acrossa plowed
field back of station to his home, He went to station next monrj ng indi i

back home. Mixon called him, again threatened, and gave #8 in bills and change. Franklin hid
the money in field and upon being arrested later carried officers to the spot and only about )0¢

Waar ecovered,—Aiva +, Kettey,—son-of-murdered Malt, ext testified as to condition of staton
when he arrived that night and to the fact that he knew father had about #100 all of which was

1

Ot rso6t 5 aot 3am R elas eat + once op ol
he oF a a 7 J Wiis Trae SIV VU LE aU ETT et ee SPARE VVaU Lo oP ae ws © a
eLothes idenfied as belonging to Desseseau were introdueced in evidence, STAT E Patt 6-9-19 %6
Jury recommended mercy for Franklin and he was sentenced to life while Desseseau, 25, and Mixon,
20," Sthitenced to die, Jury deliberated 52 minutes, Mixon denied any involvement from stand and
Desseseau did not testify,

ine A—brick and lie «monach identified bir anff5 pane aha mak
ASSIS AEE ES WE CHE CH LGCACLELEOG BIy-O CF

COLIN TA cp amm £ an anne
VURUTIDIN™ AIT OeLlieLy yo

EXECUTION


der oge con:
nilating in hab-

Ul surisprudence of
South-

¥y the same. Ins

the robbery

on the trfal, we be-
re the public, There
gto Know them; every
ee Keneral concerns of the
«atid by publishing minute details, where the
OW Creatures ure at stake, we reconcile”
the justice af the result, or
$asmay lead toa better
8 Certainly @ very great
between ‘the criminal tits of he noes
southern states ;) d distinction which we
de Ourselves should exist, “ln the .

~ 40 no idle curios} fin wishin
tizen is interested th the
ives of felt
Beacral opinion as to
ae auth animadyersion
parked things). There i
difference

cannot:

- @puth, stealing a horse, or committing’ a robbery

en ag MEANY, ‘are ponished by death; killing a
rots hues

tls » amd imprisonment. How can such
"punishments be reconciled on principles of com-

40 / ipen

tf

The’ ease. of Joux and Lavinta Fisner, lately.
./ @xecuted at Charleston, isa rare example of a fe-.

ie being put to death for highway robbery. In
ae Britain, where a mag and his wife are tried
- for. rebbery, it ‘scidom happens that both are
 Cafivicted; it is generally supposed, that crimes
“committed on the hi npa
with men, are committed under the orders and di-
¥ections cf men only, and the guilt of the female
accomplice is th
/ €@-operation is compulsory, as may hate been the
tae with Lavinia Fisher. - Besides, the guilt of
_, tee offence in highway robbery, is putting‘the per-
"pon inifear, and a.woman must have strong nerves
("We accomplish that object. It is somewhat strange,
that Join Fisher persisted to the Jast in. his inno-
/ \- ©ence, whereas his wife made no declarations of
» - “tanocence at all. If she alone was guilty, ought
. betohave suffered? If she acted under the orders
2° ¢@ her husband, or was influcnced by his threats,
) Oaght she to have muiffered? Or, to put the ste
-- tien in another way, ouglt cither-to have en
hag Hanged for a highway. robbery! We leave to
 waers the discussion of these questions, . simply
observing, that sanguinary punishments are not
indicative of a mild or civilized age, and that
. Crimes are prevented more by the certainty, than

the severity of punishment. tat hae
. This, we believe, is’ the first-instance in’ cur
)<- S@ountry, of aman and wife suffering an ignomini-
i.» . ous death together ; both young, both calculated
ae ja pll probability for a , and both exhib-
2 guided counsels. “It is, indeed, a spectacle calcu-
se noted to awaken the most painful refiections: A
~.-- young couple, exchanging their vows atthe altar—
pledging themselves, in the presence of the Al-
Mighty, to a life of morality aud industry—bind-
_ ing themselves by the most powerful of temporal
and eterthal obligations, and ,assing from that al-
tar to wecaffold. Ingtcad of ’a lung life of useful:
és; instead of that fond endearment which re-
sults from a unity of good feclings ; instead of sce-
ing their children grow ap’ in honour, and credit,
they ‘in Crime together, are together ar-
Paigned at the: bar of-their country, inhabit the

better cnd

Pre be

“Pie

same durgeon, and are tenants of the same cold:

py uhion proves forcihl
wh be observed in entering

4 WO,
ee "This unbap

ghway by women, in company

ereby lessened, for frequently such:

mis

y the caution’
nto the mar-

‘pit tnd?

the result, or
¥ lead to a better
€ one totally un.
mstances, (if we are
import of words) in-
dire preening to condemn the sacred and serious
proceedings of a long expericneed Court and enlight-
ened Jury, with as+much knowledge of the facts to
sanction such Case, asthe people that now inhabit the
most distant region of the pobe , But the gentleman
«asks if cither of these a unate persons ought to
‘have been executedfor highway robbery? Expouaders
of the law, a5 well as various writers on the subject,
_ have long since ably answered the question in the
| Affirmative. -In Europe expetience has shewn the
_ Sttual necessity “of establishing the weighty penalty
: Of death for.an offence so dangerous in its consequen- |
ces, and itis very wisely thought expedient in this ;
(extensive country, to check its early progress. And ,
/ if, in the fare of this provision, for such heinous offen: :
ces, prisoners are to escape with: impunity, what. is
the utility of law—what becomes of that spirit of true
“Justice, that should always actuate civilized commu-
nities? tthe perpetration of crimes, touchin the vi-!
tal prosperity of our state, is to unpunished, then you |
at once establish.a precedent, ‘not only injurious toa”
Jatge portion of our population, but one immediately ,
affecting the peace and tranquillity of the heart of our }
country Sy es : ARISTIDES. |

a SB eR ee ee o> LN DON TANS 28:

The number of eminent persons, nativesor close-
ly connected with Scotland, who. have died with-
“in these 12 months, is rather extraordinary, and
“®reater than we-ever remember within the same
Period. Among these were the representatives of
seven of the most ancient and noble families of this
kingdom, viz. the Dukes ton, Buccleuch,

‘of Hamil
‘and Lenox ; the Earls of Errol and Englinton; the
Countess of Rotches, aud Lord Somerville ; the
‘Right Hon. Robert Dundas, Lord Chief Baron ;
Adam Rolland, Esq: of Gask ; Professor Play fair,
Professor Rutherford, Principal Hill, Principal
Playfair, and Mr. Watt, the celebrated inventor
of the great improvement upon steam, the stéai-
engine, &c. Oy Re
In. speaking of the India trade, the Lérden
Morning Chronicle observes—*'The absurdity of
continuing to exclude British merchants from the
‘ trade between Canton and the European and Ame-
i Tican States, arises from the construction put ups
On’ the clause of monopoly, allowed to the East-
i India Company in their fast chatter. We are
(happy to find that this question is now: under the
consideration of acomimittee of merchants and
jitis probable will be submitted to the considera:
ton of Ministers, at an carly Cay, At this time
the Americans liave about 14,006 tons of shipping
employed in this trade, and probably not less than !
Ԥ,000 seamen.* In the cour
/more than 11,600 chests of te
| Canada, not by the Bast India House
freny Canton, ii American bottems:”
other remarks, the Iediter observes: :
“Can any thing be conceived more alisurd.th an
to stiut_ out-our Own merchanty from a lucrative
Lranch oF commerce, Top tie purpese, as wey ap:
pear (for such is the practical result}, of secure
the trade tothe Dutch and the American: pang
this too, while our own merchants cannet fod em-
ployment for their shipping ’—The Fast India
Company, in the nature of things, never cut se
cure to themselves this branch of the China Trade.
‘They would be no way injured by at unce allew-
ing a liberal construction to be put upon their
Charter—a_ construction which would secure to
them'the supply of Great Britain, but allow her
Merchants to participate in the Ripply.of Rarepe,
, America, and the West Indies Indeed, the te:
sult Would be, that Kritish teapital “and indusiry
would soon secure, to this ceuntry, the whole enn
luments of the trade. were “Peas a tia

f

>

s€ of the ¥ear 1415, !
maoweredimported mita
‘i bur directly
‘Miter some

Howed ‘

_ly rich and beautiful.

te

bby medical. genttes,

célumns, of te Corinthian of

ifeet.elevation, which are to

2 4

“cupola, crowned by a tripod.

of the monument will be apw:
its effect, as exhibited in the d
The

rising ground on the left of th
Ayr to Mayhole, ‘and in the i
Alloway Kirk, and the old brid
most conspicuous places rend
poem of ‘fam o’Shantar, w
cd the masterpiece of Burns's
consider force and accuracy 4
interesting and awakening coin)
brought forward—or the powe
morous the pathetic and the su§
which is hardly to be met wit
position in any language. ‘The
the site of the monument is sur
ingly picturesque. «To the tra
Ayr, from the top of Carrick
must appear with noble effect, |
cally on the summit of a sloping
of which flows, in slow: regress
ters of the Doon. At adistance i
appear the spircs and irregular
ings of the town of Ayr: the int
finely variegated with rich looki
tations, adorning the numerous
with which the country abounds
ate vicw are the dark brown hil
der which are the classic.“ bank
ny Doon,” Deautifully clothtid v
one side rising precipitously tre
a gentle curve, Oceasioning aw ss
in front, and half concealed wich t
ry looking Fuins of Alloway 8
Sin,” and the anid brig of Dew
stance of which ‘Lam OW ahanter,

“Bardy; saved his distance te on th

alittle further en is seen thicdiy
cred as the birth-place tothe
scche to the north gs enriched
Ot the-bav of Ayr; appearing teks
bounded by the taw CPOE aoa ts
Cistatit isles of Cuisbraes. tit rhs
of Cusnmy haa At tHe se Soeie
derthe view ‘fromthe rape @e
the richest to he met Withoia Brie
NOW sayy hat Rs iterest aia, ae)
in¢regced by theca rie 43
ofthese tenidrks by wie nae
the poet's birth pla, Rear ies
his WEES. WH Pieocrgert ele

the ataitat the Mranvers

oy

a

The tube uf Now 1 oa
the Dac tars Comtiness:
Suit was brought bit Cea,
his owite. in Order tate
amd Vitel OThe pale Paes see
Was Unable 16 engage gt
of natural i peduriest

Lope |

.

ca
the wite ow ho Prayer thea
He was adtritted tyak
the wifes it Wat He im
abd Rer proyuiney ish ‘
ater heating all tiv fsec
tie’ wile fron cise «
“urnguthe ach cre
Repke wea rtp oer a;
ATH er et hs fee ko
and fais oe
hee never ben gn wt:
s} et } fixz ie arly te

bur

a

a
{

UGS oth

hat weal,

attendee
NVulurel. Carissa

aA renmark able Jewle, is

piper
ae 8). Uber bev

Calits eto k Se?

ati a tai2
vy

Wiest 44%
fri ASE Taal
Cami tan it

One,

a

wir,

beets}

warchoused in Great Brita for exportaty 4.”

——

&


air eset pie--
ided counsels. Itis, indeed, a spectacle calcu-
PP) to awaken the most painful refiections. A

” young couple, exchanging their vows at the altar—

_ Pledging Shemuelves, in the presence of the Al-
mighty, to a life of morality and industry—bind-
ing themselves by the most powerful of tempora}
and eternal ‘obligations, and passing from that al:
etar to ascaffold.. Inatead of a lung life of useful-
Mas; instead of that fond endearment which re-

. sits ftom aunity of good feelings; instead of sce--
‘dng thelr children grow up in honour, and credit),

the plunge in crime togetlicr, are together ar-
poeg tha the: bar of their. country, inhabit the
-peme. depgcon, and are tcnants of the same cold
BEANO Se Pam yn ta

* This Unhappy union proves eat the caution
which stig. id fa observed in entering into the mar-
riage ‘etate—the reciprocity 6f feeling—the com-
. 2 of. qualitics—the union of just senti-
teats; and the moral fitness which should lead to

wuchikached ties ¢ above all, it forcibly cajoins the.

bs

ona, bea up against the frowns of fate, re-
cnbsting the encroachments of vice, and encourag-:
ing the purwitof firtue,

[COMMUNICATION
Execution of Joun and Lavinta Fisntr.
a. Kxitoa—t perceive much injustice as well as:
ve sae naaevica, in the above remarks of the
‘ dior the Now-York: JVational Advocate, touching
Execution of #4 Joun and his wife Lavinta Fisa-
"tor am 1 at ali astonished, since the ds
which these remarks are predicated, are unques-

bly, weak aad fntile: “a ‘oy é i EN, Share fe mle
“4 igsomewhbat strange,”’ says the pentleman, * that
jax Etats ‘persisted to the'last in. his innocence ;
wherent his wife made'no declaration of innocence at
ded frgen this it would scemyto his view very
ising, that, an individual should be exccuted af.
and honest verdict of a jury, because such
theaght it proper, or rather potitic, to plead

‘ter the |

- di 3 2 . : ,
- jnnoc i to the last, Why would it not’ be: fair to
© ¥¢ infer. fyom this, that the writer of any thing so: puerile
> 4Snite

cy could have reflected but hittle, before
¢ hOB consigned to the press a remark-xo Unground-

~ ed 2) Th it at all to be wondered at, that any convict,

“+ (pot torinetance Fisher in the’ ‘present. Case) sari
ie sje Leen plausibly anaart upon his innocence, when

mained even a “ray. of hope” to shield him

From the jawa of death ?. 3s this the first case ? Is it the
+. “@econd, or third, or fourth ? that ‘the astonishment.of
fs. the’ Editor’ should be so suddenly excited. ‘He

a

scannot bea Lawyer, for, if he were, he would have

“discerned by certain “ Modern Reports,” that such

" es »
ob Re

practice is not uncommon’ within the'precincts of anv

‘ ~ > of our Courts. © But let us follow the gentleman in his
| ¥ ebgument, and endtavor to convince him thereby of

 itsinconsisteficy. “ifsicalone was guilty” he: con-

‘,/ tines; Cunplying as much as though he might possibly
Me guiltless, because he merely persisted in innocence)

~ fought be to have suffered “If she acted under

ber es the erders of her busband, or was: influenced by. his

pght she to have suffered? Or, to put the

ce question mip another way,” (stl: persisting, as though

: e's have been’ ‘

‘wore fowt a6 he surmises) “ought cither to
for a ilighway Jwbbery” 2) Here
he ia di ; first, ‘to believe that she clone was puil-
yy although we shall presently shew, hy his own
orda, that he had no living reason even to surmise’

es by scandy, thet We acted under the orders of her

by his threats; and lasuy,

ot was influenced

, i : mete ignorance of ary

oe tending the case, or of any of,
may hare comt out on the trial, to prove

: “os? both : and then we sppeal in
nt, to say. whether be is

ing amingle objecton te any.
nate dece above

her, or:
‘better Ju
cia

4

Mentioned oftener than where facts require the in.

-it be proper to -execote-t mint, not on account ofthe pam tothe poor

the Bieriricts ot Ayrshire, Kyle,
ham

, :  Hangalar peti af abe

tg
BUT OW. Nic

a a"
*

U U hom. a jucrauive

thaht
pear (for such is the practical resuit), of securing
the trade to the Dutch ‘and the Américins, anc
this too, while ourown nicréliants cannet find éem-
ployment for their shipping '—The bast India
Company, inthe nature of things, never can se~ |
cure to.themselves this branch of the China Trade.
‘They would be no way injured by at once allows
ing a liberal construction to be pot upon their
Charter—a constriction which would secure to
them'the supply of Great Britain, but allow her
Merchants to participate in the supply of Europe,
America, and ‘the West Indies: Indeed, the re-
sult would be, that British capital and industry
would soon sccure, to this country, the ® hate cine

jluments of the trade, were “leas allowed tay be

warchoused in Great Britain for es portatrss.”
In relation to that part of the Menioirs ct Napa,
leon, {which was published. and suppressed in
Paris, the Editor of the Constitutioned thus re-
Mark 8 fen 2 i es b:
“This book will have as many readers as there
are persons who khow how to read, if pcrusedt by

ULranch of eominered, Tok de purpose; ay weak! ap. |

: ab ad } Sali te
“Durngcthe® serene trent in
ehepherd awArtersdiicas ¢
a yusibe r of his Pook were tres
Yuiwyle Uy wraie TRG

for

MAG ¥s
heone cer Det pew a bewerd, COU

attending sheep for ubarly Guc8 oa

Pe ea

vita rad Caregtyored Ba a
aremackable femde iy oop Os Bee
PALS Ee So ee aan 2
“* £In Satgottay the Bits
Lants st Ask? Ke Ea oY
fiteaity, bo 49st BR yoga, whe xy
fru) Ms sanatt” felt ot we ate aes
Chess de Beive  & Sone
Cane ow AN Riker rae ve!

ent

Qt ak

£2: WA

oe yet

Pypeey es 3h
fers

fared” acts

half bath wes! ps

peoguc. “Inthe statin « t

BCH EH eh A hat te :

#22 0

os

all those to whose thoughts the name of the atrre-
dited writer is present. The question here is net
either one of reputation cr celebrity, bot of fame,
universal fame!” ** "Phe laconicism and simplici-
ty of the preface, said to be sritten by tie priscn-
er’s late surgeon, Mr. O'Meara, weil eccirds
with the nature of the work itself ; at once trict
and expressive, it treats on subjects of the great-
est importance, and which will OCCUPY | Mrmep-
tous place in history. “Phe manner is very similar
to that ofthe Commentaries, while the here hin-
selfis spoken of in the'third person only, ard tot

troduction of his name. Lhe reader would per:
haps like tosce a few extracts ; our embarrass:
ment may be readily conceived, for it would be ne

cessary to cite the whole, to give an.adequate ided
of the book.” In that portioy of the- work which
speaks of the resources still remaining to France
in July, 1815, the writer observes; ** all migbt
have been repaired, but to this end, it was or

cessary to have chumicter, energy, and firmness,
on the part: of the Officers, the Government, the
Chambers, and the nation. “The country sbould
have been animated by-sentiments of honor, aud
national ‘independence, Finally, it ought to have
fixed its eyesupon Romeafter the battic of Cang,
and not upon Carthage her thataf Zama *”"

-. Pugilism—One of those brutal exhibitions,
which are penodically gotup toamust the rabble
of high and low life, took place yesterday near
Colebrook: ‘The performers were two men nam-
ed Martin and Hudson, tut oan unlucky accident
cut short the sport. “he pugitiste, instcad of fib-
bing, flooring, somersctting, bread-basketting, and
jugularizing each other, an: hour or two, brows ht
the melo-drama to a conclusion in the very seccaid
round, to the great disappoiatment of the specta
tors, who miss¢d the usual quantity of slit noses,
black eyes, and broken ribs, not to mention Ue ab-
wence of that cheering sight, a cupious flow of
claret. All this (so fate Would have it} was wart:
ing to yesterday's entertainment, for the very se

cond blow struck by Martin broke Hudsot’s cod]
lur-bone, and put anendtothe fight. If this event
had happened two score rounds fater, 1t would
have been a fine catastrophe, and would have af

forded high gratification to all the amateurs | tut
occurring so early, it-threw a gloom tyer every
retch t
With his dislocated stioulder, byt because ery
jovs had been thereby “ curtailed of their fair pro

portion.”” fier Be eA coast ‘
{

Acegants from Edinburgh of the 24th of Janna:
ty. mention, that on the ricat day. the foo niateo
stone of a splendid monument, to the memory of |
Burns, wastobe laid on Carrick -bill, near the |

papergiyes the following destription of the mone
me nS of ats focal situation S— - joey
rrpresthting the three
: Carrch amd © unning-.
» i the centre of which there is to be an. &-
meat forthe accom mxiatiat of tatters “The
budding ridep be he bcsgte

J Base is trizegular,

town of Ayr, in his native coantry, As Edina yh | 5

theinast ee Wah we Petey
IDE Milt) several ig atts
when the trataparcat’
such gp iemstnt 7
ay tengeie. te therein APE 5
id yucal aad fastrareetal pete toe™
Inge ct the agearts eats, givte ots

retggieet 5 eee $i

eet y Be ¥

Pav wore y Hed wer

Ore wele the yore lates

2y aNd 4X
Calamitous Mir iten? MN eas
regret at the, stead bi
ing tod HL Piatt “abd darica ®t
was destroyed (6; Thre va Fee
abeat two miles afane Madore
wippows! to have arigimetes ty
unfortutietedy Oi dil tim et)
Coltias ard a Queatte eid
hw. Such wea the rapeity
Uegpite of every! Ehert, ae
buur after the Ae Gar tee ood,
sengers were CoMipebiial to tf
te save aby part of thet Say
Fifteen hundred telars in toe
the property of captain Kita) wa
The cargo fo the Perec\++accy
dour ss tons, wascw ied be thee g
Crmnag, ant, prime pelle «cima
must have been cf great vale. .

sais .

‘Bruty ly Ot all the ic cad ge
Man character, that of coweky
meat deactves Our carcratys ava
is the nrarhk. of @ sesst Sue had
crimes: Peres pee itt
farm a culty, GG waoets aed ws
that we reaate (Uicacg Sen
{eC Ocre nce 4 in Ml
op from the shop Aeton
“ Norfete, in we tie yomert: Peewee
Aiach nian betgrst} cane Sek
bresk See iY dink sine bad Bo
arc bet wren hit ace My ork wy!
the os Vertale a. eho. }
the Cemirse of wih. ¢
out ef fat po bet art te:
Portutately, the mie a
NC, ela! ja Nid 6h aly % bin
Vea, ciel eM trie #7

1 Fine
=
6

e we

ts

Meas eh oye

ss

«

Wes

“Trertrest ewe are

cartisd AG th jaiy
fiata — | tre
Wellasiorn ef mea a |
Aha ee kets. wy de aa
the Virted Maca KA: ate: F% aot
to Une ati omk ed Se God or
sides iel's toe Oa NEPY Great tease
wetted es ceetedt the a reen
della. . Bat thus Beane §
comee truly Bam ws ny 7 Pe eh
thea tisat cam be otrtawe i ck 6 ads,
od Pate gow @ exer ds che 7 eee
ered. Demise! OO ete! Godard
teats are a6 Gor as tbe Sarge, co
Gal aad <u rade, fae

hat

ete xa

ee |

wes I

* +

we)


Me State’ (C lunibj SC) $-5 [894 S7/

Miscrean? was a rutroad laborer who got tafe a payda
Cw qune wth a purmber of: thw Melos pe get
Vie Wilson Wits accused of heating Wed Stitt dead. AU | pir hes
Were /ejro. bateresting Cwlncience ttt snhher * DMAyEr fi
tols deadly pd os Wes Jie Vitlerrfiine, executed at Atlanta
: I < unre wf Charyes. (rime Toh ‘piace fa 6/89 arid
Mates Corncéaled for Some years uh! palserean Ser 7
a Strumpet who bfabbed. 4 Sas a anare

FAIR, Moses

Moses Fair, black, hanged.at Chester, SC, on
5/4/189 for murder. }

undated 1895 Chicago TRIBUNE containing 189)
exedution list. Sent by Massey.


i
}

'
4
4

\

|

eS

The HManging-*Fanny’s Confession.

We board it aaid that a larger crowd had
not been in town for twenty years, than
4 cked in from all parta of the country on
Friday last, to witnese tiw Execution of Fan-
ny, the woman who administered poison to
Mr. Stowart’s family. So prove are we all to
indulge our morbid curiosity! By 11 o’clock
it was estimated that there wero in the streets
trum four to five Chousend persous of all clas-
ses and conditions. ‘lhe prisuner was takon
w the place of exccutiun, about one wile and
a balf from the jail, about 12 o'clock, whitber
she was followed by this vast concourse of
people. . A few minutes before 11 o'clock she
ascended tbe scatfold with the executioner,
followed by the Rev. Mr. Boyd. After sing-

ing a hymn and offering up a petition to the.

Throne of Grace, the minister descended the
waffold, the criminal bade her friends adieu,

vod was prepared for the final stroke, A min- |

ule more and the criminal stands alone hcol-
ed and halted, gazed upon by the assembly |

which crowded tbe place, on foot, on horse.

back, in wagons, on fences, and in trees, breath.
lusoly awaiting the full of tho trap, Such a
sight we never witnessed befure; we shall
vot see such an ope agam. If a public exe
cation is so, Lormble when tbe crime is so
inonstrous, what must it be when the circum
stances are much more palliating—whben ao
innocent is hung or beheaded? Happy are
we that the Law gives tbe criminal the bene-
fit of doubt.

Tt may be interesting to our readers to say
fiat Fanoy mace a confession before she
went to execution, to this effect; her object
was to kill no une else but Mrs. Stewart, for
the reason that sbe expreased an intentiun to

visit her Summer residence ina few oe |.

and to take Fanuy with ber. Saunders did
nut want Fanny to leave, nor did she want to
yo. The prostitute and tho paramour cun-

‘apired to prevent tueir sepiration. Some
p P Pp

week or two before the poison was adminis-
tered, Saunders furnished her with ar-enic,
which was accidentally destroyed by falling

. from ber pocket into the fire. He brought

ber more on the night before the fatal morn-
ing of the 26th May ult, and she resolved to
pvison ber wistress tbe pext morning by put-
ting it in ber cbocolate, abe being the only
one of the tamily who drank this beverage.
Having mixed (be puison with the single ae
por of water with which she intended mak-
ing the choouolate, she was called out of the
kitcben. Mrs. Wilkes, tho housekeeper, en-
tered in ber abyenve and, a3 sie supposed,
put the dipper into the bucket wituout throw.

_ Ingout the water in it, and tovk a drink,

tbus accounting fur the greater virulence of
ber case than the others. Fanoy, upon ber
return to the kitchen, saw the dipper in the
bucket, and supposed the puisun had been
thrown away, aod proceeded io ber prepara-
tions for breakfant, taking all the water she
used fruin this bucketful, which had been im-

_preguated frum the dipper. This is Ler cun-

lesst»n—as was told to us by one who hoard
ber make it.—Newberry Conservatist, 20th
inst.

ae

|


328 HISTORIC CAMDEN.

“Ordered that the following Rates be established in
the County of Kershaw for the ensuing year for Tavern
Keepers:

- “Jamaica Rum, when drunk in Tavern per Quart 4/,
pr pint 2/, % pint 1/2, p. Gill 7d.

“Grog of ditto pr Quart 1/, 1 pint 7d.

“Punch of Ditto 1/8 pr Quart, with Loaf Sugar and
Fresh fruit; 1 pint Do 1/

“French Brandy and Gin at the Same Rates as above

“Good West India Rum pr Quart 3/ per pint 1/6, %
pint 9d.

“Grog of Do. pr Quart 1/, pint 6d.

“Northward Rum pr Quart 2/. pr pint 1/. % pint 7d.

“Grog of Do. p. Quart 7d. p. pint 4d.

“Best Madeira Wine pr Bottle 6/, p. pint 3/

“Good Port Do.

“Favall & Clarett pr Bottle 2/4

“Lisbon & Teneriffe 4/ p Bottle

“Good London Bottle Porter 2/4.

“Bristol Cyder 2/ p. Bottle. Country Do. 9d.

“Peach Brandy the same as West Ind. Rum

“Whiskey the same as Northward Rum

“For Tody instead of Grog made of Loaf Sugar add
3d. p Quart & 2d. pr pint

“Wine and Sagaree add 7d. more to Bottle

“Breackfast or Supper with Tea or Coffee 1/

“Dinner with Grog or Other Liquors 1/6, without 1/.

“Horse Keeping 24 Hours with Plenty of Good Hay
or Blades & 6 Quarts of Corn or Oats 2/ the first Night,
1/6 Every 24 Hours after. Corn or Oats Extra p.
Quart 2d.

“Lodging pr Night 6d. on Good Feather bed, with
Linen, Mattrass 4d.

“All Entertainment bespoke where a bill of fare is
Given in the Price to be agreed by the parties.”

a a aah oR ae Reap ies fc EE

MERI ATR Rowe

bia

MINTON’S MILL. 329

We may imagine with what gusto that judicial trio
concerted this unique schedule of toddies and grogs, for
the construction of which they were doubtless eminently
qualified, and with what zest and diligence they tested
its merits. The powers and privileges of a moderm Dis-
pensary “Board of Control” pale into insignificance
before theirs.

Down stream from David Minton, a mile or two, re-
sided Lovick* Rochell, on the fertile lands of Lynches
Creek, of which he owned a wide extent. In their day
they had doubtless been chums at Danzy’s tavern; but .
David was prudent, and Lovick reckless. A matter of .
money caused a deadly breach between them.

Lovick had purchased several slaves from Jesse Min-
ton, David’s father, giving a mortgage of the slaves to
secure the price. Upon the death of Jesse a difference
arose between David and Lovick over this mortgage,
the one demanding payment or tle slaves, the other
claiming it had been paid. In the midst of the conten-
tion the slaves disappeared from Lovick’s possession.
Perhaps, not knowing to whom they belonged, ere: may
have run away.

Lovick doubtless believed that David was privy to
their departure, and, in the April Court, A. D. 1800, at
Camden, indicted David Minton upon the charge “that
the said David on Dec. 8th 1799, at the house of the said
Lovick, three negro slaves, Nat, Cele, and Joe, proper
goods and chattels of the said Lovick, did feloniously
aid and assist in running away and departing from the
service of the said Lovick.”’ Among the papers in the
case is an affidavit of Joshua and Ruth Lisenbe,j stating
that they had heard Jesse Minton, in March, 1796, ac-
knowledge to Lodowick Rochell, at his house, that the

*Contraction for Lodowick.
¢Lizenby, now Bethune, derived its name from this old family.

326 HIsToRIC CAMDEN.

the Quaker Cemetery, without a stone to mark his hon-
ored grave.

No worthier comment may be passed upon him than
that of Judge O’Neall:

“In every situation and office of life he did his duty.
What more can or ought to be said, unless it be to say
that he feared God and kept his commandments, which
is declared in the inspired volume to be ‘the whole duty
of man.’ ”

The mother of Judge Brevard’s wife was Mary, a
daughter of Capt. John Cantey. Thus the descendants
of Judge Brevard trace also to Cantey ancestry.

Judge Brevard left four children: Dr. Alfred Brevard.
who married Harriet Chesnut McRae, daughter of Dun-
can McRae, leaving at his death, in 1836, two children,
Alfred and Harriet, both now living in this community;
Edward and Eugene, who died childless, and a daughter,
Sarah Aurora, who married Benjamin T. Elmore.

A brother of Judge Brevard, Ephraim, was the author
of the famous Mecklenburg Declaration of Independence.
Another, Alexander, after serving with distinction in
the Northern campaigns under Washington, was acting
as quartermaster under General Gates at the disastrous
battle of Camden. Others of his brethren showed great
activity and talent, and no family of the South or North
performed more distinguished or patriotic service in the
Revolution.

CHAPTER XVIII.
MINTON’S MILL.

About twenty-five miles northeast of Camden, in a
valley of that sandy region, the public road leading to
Cheraw crosses a clear, brisk stream,* near the site of
an old mill, traces of which are still visible. The sur-
roundings are waste and desolate. The old field on the .
nearby hill has long been abandoned to broom-sedge, -
fennel and life-everlasting, badges of poverty and deser-
tion. Here a century ago was David Minton’s mill and
home.

David, whose father, Jesse Minton, had lived here
before him, was a millwright, and by diligence had 2c-
quired some means out of his trade and these poor lands.
Life in those parts and in those days must have been
decidedly rough and hardy. Churches and schools were
scarce, but the country tavern of the roadside, where the
traveler could find board and grog and the neighbors
grog without board, was not so rare. This old institu-
tion, scene of many an ancient brawl, has long been a
thing of the past. We may well suppose it to have been
a source of incorrigible evil to the forefathers. It may
be sufficiently curious to note some of their regulations
on the subject.

On the first pages of the record book of the County
Court, at its opening in Camden, February’ 28, 1791,
Adam F. Brisband,t Samuel Boykin and John Kershaw
presiding, the following entry catches the eye:

*“Jumping Gully” Creek, not to be confused with the stream of that

name in West Wateree.
This was the way he repeatedly signed his surname, which later mem-

bers of the family converted into Brisbane.

330 HIsTorRIc CAMDEN.

MINTON’S MILL. 331

slaves had been paid for. However, the jury, Duncan
McRae foreman, found “no bill,” and threw out the in-
dictment.

This failure caused Lovick the sharpest chagrin, and
whetted his animosity. Inthe heart of Lovick’s planta-
tion lay a tract of 300 acres, partly on each side of
Lynches Creek, which divides Kershaw and Chesterfield
Counties. This land he had purchased at a judgment
sale against James Holmes. In 1802, a year or so after
the indictment against David, suit is brought against
Lovick by James Holmes, son and heir of the former
owner, to recover this land, on the ground that it had
been illegally sold by the Coroner of Chesterfield
County. Holmes, who won the case, was represented by
Abram Blanding and Joseph Brevard of Camden, and
Rochell by Falconer, a notable attorney of Chesterfield.
When the suit was brought young Holmes was living
in Georgia, but David Minton was his agent on the spot,
and was viewed by Rochell, with feelings other than
complacent, as the instigator and real author of this, his
second discomfiture.

The turning question of fact in the case had been as to
young Holmes’s age. If he was over twenty-six, Rochell,
by having held the land in possession for five years after
his majority, under the law of that day, had acquired
title. After the verdict against him Rochell brought a
suit in equity to prevent its enforcement, alleging that
in the former trial David Minton, agent of Holmes, or
Blanding, his attorney, had fraudulently suppressed the
family Bible and other testimony which would have
proven that Holmes was over twenty-six. This injunc-
tion suit, or some phase of it, was pending in Charles-
ton Court, where in January, 1805, all parties were in
attendance. The termination seems to have been in
favor of Rochell, but this in no wise ended the retalia-

on

a esigsinganishin SH Wide aioe cua oe LS ee

tion between him and Minton, which developed into a
veritable cause celebre. Its outlines have floated as a
picturesque local tradition, which we are enabled to re
count with some authentic detail by reference to the old
record, which seems to have been undisturbed since tied
in its original tape. Thus the sequel may be told in the
words of the witnesses.

Thomas Minton states that his brother David had a
law suit with Rochell depending in Charleston January
last (1805) ; that he was with his brother; that Rochell
there abused said David and seemed to bear great malice .
towards him, and signified by his language that he
wished him out of the way.

Charles Evans tells that on the 26th of February last
at Danzy’s tavern, in Kershaw District, he was present
when Lovick Rochell and David Minton were also pres-
ent. That said Rochell, without reasonable cause or
provocation, used very abusive language towards Min-
ton, spit in his face, drew his knife and attempted to
stab said Minton, but was prevented by the company
present.

For this assault Minton entered an indictment against
Rochell, for which he was arrested. This added fresh
fuel to Rochell’s frenzy. He swaggered the more, and
in his drinking bouts tried the harder to drive Mintun to
a personal encounter. Drink had raised his hatred to
mania.

Edward C. DeBruhl declared that on April 9th he
slept in Camden at Caston’s tavern with Lovick Rochell.
In the night he talked very much, being intoxicated, and
seemed to be addressing one Kemp, saying: “G— d—
him, I’ll kill him. He shall not enjoy any of my prop-
erty,” and deponent believes he meant David Minton.

Ambrose Bryant states that on Monday, April 8th, he

382 Historic CAMDEN.

met with Lovick Rochell in Camden, who took him aside
and asked him whether he could not prove that David
Minton had stolen a horse from him, the said Rochell.
- Bryant denied that he could prove any such thing, and
advised Rochell to make up his dispute with Minton, or
he would be a ruined man. Whereupon Rochell de-
clared that before Minton should have any of his prop-
erty, one of them should lose their lives.

Then comes another prosecution in Court, in the files
of which is to be found entry of the following writ:

David Minton
Vs. Slander. April, 1805.
Lovick Rochell

This wrought the morbid Rochell to the last degree
of desperation. His bluster changed to calm. The rod
of open rage turned into the venomous serpent.

On Saturday, April 13, 1805, Rochell was journeying
homewards from Camden. With him rode Isaiah Jen-
kins, Jesse Fley, Joel Bliss and James Perkins, the lat-
ter his nephew. They no doubt stopped more than once
at the wayside taverns. The event shows that mischief
was brewing in that company. On reaching home that
evening Rochell slept, so his daughter states, a mark of
hardihood beyond a Macbeth.

That day David Minton had been busy rebuilding the
mill above mentioned, known by his name. At evening
he sat with his family at the fireside of their log house,
taking tea, the beverage which cheers and civilizes the
world. David was just raising the cup to his lips when
a deadly volley was discharged through the very chim-
ney nook upon this quiet group. David fell sprawling,
and feet were heard shuffling on the outside and scurry-
ing away.

The report of the gun, which was heavily charged,

es

1.

ee er

ONANISM TNA

MINTON’S MILL. 333

traveled down the valley until it reached the intent ears
of Lovick Rochell, who had for some time risen from his
nap, and sat listening on his porch. He rose and went
into the house, exclaiming, “the work is done.” Young
Webb, a schoolboy staying in the house, heard the words
and had also heard the report of the gun.

The next morning David died. The inquest fixed
suspicion upon Lovick Rochell, Isaiah Jenkins, Jesse
Fley and James Perkins. Jenkins could not be found.
He had immediately disappeared and was never after |
heard of—or rather not until lately, as explained here- .
after. There is a tradition that Rochell defied arrest.
and had to be taken by a strong posse, but no record
confirms this. Fley was taken. Judge Brevard re-
fused them bail, but released Perkins. 7

For some reason the prosecution was long delayed,
wisely it turned out, for in time suspicion ripened into
proof. After a term or two, Rochell was released on
bail. Fley broke jail in 1806. In 1807 he was recap-
tured by Fletcher of Flat Rock, leader of a wagon party
on its way to Charleston, thereby earning three hundred
dollars reward.

Four years had passed, but in that time, Blanding,
acting State’s attorney, had completed the chain of evi-
dence. On Thursday, April 20, 1809, the prisoners,
Rochell and Fley, were brought to trial, defended by
Messrs. Witherspoon and Richardson. The stout old
Falconer, Rochell’s former attorney, had died in 1805,
in consequence of a forced trip from Cheraw to Camden
and back, in one day, sixty miles each way. He had
hurried over at Rochell’s urgent call on his arrest for
Minton’s murder. Judge William Smith (afterwards
Senator from South Carolina) presided at the trial, and
as Judge O’Neall relates, reported all the evidence in the
case minutely, from memory, to the appeal Court.

176 CHOTANKERS

Ephraim Lyles signaled the first bid for the property title. Immediately, John
Kennedy took him by the arm and, leading him out of hearing range of the
other men, whispered if Lyles would cease bidding and allow him to buy the
land, he would take care of Lyles’ claim against Gilson. With this offer from
Kennedy, Lyles withdrew; as a result John Kennedy’s subsequent bid of $561
took the property. Selling the island for $2,000, Kennedy would quadruple his
investment in just a few years.

In spring, 1817, making use of his position as Ordinary of Chester County,
Ephraim Lyles learned that the authorities would move soon to confiscate the
remainder of Gilson’s South Carolina holdings to satisfy the bond he had
posted with John Kennedy and Joseph Whann. Kennedy had not kept his
promise to “make you safe” and not wishing to lose the amount of Gilson’s
note, Lyles filed suit in the Court of Common Pleas against Gilson Foote.*75

At the Spring Term, 1818, the Common Pleas Court took its predicted
action and in ‘The State vs. Gilson Foote, John Kennedy and Joseph Whann”,
the Judge ordered ‘that an execution do issue against the goods, chattels and
real estate of the said Gilson Foote, for the amount of his recognizance.*”©”’ The
order authorized the Sheriff to confiscate the non-appropriated property and
auction it to the highest bidder. However, the attorney for the defendants
claimed that the recognizance bond was invalid because it purported to be a
sealed instrumentand yet it didn’t bear the seals of all who had signed it. Justice
Cheves of the Appeals Court reversed the ruling by the Chester Court issued
in favor of the defendents, and the Sheriff moved to take the property as
directed.4??

While it is impossible to be sure of the exact timing, it is known that Gilson
Foote returned to Chester County, probably before appeal decision, to pick
up his son, to gather belongings he had left at Mountain Island which the
Crenshaw’s could have moved to their place, and say a final goodbye to his
brothers and sisters, for he was now convinced that he could never return.to
Chester County under normal circumstances. He found that his problems
with the law had created difficulties for his sister, Mary, and her husband
because of their closeness to him. The Harts told him of their plans to move
west to Conecuh County, Alabama as soon as necessary arrangements could
be made.

By 1821, far from the embarrassment caused by his brother-in-law’s
confrontation with the state and scandalous escapades with the young female
neighbor, Benjamin Hart had a brush with destiny as he became

475Lyles declared that ‘Foote is without the limits of this state."” Court of Common
Pleas Minute Book, Spring Term, 1817, Chester County, South Carolina, pp. 97, 99,
and 106. At the Fall Term of Court the jury awarded Lyles a judgment of $300.00, p.
LAL;

476 Ibid.

47Mills’ Reports of Judicial Decisions in the Constitutional Court of South Carolina in
1817, 1818, Volume II (Charleston: W. Riley, 1837), p. 123.

ESCAPE TO NEW ORLEANS 177

one of the charter board members of the Sparta Academy, which, in
conjunction with Alexander Travis and others, he had worked hard to found
for his and his neighbors’ school-age children.*78 At Sparta Academy, William
Barrett Travis, the hero of the Alamo, would meet and marry Rosanna Cato,
an event which could have been forever of pride to Benjamin and Mary, but for
good reason was not.*?

Rosanna had been Travis’ student when they met at the Academy, fell in
love, and married October 26, 1828. The couple’s happiness would fade
during the next two years while he taught at Claiborne and Monroeville.
Finally, she would take a lover; some authors say he was killed by Travis. She
would be granted a divorce after he abandoned her to go awakening Texas.
Texas declared independence from Mexico March 2, 1836, and four days later
the Alamo fell, wiping out the garrison commanded by Travis. Born in
Edgefield County, South Carolina, 27 years earlier, William Barrett Travis
died fighting, along side Davy Crockett and Jim Bowie, the 5,000 Mexicans
who stormed the fort.

At the time Travis was fighting and dying at the Alamo, Robert Hancock
Foote,*® the son of John Williams Foote and therefore a great-nephew of Mary
Foote Hart, was joining the army of the Republic of Texas himself. He had arrived
in Texas in 1830 from Wilcox County, Alabama, where his parents

478By October, 1819, Benjamin Hart had made arrangements to leave Fairfield and
Chester Counties, South Carolina. On that date he sold his mill on Rocky Creek to
John Pickett. Deed Book T, Chester County, South Carolina, p. 163. About the same
time he took care of obligations on lots 36, 42, and 44 in the village of Rocky Mount,
when he was released by Vincient A. Edwards. A witness of that release was Rigdon
Perry, who in 1830 was a neighbor of Hezekiah Massey in Lancaster County. Massey’s
son, John M., would later marry Gilson Foote’s daughter. By 1840 Rigdon Perry, Sr.,
was living in Tishomingo County, Mississippi adjacent to Flemming McCoy. The
release to Benjamin Hart appears in Deed Book CC, Fairfield County, South Carolina, p.
101. On January 31, 1823, Benjamin Hart gave a power of attorney to his son, James.
At the time both were residing in Sparta, Conecuh County, Alabama. The power of
attorney is recorded in Deed Book W, Chester County, South Carolina, p. 416.

479*An Act to Establish an Academy in the Town of Sparta, and for Other
Purposes,” Acts Passed at Third Annual Session of the General Assembly of the State of
Alabama (Cahawba, Alabama: William B. Allen and Company, 1822), p. 84.

480See page 169 for more information on this branch of the family. San Augustine,
Texas marriage records show that of the children of John Williams Foote and Elizabeth
Hancock, Lucy Ann married first John T. Bridges, October 28, 1852 and later on
February 9, 1879, Roddy Anthony; Amanda married John Jones, December 16, 1850,
and moved with her husband to McLennan County, where her brother Julius was living
in 1860; and James M. Foote married three times--to Suzanna Smith, January 24, 1854,
Mrs. Elizabeth E. Allenton, July 20, 1867, and finally Sarah A. Rayburn, December 7,
1884. The two oldest daughters of John W. Foote--Caroline who married William
Lovette Watson in 1834 and Artella Kincheloe Foote who married Henry Watson in
1837--stayed in Alabama.


174 - CHOTANKERS

of his involvement, how could a court be expected to decide otherwise? As the
Fall term, 1816 convened, ‘The State versus Gilson Foote and Samuel
Monahan” came up on the docket. There must have been a number of Gilson’s
friends and family in the Courtroom to hear the testimony and the jury’s
verdict. Among those in the Courtroom could have been Monahan’s
neighbor, Moses Grisham.‘”° Others that would be expected to show up in
Chesterville were Micajah and Matthias Crenshaw, Thomas Mackey,
Benjamin Morris, Benjamin Hart, and Gilson Foote’s security on the bond,
Joseph Whann.

Under the foremanship of Hazel Hartwick, the jury heard primary
testimony from Thomas Reed of Fishing Creek and from Austin Peay,
operator of a ferry across the Catawba River in Fairfield County, south of
Rocky Mount, used to transport the contraband.

Doubtless the most sensational witness was the young 16 year old daughter
of Robert Robertson of Rocky Mount. Her father drown 8 years earlier as he
waded from the ‘Round Rock” at the falls of the Catawba where he had been
dipping for fish. He had been drawn intoa swirl all the residents spoke of as the
“suck hold.” Robert Robertson’s holdings had been quite extensive, including
800 acres just to the northwest of Mountain Island on the east side of Fishing
Creek, touching the land of John Findley and property that had been granted
Thomas and Katherine Steel.47!

After buying Mountain Island, Gilson Foote befriended his blossomy 15
year old neighbor, Sarah, but he did not remain content with being just a father
figure to this girl, 35 years his junior. However, public revelation of their
actual association would not come for sometime yet.

‘The 1820 Census for Chester County lists William Murphey, Moses Grisham,
and Samuel Monahan in that order on page 52. The connection between the Grishams
and the Footes in Chester County is not clear. In 1800, the census lists Jeremiah
Grisham adjacent to Ephraim Lyles, Gilson Foote’s brother-in-law; Franky Grisham,
one door from Gilson’s father; and Moses Grisham, Sr., adjacent to Thomas Mitchell
who in 1807 sold his Brushy Fork property to William Foote. Deed Book U, Chester
County, South Carolina, p. 90. An Andrew Foster lived in Lancaster County, South
Carolina in 1800 but had left the area by 1810, the year Lucy Foster married Moses
Grisham in Tennessee. William Grisham, the son of Moses Grisham and Lucy Foster,
married Charlotte Foote, the daughter of Gilson Foote, Jr., in Tishomingo County,
Mississippi. In an August 1975 interview, Robert Grisham of Iuka, Mississippi, 88
years old at the time, told this author that the Grishams and Footes came into West
Tennessee from the same section of Carolinas. At the time of this writing, Mrs. Betty
Flurry, Ripley, Mississippi, a great-granddaughter of William Grisham and Charlotte
Foote, working on a Grisham Genealogy, has uncovered no connections between the
Grishams of Giles County, Tennessee, and Chester County, South Carolina.

471..M. Ford, Memories, Traditions and History of Rocky Mount and Vicinity
(Unpublished manuscript in the Chester Library, c1890). p. 14. About 1816 his land
under a writ of partition sold to Charles Thorn. Deed Book R, Chester County, South

Carolina, p. 78.

ESCAPE TO NEW ORLEANS 175

Rounding out the testimony were Rachel Allen, Phil Dye, Elias Love,
William Brown and Thomas Mabin. But it really didn’t matter what the
witnesses would say in Gilson's behalf or in condemning his connection with
the disappearance of the Charleston wagon. That his absence was the most
damaging testimony became readily clear when the jury filed back into the
Courtroom and Foreman Hartwick read the verdict. ‘We find Foote guilty,
Monahan not-guilty.’*472

Gilson remained outside the state and outside the grasp of the Sheriff of
Chester County, although wanted posters for his arrest were doubtless widely
circulated to neighboring counties, and as far as Charleston, South Carolina,
and Wilmington, North Carolina. But, in his absence, he could not prevent the
Courts from taking his property.473

There were Court-ordered collections of old outstanding debts against
Gilson, and the Court directed the Sheriff to put Mountain Island up for sale at
auction February 7, 1817, to satisfy these. Because the judgments preceded the
deed mailed soon after running away, from Gilson Foote to John Kennedy, this
deed had no standing with the Court. As the Sheriff stood on the Courthouse
steps and began the auction, John Kennedy interrupted him, claiming the land
was his, waving the deed from Foote and shouting, "I forbid the sale.’474 Being
familiar with the circumstances, the Sheriff disregarded Kennedy and again
requested bids from the crowd.

*?Other members of the jury were Stephen Crane, Hugh Allen, William Ferguson,
William Acken, James Miller, Hugh Gaston, John Conn, Peter Wylie, Samuel Telford
and John Mayben. Court of General Sessions Minute Book, Fall Term, 1816, Chester
County, South Carolina.

473 The 1800 Census for Chester County, lists on page 90: Asa Darby, Wm.
Beckham, Robert Robeson, James McAdory, in that order. Asa’s son married Leonora
Foote. Wm. Beckham has been shown to be associated with Gilson Foote. As for James
McAdory the exact relationship is not known. However, Mrs. Maggie Sample,
Clarksdale, Mississippi wrote in 1932, ‘My old aunt told me that one of my
grandmothers was a Foote, and in information from Mr. Prude (Mr. J.O. Prude of
Tuscaloosa, Alabama) he records that James McAdory married Mary Foote so I believe
this is correct.” Kathleen Paul Jones and Pauline Jones Gandrud, Alabama Records:
Madison County, Volume IV (New Market, Alabama: Published by the authors, 1932),
p. 100. When James McAdory moved to Pendleton District in early 1800’s, Gilson
Foote witnessed deed for Chester County land. Around 1815, having resettled in
Madison County, Alabama, James McAdory died. For estate settlement see Dorothy S.
Johnson, Madison County, Alabama Deed Books...1810-1819 (Territorial), (Huntsville:
Johnson Historical Publications, 1976), p. 39. Since Dr. Waddy Tait aided in
McAdory estate settlement, and Waddy Tate entered into a bond with George Foote
and others on estate of Richard Simpson much earlier in Caswell County, N.C., Mary
McAdory may be daughter of Richard Simpson and Mary Kincheloe Simpson.
Research on Mary McAdory continues by Mrs. J.L. Carmichael, 2916 Thornhill Road,
Birmingham, Alabama 35213. :

Court of Equity Minutes.


178 CHOTANKERS

lived. He had received a Spanish grant for ‘4 league of land” in Limestone
County, Texas in 1835, but made his home after Texas independence in San
Augustine County, Texas, where he served as Sheriff and Superior Judge until
he died in May, 1839.

Following his death his father took wife Elizabeth and their five youngest
children and moved to San Augustine to claim the inheritance which Robert
H., who had never married, left to his father. 48!

It was at this 1819 meeting with Benjamin and Mary, that Gilson, knowing
that she had now reached 18, must have asked about the whereabouts of Sarah
Robertson. If the question was asked, surely Benjamin would have then
detailed her testimony at the trial in Gilson’s behalf. Even though it would be
very risky, Gilson had to see her, to “thank her”, he would have said.

What happened during their meeting is speculation. Whether he suggested
she go with him to take care of Gilson, Jr., only five years her junior, or
whether Gilson proposed, Promising marriage as soon as circumstances
allowed, no one knows. But the three left together, probably under to cover of
darkness, taking the best road toward Georgia to pick up the servant family
whom Gilson had leased to a Georgia planter years before. From there they
probably headed south toward Savannah, for Gilson had selected as their final
destination, New Orleans, 482

Frederick Kimball lived in nearby Natchez where he had fled after killing his
brother-in-law on Mountain Island. Natchez stood a the Southern terminus of
the Natchez Trace, conveniently connecting all of the lower Mississippi with
North Alabama and Middle Tennessee. Convicts, marauders, and social
outcasts seemed to use the Trace as often as legitimate travelers. It provided
another escape for Gilson, if pressed by authorities in Louisiana, should the
Gulf steamers or the Mississippi packets appear too risky. Perhaps, he should
take every precaution.

Gilson had chosen Louisiana not only for its distance and remoteness
although very easy and economical to reach by water, but because he Cie
several former South Carolina citizens who had settled there. In addition to
Robert Gill, originally from Fishing Creek, rising to prominence in the state to
later become Attorney General, there were others in the region with
associations with Gilson. Thomas Holder Wade, son of George Wade, the

original operator of what became McDonald’s Ferry across the Catawba just

481For the grant see Virginia H. Taylor, Index to Spanish and Mexican Land Grants in
Texas (Austin: Lone Star Press, 1974), p. 185. For his will and 14 related documents
see File Box F, San Augustine County Courthouse, San Augustine, Texas.

‘A review of the Savannah newspapers for the 1817 to 1820 period does not yield
any evidence of direct service from Savannah to New Orleans. More likely, they would
have had to take one of the frequent smaller brigs to Havanna and make tocmectinia
with a New York to New Orleans or Baltimore to New Orleans vessel. It may have been
that they boarded the famous steamship “Robert Fulton” which ploughed between
New Orleans and New York.

ESCAPE TO NEW ORLEANS 179

north of Mountain Island, had moved to Feliciana Parish, Louisiana. Thomas
Wade served as Sheriff of Lancaster County periodically from 1801 to 1814:
Gilson liked to cultivate the friendship of men of public authority. He would
have been first introduced to Wade by his wife’s Uncle Micajah Crenshaw
who had served as Wade’s overseer for a few years before 1810.483 And
another Feliciana Parish resident was Valentine Lyles, the brother of Gilson’s
brother-in-law Ephraim.*§4

A hunted man, Gilson could not risk using his real name for fear of
discovery; therefore, he and Sarah chose to use the surname from her family,
Flemming, on both the trip across the Gulf and at least part of the time while
residing in New Orleans.*85

Il

Departing Savannah, the trip to New Orleans was exceedingly swift by the
standards of the day, requiring only two weeks or less to journey south past the
tip of Florida to Cuba, return north into the Gulf near Key West, pass Ship
Island off the Lighthouse at Biloxi, and finally turn into the wide mouth of the
Mississippi up the river for the last 100 miles. At almost the very time Gilson
Foote, Sarah and young Gilson were making their trip under the alias of

483According to Doughtie, printed information on Thomas H. Wade, Senior
indicates ‘he moved from Lancaster, South Carolina to St. Mary’s Parish, Louisiana
and is buried there” (p. 383). However, she also reports that he began to acquire land in
Feliciana Parish, Louisiana in 1819. Gilson’s brother Henry, of course settled in St.
Mary’s Parish and investigation would probably reveal additional connections there
between Wade and the brothers Foote. Beatrice Mackey Doughtie, McDonald, Kimball,
Wade and Leak: Court, Bible, Church, Cemetery, Family Records (Atlanta: privately
published by the author, 1971). :

*84Court of Equity Minutes (1823), Fairfield County, South Carolina.

*85The author started his search for the Flemming alias after it was discovered that in
1840, Sarah. resided adjacent to Trussell Flemming in Lancaster County, South
Carolina and that she had named her oldest daughter, Lucinda, apparently after
Lucinda Flemming of both Chester and Lancaster Counties. The connections with the
Flemmings would continue over another generation for when William Foote, the
grandson of Gilson Foote, Sr., bought Tishomingo County, Mississippi land after 1850
in Section 28, Township 2, Range 10, he purchased it from Elizabeth Powers.
According to the 1850 census, she resided in the home of Samuel McCoy, the son of
Flemming McCoy, who had moved to Tishomingo County about 1838. In 1830,
Flemming McCoy had been a resident of Lawrence County, Tennessee. No doubt, he is
the son of Henry McCoy (or McKay) who is listed in the 1790 Chester County Census
adjacent to the Widow Flemming. In May 1826, Henry McCoy of Giles County,
Tennessee sold 112 acres on the Bullskin Branch of Rocky Creek to James McGaw,
according to the deed, “laid out to McCoy Nov. 17th, 1791.’ See Deed Book W,
Chester County, South Carolina, p. 156. This deed is signed ‘Henry McKay”.


180 CHOTANKERS

Flemming to New Orleans, Benjamin Latrobe with the same destination was
recording in his diary his impressions of the journey. He wrote as his ship
entered Mississippi:
Jan’y oth, 1819. At daylight the wind, tho’ very light, was favorable. The wet
fog continued. We soon got under way & proceeded up the river, first thro’
the wide bay from which the several passes to the SE, S, & SW find their way
into the Gulph of Mexico, then thro’ a margin of reeds on both sides of the
~ river about a mile wide. Presently large trees present themselves thinly
scattered on the West bank upon a narrow margin of more elevated ground.
Higher up, the land on both sides rises to the highth of 3 or 4 feet above the
water, & is covered with a growth of willows & other woods, none of it very
large on both sides.486
Since all the planters on the lower part of the river were cultivators of rice
another 50 miles passed before the travelers encountered the large siighir
plantations. William M. Johnson, a pilot on the river 10 to 15 years earlier
owned the first one to be spotted as the ship headed upstream. He had built :
house unique in the area, a two story brick featuring a large portico facing the
river, framed by large orange trees “forming a vista from the road to the
door.’’# All the other houses, that Latrobe--or Gilson and his companions--
would see were low one story houses with a porch all around, said to be the
French style, or porched on the front and back in the American manner. Near
the main houses, the larger plantation owners had constructed streets of
dwelling for the servants with ‘many of them looking commondious &
comfortable, with a belfry in the center to call them to work.’’488
Under fait wind, the ships usually reached the English turn in about two
days after entering the mouth of the Mississippi. Shaped like a backward “S”
the English turn provided great difficulty for the ship traffic because the
leading wind, necessary to reach that point, would not in the rapid current
carry them through the major reversal of direction necessary before the ship
turned back again to the northwest. On Latrobe’s journey, four ships and four
brigs already lay at the turn as his ship arrived. Common with all vessels, the
men left the boat to haul the vessel up to the bottom of the bend by pulling
along the bank with ropes, known as tracking. Latrobe penned, ‘All our
passengers & negroes here volunteered to track, & about 1 in the morning we
were able to set sail again.’’489
The ships usually arrived in a fog, casting anchor opposite the New Orleans
open air market on the levee. Passengers arriving for the first time were struck

Benjamin H.B. Latrobe, Impressions Respecting New Orleans: Diary &
: x : ry & Sketches,
1818-1820 (New York: Columbia University Press, 1951), p. 15. Bi

$87 bid.

*sIbid., p. 17.

*°Ibid., p. 18.

ESCAPE TO NEW ORLEANS 181

by the babble of voices emanating from the shore. When the fog lifted, the
three South Carolina travelers could have landed at a flight of wooden steps
insecurely attached to the bank immediately in front of the public square.
Climbing to the top, the two Gilsons and Sarah would have found their way
along the top of a 50 feet wide levee extending all along the front of the city.
More than 300 feet of market ran up and down the levee, which itself sloped
150 or 200 feet to the footpath in front of the houses. The sight which greeted
the Footes and all other passengers arriving this way was vividly described by
Latrobe:

Along the levee, as far as the eye could reach to the West & to the market
house to East were ranged two rows of Market people, some having stalls or
tables with a tilt or awning of canvass, but the majority having their wares
lying on the ground, perhaps on a piece of canvass; or a parcel of Palmetto
leaves. The articles to be sold were not more various than the sellers. White
men and women, & of hues of brown, & of all classes of faces, from round
Yankees, to grisly & lean Spaniards, black negroes & negresses, filthy Indians
half naked, mulattoes, curly & straight-haired, quarteroons of all shades, long
haired & frizzled, the women dressed in the most flaring yellow & scarlet
gowns, the men capped & hatted. Their wares consisted of as many kinds as
their faces, Innumerable wild ducks, oysters, poultry of all kinds, fish,
bananas, piles of oranges, sugar cane, sweet & Irish potatoes, corn in the Ear
& husked, apples, carrots & all sorts of other roots, eggs, trinkets, tin ware,
dry goods, in fact more & odder things to be sold in that manner & place,
than I can enumerate.4?

It was not unusual for as many as 500 settlers and buyers to be milling about
the market at any one time shouting their wares and dickering over prices.
But, as the visitors from South Carolina would soon discover, the sights of
the city were not confined to the market. For New Orleans was home to nearly
30,000 people; of the 13,500 Blacks nearly half were free. The American
population in the city had grown rapidly since the purchase of Louisiana from
France in 1804. Construction was vigorous, especially on the underdeveloped
northern edge of the city. By the time of Gilson’s arrival, there were nearly 30
public buildings, churches, a library of 6,000 volumes and academies. Fifteen
frame buildings remained in use for some public functions. To 14 year old
Gilson and 19 year old Sarah, neither of whom had ever seen a town larger than
400 inhabitants, the range of shops, merchants and services seemed immense.
The New Orleans City Directory listed the commercial and public activities:
...Many Physicians, and counsellors at Law: 260 Mercantile
establishments: wholesale grocery and dry goods merchants, carrying on an
extensive trade in produce and merchandise: 7 auctioneers, who do great
business: 102 retailing dry goods stores: 27 millinery and fancy stores, and a
number of small shops of various kinds: a number of billiard tables: ...350
taverns & groceries that sell by the small, and 78 groceries that sell by larger

measure, besides a number of porter and oyster houses &c.: 1 public bath
house: 2 fumigatory bath houses: 32 blacksmiths: 5 brass founders: 1 bell

‘MIbid., p. 22.


HISTORIC CAMDE

PART ONE

COLONIAL AND REVOLUTIONARY |

BY

THOMAS J. KIRKLAND

AND

ROBERT M. KENNEDY
CAMDEN, S. C. .

Columbia, S. C.
THE STATE COMPANY
1905

Second Reprinting 1964
KERSHAW COUNTY HISTORICAL SOCIETY
Camden, S. C.

*6ogt ‘Arne y eunp *Og Suepweyn peduey ‘seqTUuM fyoTMopnT ‘@TTaHOON pue fessor Sea

£

36 — REAL DETECTIVE TALES ann MYSTERY STORIES

in the servants’ quarters talk about robbing guests.
They repacked hastily, ordered the horses harnessed at
once, and managed to leave.

At that period a chain of inns or roadhouses stretched
out from Charleston along the highway which country
gentlemen were accustomed to travel. They were:

Four-Mile House, Five-Mile House, Six-Mile House, .

Ten-Mile House. Of these, the Four-Mile House—
which stands, remodeled, just that distance from
Charleston’s Courthouse—is the only survivor. There
is poetic justice in its survival, for it seems the only one
of the chain which did not fall into disrepute. Five-
Mile shared the fate of Six-Mile in general indignation
at the discovery of the murder gang, which gives us
reason to believe that some of the blackguards must
have frequented it. That they plied their trade as far
up the road as Ten-Mile is proved by the following from
The City Gazette of February 18, 1819:

DARING HIGHWAY ROBBERY! A Mr. James
Addison, on his way from town to the country, was
knocked down on Tuesday evening about dusk near the
Ten-Mile House by a white man mounted on a white
horse, and robbed of ten dollars, being all the money he
had about him.

We can never know how many stories of this kind,
how much evidence, Colonel Cleary had. when he ar-
rested the Fishers; for the press of 1820—in sharp con-
trast to the press of tod4y—was so grudging in reports
of the affair that South Carolina was bitterly attacked

by the New York National Advocate “because accoynts _

of robbery and testimony at trial were not laid before the
people.” 7

Cleary, however, had enough evidence to satisfy him-
self that he could get a conviction, He had worked out
his connection between the gangs of thugs working by
night in the city and the mysterious disappearances of
Six-Mile House guests. He knew that recent robberies
along the mail line were traceable to same source.

The last link of his chain forged itself one. morning
early in 1819, when there came a wild clatter of hoofs
on Charleston’s cobblestones and a rider—bareheaded,
torn, and bloody—dashed into the city calling for. help.
This was John Peoples—whom papers of the day naively
named “the countryman, Peoples”—just escaped with
his life after being attacked and robbed at the Six-Mile
House. His identification, later on, proved most power-
ful evidence in sending his one-time hosts to the gallows.

S°: according to The Newspaper Press of Charleston:
“State Sheriff N. G. Cleary, with mounted citizens

and Charleston Riflemen, Washington Light Infantry

ae Northern Volunteers, moved:on this nest of ban-
its.”

Cleary arrested the innkeeper and his wife. Their
tavern appears to have been the brigands’ arsenal, for in
it were found: “nine or ten loaded muskets with fixed
bayonets, also keg and large canister of gunpowder.”
And on the premises was found a large box, covered
with a little earth and brush, and-containing the bodies
of a man and a woman who had tasted of the Six-Mile
hospitality.

The prisoners were taken into Charleston to the
county jail and a Mr. Ross left in charge of their inn.
Other members of their gang rallied and attacked and
attempted to kill this deputy. He escaped into the woods,
aig by shots from muskets. Behind him went up in

ames the murder house and its outbuildings—burned,
presumably, by the gangsters, to prevent discovery of
other evidence against them.

Suspicion and popular indignation extended to the

Five-Mile House as well. It was “burned by the au-
thorities” (say newspaper accounts) “‘with the consent
of its owner.”

Much maudlin sentiment was wasted upon the two
cold-blooded murderers in Charleston jail. High-born
ladies visited them, wept over and sympathized with
them, carried them delicacies of every kind. These atten-
tions appear to have been showered upon handsome and
appealing John Fisher, rather than upon his wife. This

may have been because Fisher was the gentler type, con-

fessing and repenting, while the woman shrieked and
railed at all who approached her. Or this may have been
merely because John Fisher was handsome and appealing.

While sentimental society women swept the dirty
Sat floors with flounced and trailing skirts, the New
York National Advocate tried to make the rather foolish
point that the man and his wife could not both be guilty.
If the woman, alone, was guilty, said that organ, her
husband should not be executed with her; but, if her
husband was guilty, she must have been forced by him

‘to commit these crimes and so must be excusable from

capital punishment.
Thus speaks the City Gazette of March 24, 1819:

Four of the persons some time since arrested in the
vicinity of this city, on suspicion of Highway Robbery,
were yesterday brought before his Honor, Judge Bay,
on a writ of Habeas Corpus; when two of the party
were admitted to bail. Fisher and his wife were re-
manded to prison to await their trial at the next
Sessions.

For, after the capture of the two arch-criminals, the
authorities had. busied themselves with rounding up
other members of their gang. Ross, after his rough
treatment and narrow escape, made an affidavit; and,
upon it, the Honorable Judge Colcock issued a bench
warrant. The arrests took place in February, 1819.

At the next Sessions, despite sentimental opinion,
written or voiced, to the contrary, twelve good men and
true found John and Lavinia Fisher both guilty of the
“many atrocities and crimes” of which they were ac-
cused. They appealed.

On September 13, 1819, Fisher and another prisoner
escaped by forcing a hole in the wall and going down a
blanket rope. A reward of five hundred pounds was
offered by His Excellency, the Governor, for Fisher’s
apprehension.

Next day two men in a canoe stopped somewhere
along the city waterfront to purchase groceries. The
grocer, suspicious, caused their arrest. They were
Fisher and his companion in flight. All their arrange-

ments had been made to sail next tide on a schooner for ,

Matanzas. It has always been believed that only the
hope of, in some way, securing his wife’s release caused
the condemned man to venture into the city on a pre-
tense of buying foodstuffs.

AS their next trial, the former sentence was upheld,
and the Fishers were condemned to be hanged on
February 4, 1820. They asked a respite “in order to
prepare themselves to meet their God,” and the date was
changed to February 18. The Courier on February 18,
1820, carried in its editorial column the following:

EXECUTION!!!

The awful sentence of the law is this day to be car-
ried into effect upon John Fisher and Lavinia, his wife,
who were sentenced to:death at the late sitting of the
Constitutional Court for the crime of Highway Rob-
bery. We understand that they are to meet their fate
just without the lines, on the Meeting Street Road, be-
tween the hours of 12 and 4 o’clock. ;

- At that time C
; junction of the
e Line Street. Th:
F ‘city’s northern |
‘countries, an exe
‘an immense thr
- innkeepers die.
| ous small childr
© ‘“Mauma;” for |
= customed to bri
= they could possi!
t. If we can for
~ the quaint and o
> given in “The (
> Hart, sen., King
It appears th:
* was an artist in
» of looking upon
hangman might
} sheriff and ja
were accustc
when an exe
» approached, to
> this fellow secu
jail in a cell x
© the condemned
b oners.
According tc
- description of
> Blake White, w
® went that day
Eprison, the la
tions of the ha:
© (for his for
E liquor) mingle
those of the d
swretches whc
=was about to
F into eternity. >
> til they were le:
eto enter the
} which was thei
= bril, was their
*tioner releasec
» must have beer
* able creature, |
; on the verge of
§ for, at the si
phim, the w
» Fisher womar
- “loose white ;
» condemned pa
fand sheriff ar
© officials accon
| their tragic ric
& ; No account
= bind a victim’s
» was due to M
the last she sc:
-must be forth

I


a

4 The
true story of

t happened to the MAR South Carolina’s
ers who stayed at the 7m

most famous
mile House near 3
eston? What was the %

; murder plot.
1ation of their dis- q

rance? The mystery
dlved when the bodies
skeletons of twenty-
‘ictims were found
:d around the inn.

itime. Poorly lighted
c near the waterfront
ors came out of the |
of the law finally ar-
sometimes in shabby }
s of the aristocrat and ’
to do? How to trace |
time was dependent, ’.

There were no de- |
t of measuring foot- |
ard of. When dark-
ugitive, that was usu- §

Shomes.

leary to do what was } Sed
irk as was done in our | :
together and to trace
3 upon citizens with
3 from the upper rural
farmers were then ac- 3
ston on horseback, or |
3es, while behind them
ners with cotton and
er belated, these coun-
duse six miles out of
ad attained a reputa-
and whose hosts were
id Lavinia Fisher.
t merrily around the }
ered there to eat and.
ng into the city to sell |
‘y, and then journeyed |
ll. And, carrying far f
wadays, they rode out | im”

dashing away.

Where the Murderers Were Hanged

eases

4 | of his grandfather, Major
; 7 William Daniel, of Edge-
{ field and Saluda, who was

Intersection of Meeting and Line Streets, Charleston, as it looks today. In 1820 this was out-
side the city limits, and it was here that the keepers of the Inn of Death were hanged.

accustomed to come to
Charleston on horseback

fof Charleston on thoroughbreds or sped out in trotting to purchase goods for his plantation and large country
gigs, to return to families and plantations. Most of _ store.

hem got back safely; but some did not. Some dis- This gentleman was not stopping at the Six-Mile
sappeared—disappeared between Charleston and their House; but he had upon his person a considerable sum

of money, and that fact was evidently known. At any

» There was, at that time, only a lonely woodroad called _rate, he was hailed at the inn and requested to deliver a
~The Path,” or “The Crooked Path,” leading northwest letter. He agreed, but upon finding that the letter was
pup Charleston peninsula toward other towns and rural. not ready, became suspicious and refused to dismount
pdistricts. Upon that road one might travel. for miles and wait—and probably avoided a trap and saved his
without meeting another human being. It takesa Gerald life by so doing.

Chapman to risk holding up a car in city or upon motor

ghighway today. In 1819, on a South Carolina road, a HE late Mr. J——, of, St. George, S. C., told me
leisurely robbery and murder might, by the law of aver- that, as a little child, he had had a personal experi-
pages, take place and, with luck, leave time,to bury the ence with the bandits. His father, farmer on a large
tbody and obliterate all traces before interruption oc- scale, had been to Charleston to sell a crop and had taken

the little boy along in a gig with a pair of magnificent

© Stories began to filter back to Cleary—stories that trotters,

shandsome horses were in possession of certain men “up Returning home, they left the Planters’ Hotel before
on Charleston neck,” stories that a missing planter had dawn and passed the Six-Mile House just after day-
athade a late start from the city and had declared his in- break. As they passed, several men leapt out from the
tention of stopping at the Six-Mile House that night and thick brush on either side of the road and caught the
getting a start next dawn upon his journey, stories that horses’ bridles. Mr. J
others, who had no intention of stopping, had been way- telling me the story, but he declared that he could still
Haid in that vicinity and had escaped by whipping-up and __sée that picture: the plunging, rearing steeds, the man

was an old gentleman when

who got a hold upon the bit of one and the man who

= Still no proof against the pleasant inn and its popular slipped and fell beneath the hoofs of the other, his
sKeepers—but stories which were not pleasant. They father standing up to lash out at robbers and at horses,
ame from the men who had whipped up and, by the the mighty leap which freed them from their last assail-
grace of God, ridden over their assailants. The stories ant and nearly threw him from the gig, the disappointed
Which never came back were the ones locked between villains picking themselves up out of the dust behind the
the fleshless teeth of the twenty-one skeletons afterward galloping team.
found in the near-neighborhood .and: upon the premises Not long before the arrest of the Fishers one of my
of that well-known and well-patronized hostelry. own ancestors stopped at the ill-starred place. While
Writing under date of August 18, 1922, in The News unpacking, the faithful slave who was his bodyservant
zy Courier, W. L. Daniel, of Charleston, tells the story or valet, came in and warned him that he had overheard

35


“burned by the au-}
i) “with the consent | an

‘asted upon the two |
High-born:
d sympathized with |
‘y kind. These atten- j
upon handsome and
This
he gentler type, con- ;
roman shrieked and“
t this may have been |
lsome and appealing. |
2n swept the dirty 4
ling skirts, the New 4
ke the rather foolish |
d not both be guilty. |
aid that organ, her §
ith her; but, if her 4
been forced by him |

be excusable from °

ton jail.

upon his wife.

arch 24, 1819:

1ce arrested in the
Highway Robbery,
Tonor, Judge Bay,
two of the party
his wife were re-
trial at the next

arch-criminals, the
with rounding up |
3s, after his rough
‘an affidavit; and,
ck issued a bench |

‘ebruary, 1819,
‘ntimental opinion,

elve good men and §

both guilty of the

lich they were ac- §

d another prisoner 4
and going down a |
adred pounds was
srnor, for Fisher’s .

copped somewhere ;
The §
They were |
All their arrange- |
on a schooner for ¥
‘ved that only the ©

se groceries.
rest.

fe’s release caused
the city on a pre-

tence was upheld,

1 to be hanged on |

spite “in order to
and the date was
ron February 18,
e following:

is day to be car-
avinia, his wife,
ite sitting of the

Highway Rob-
1 meet their fate

Street Road, be- a

esheriff and jailer
Pwere accustomed,
‘when an execution
‘approached, to lock
ethis fellow securely in
pjail in a cell nearby
the condemned pris-
Foners.

- According to the
description of Joh:
‘Blake White, when he
Bwent that day to the
prison, the lamenta-
Htions of the hangman
e(for his forbidden
sliquor) mingled with
sthose of the doomed
ewretches whom he
swas about to launch
Finto eternity. Not un-
ptil they were led forth
fto enter the coach
-which was their tum-
-bril, was their execu-
etioner released. He
= must have been a piti-
able creature, himself
*on the verge of. death,
'for, at the sight of
-him, the wretched

» their tragic ride.

=a

>

At that time Charleston’s Tyburn was a hill near the
unction of the Meeting Street Road and the present
Line Street. The spot, now more than a mile within the
Fcity’s northern limits, was then outside.
countries, an execution was then a public spectacle, and
‘an immense throng had gathered to see the notorious
innkeepers die. In it were infants in arms and numer-
ous small children clinging to hand or. skirt of negro
)“Mauma ;” for the slaves, delighting in such, were ac-
& customed to bring their little charges to every hanging
; they could possibly attend.
> If we can forget its gruesome detail and regard only
- the quaint and odd custom described, we find the account
= given in “The Charleston Book, Published by Samuel
Hart, sen., King Street, 1845,” of deep interest.

» It appears that the Jack Ketch of that day and city
‘was an artist in his line, but that he had a fatal custom
fof looking upon the wine when it was red. Asa drunken
hangman might cause any number of. complications,

» Fisher woman shrieked® and collapsed.
“loose white garments,” and “securely pinioned,” the
* condemned pair were placed in the coach with chaplain
; and sheriff and, with medical men, jailers, and other
® officials accompanying in other carriages, started on

+ No account tells whether it was then the custom to
ind a victim’s arms before leaving prison or whether it
Swas due to Mrs. Fisher’s continued resistance.
sthe last she screamed, fought, and insisted that a pardon
Fmust be forthcoming from the governor. Not so her

THE INN OF DEATH

As in older

was ready and willing to die.

Where the Inn of Death Stood

Negro cabins, with B sine yay blooming in tin cans and chickens
scratching in the yard, now mark the spot where once stood the Six-
mile House, the Inn of Death, scene of many terrible murders.

Dressed in

37

apparently weaker husband. However cruel and con-
temptible his deeds, he regained in those last seconds on
the scaffold his lost manhood. He thanked the sheriff
for many favors, tried to comfort his struggling wife,
confessed his crimes before the multitude, and said he

Tradition says that the Six-Mile Inn had a trap door
in the: floor of one of its bedrooms, and that John
Peoples—country gentleman journeying on horseback
from Habersham County, Georgia, to the Carolina sea-
port—noticed a crack that ran crosswise to all the floor-
ing boards. Suspecting something, he did not go to bed,
but stood guard, with drawn revolver, at the door of his
room. Sometime in the night, to his horror, the great
four-poster bed began, slowly, to sink before his eyes.
Slowly it sank—so slowly and gently that a sleeper might
not awake—until there was left but a gaping square
which had been outlined by that crack.

Frozen with horror, Peoples stood—until the bed rose

back to its place.
Then he realized that
his hour had come—
realized that those
waiting down below
to receive him, sleep-
ing, when the bed de-
scended, would know
that he had found
them out and would
not let him leave the
inn alive.

Then—footfalls on
the stair! He un-
bolted the door, leapt
behind it. As they
rushed it, he, too, at-
tacked, shooting and
striking right and left.
Against odds, he man-
aged to get out of the
house, to find—under
cover of darkness—
the stables and his
horse, to leap upon
the steed and gallop
away and into
Charleston.

Tradition also says
that, from their shal-

low graves on and near the premises, the bones of
twenty-one victims were finally unearthed.

But. Lavinia Fisher’s bones lie deep—with those of
her husband and partner in crime—on the site of that
ancient Potter’s Field, under the Charleston traffic of

today. And her claim on memory rests upon two things:

Up to

‘Carolina.

She was hostess at that murder den which our great-
grandparents called the Six-Mile House and which we
call the Inn of Death, and she: was the first and last

woman ever to be executed by the State of South

Be sure to read

M. M. Musselman’s Greatest Story
‘A NIGHT OF TERROR”:

In next month’s issue of REAL DETECTIVE TALES

ys ion eae

Sse

CHOTANKERS

hanger: 35 bakers: 1 brewery: 12 brickyards: 9 book and stationary stores; 4

book-binders: ...9 book and newpaper printing offices: The following daily

Gazettes are printed, viz: ‘The Louisiana Courier,”’ the “Orleans Gazette and

commercial Advertiser,” the ‘Louisiana Advertise,” the “Friend of the

Laws,” the ‘Louisiana Gazette,” and the ‘Commercial Report,” a weekly

paper; three of which are in French and English: one lithographic printer:

many commission and exchange brokers: 4 lottery offices: 37 coopers: 53

cabinet makers: many builders, carpenters and bricklayers: 6 large steam saw

mills, one of which is of brick, embracing a grist mill, and was built by Dr.

George Hunter: 105 cordwainers, employing 753 persons: 16 confectioners

and pastry cooks: a number of public officers: several surveyors: 4 carvers

and gilders: 13 coach and harness makers: 44 coach, sign, ship and

ornamental painters, glaziers and paper hangers: 13 portrait and miniature
painters, several landscape and scene painters: 4 musical instrument makers
and stores: many musicians, dancing and fencing masters: 2 chocolate
manufacturers: 6 cutlers: a number of French and English comedians: 5 chair
stores and makers: 24 drug and apothecary stores: 6 large rum distilleries, 3
for gin and 9 for cordials: 7 dentists: 4 dyers and scourers: 3 engravers: 2 iron
foundries, lately established: 1 fringe maker: a number of gardeners, fowlers,
fishermen, oystermen, boatmen, mariners, caulkers, stevedores, riggers and
ship carpenters: 5 sailmakers: 8 furniture stores: 13 glass, china and queens-
ware stores: 17 gun smiths: a very great number of would-be gentlemen and
ladies, or in other words, persons who have no apparent business: 4 working-
hatter shops: 46 hat, shoe and clothing stores: 21 hardware and ship
chandlery stores: a number of perfumers and hair-dressers: 2 ice houses: 1
laboratory: several large livery stables and veterinary hospitals: a number of
wood and lumber merchants: 2 last makers: 1 brush maker: 1 screw cutter:
several millwrights and engineers: 1 mathematical instrument maker: 2
mineral water establishments: a number of midwives and nurses: many
notaries, translators, interpreters and ship brokers: 3 pump, block and mast
makers: 1 plumber: 2 ropewalks: 12 saddlers and saddlery stores: 1 sugar
refinery: 4 stone cutters: 1 spectacle maker: 2 sculptors: many shoe-black: 62
working tailor shops: 19 tin and copper smiths: a great number of trades,
pedlars and traveling merchants, of all colours: 4 tanners and curriers: 77
tobacconists and segar makers, employing 417 hands: 4 soap and candle
manufacturies: 3 turner-in wood and metals: a number of victuallers and
sausage makers: 22 upholsterers and mattress makers: 2 umbrella makers: 3
wheelwrights: and 56 watch makers, gold and silver smith and jeweller, stores
-- 150 licenced drays and carts: 16 two-wheeled and 13 four-wheeled
carriages for hire.*?!

While there were several very fine hotels such as the Planters’ and
Merchants’ Hotel containing 100 rooms on Canal Street, it is much more
likely that Gilson Foote selected instead one less expensive to put up Sarah, the
boy, and himself for a few days until a townhouse could be secured. A likely
choice would have been Tremoulet’s Hotel near where they would have
disembarked the ship at the southwest corner of the public square, to be
renamed Jackson Square in 1856. Master and Madame Tremoulet were

41John Adams Paxton, The New Orleans Directory and Register (New Orleans: Printed
for the author by Benjamin Levy and Company, 1822), pp. 18-20.

ESCAPE TO NEW ORLEANS 183

growing quite old and by 1819 the place was frequented by an “exceedingly
mixed and daily changing’’#” clientele, apparently not bothered with the laxity
of cleanliness which existed at the hotel.

Soon Gilson had located a townhouse on Bienville Street, four blocks in
from the levee, near the corner of Bienville and Bourbon Street, only a six
block walk to the Cathedral and the public square.

Doubtless, it would be a mistake to characterize this new location a
significant improvement over their first lodging if it was indeed a second grade
hotel such as Tremoulet’s as assumed; but at least the house offered
permanency and room for the servants, which Gilson acquired seemingly quite
rapidly. Sarah found herself in kind of a buffer area between a number of free
Black families and more financially able family groups such as merchant J.B.
Gilley, Anthony Rush and William Ferris.* And the townhouse had quarters
for servants, and there were six in the household while Gilson was traveling.
Apparently he took one of the men into the interior with him on his trips to
buy land and oversee the leasing or planting. Before one of these journeys,
Gilson promised Ned, Peter, and ‘‘Palso’”’ Charles that if they would give him
their best in the work they undertook and in looking after his son and young
mistress Sarah, while he was away, he would free them if he ever left
Louisiana.‘

Gilson, Jr. was far too young to question the rapidity with which his father
restored his fortune, even apparently increased it, after admitting ‘‘all is gone”
four years earlier. Unfortunately, later actions of Gilson Foote would shed
light on the reasons for this less than miraculous financial comeback.

Gilson must have left Sarah alone with young Gilson most of the time.
Certainly, that was his style, a way of life that for most men would have been
impossible to change. In August, 1820, Sarah was alone with young Gilson and
in New Orleans, when an unexpected caller came to the door, explaining he
was a Federal Census taker. Whatever Sarah’s reaction to his request to be

‘allowed to come in and take down some basic information about the family, he

had an answer already prepared for the delay and avoidance response. He

422] abtrobe, p. 24.

43No New Orleans city directories were published between 1811 and 1822. Inorder
to ascertain Sarah Roberston’s (alias Flemming) residence, I have compared the
families that preceded and followed her on the 1820 Louisiana Census with their
directory listings. Jean B. Martin and Francois Leclere, a free Black with family, are
shown adjacent to Sarah Flemming [sic] on the census. The 1822 City Directory shows
both living at 51 Bienville. On the other side of Sarah, just four families away according
to the census, is N.A. Barron, Jr. The City Directory lists him at 29 Bienville. See Paxton.

44The names of the slaves are given in Gilson Foote’s Will, Box 37, Package 1439,
Edgefield County, South Carolina. There can be no doubt that Gilson bought land in
Louisiana for he refers in the will to “all my lands lying in the State of Louisiana.”


186 CHOTANKERS

The census taker added Sally Flemming to the very bottom of his census list.

The census taker showed:

Male Female

One 0-10 One 16-26
This time she had been truthful about her own age, but consistently reported
Gilson as younger to justify her claim that she was his mother. During January,
the census taker alphabetized his tallies and Sally Flemming as the last ‘“F”
entry ended up at the very bottom of the ‘'F”section. On February 1, 1821, he
officially ‘subscribed’ his census lists and passed them on to the state
tabulators.5©

I

About the same time Gilson, his son and mistress arrived in the area of Ashe
County, North Carolina, and Grayson County, Virginia, Sarah became
pregnant. Gilson surely had promised to marry her eventually. That time had
arrived, if a wedding was ever to occur. But apparently he still feared capture
more than he feared bringing a son or daughter into the world by a woman to
whom he had not been married. As her time arrived, Gilson moved her to his
friend's place, William Webb’s in Ashe County. Here in September, 1821, she
gave birth to a girl they named Lucinda.%°!

This was a family that most 19th century families would find unusual--the
father at 57, a 21 year old mother, and a brand new baby sister for Gilson
Foote, Jr., now 16 himself. The year passed quickly and in late 1822 Sarah
announced another pregnancy to Gilson.

Shortly after, the news must have arrived that Gilson’s brother, Newton,
after several years of first intermittent and then lingering illness, might die at
any time. Gilson would have wanted to see his oldest brother just one more
time, and doubtless Sarah understood. Surely, he promised to return by the
time of their second child’s birth, but it was the last time he would see Sarah
and the children.

Two years before, Newton, already in declining health and under the care of
Dr. Andrew Park, had moved in with his sister Elizabeth and her husband,
Ephraim Lyles. Dr. Park had done as much as he could for Newton, dating
back to November 16, 1820, when he had charged Newton $2.50 to "Vent &
Rid detention.” On July 26th, 1821, Newton saw the Doctor to have him lance
an abscess. During 1822, with his physical problems growing more severe,

°© 1820 Census, Grayson County, Virginia, page 47. Obviously, for Sarah Robertson
to be in North Carolina she would not be shown in the New Orleans City Directory. In
fact, this is the case. Paxton starting taking information in February, 1822, completing
it by May 1 of that year. There was no Sarah Flemming remaining in New Orleans.

Sl All of these facts are taken from Gilson Foote’s Will.

ESCAPE TO NEW ORLEANS 187

Dr. Park prescribed gin or whiskey for medicinal purposes, charging Newton
18 cents for half pint of gin and 25 cents for three half pints of whiskey on
various occasions.

By early January, 1823, the family turned to Dr. de Graffenreid for help in
treating Newton. On the 4th he provided $2.75 in prescriptions for Newton’s
ailments. The next two days with Newton near death, Dr. de Graffenreid spent
30 hours at the Lyles home giving Newton ‘Attention and Detention.’’ Then
on the 7th he was summoned again in the middle of the night. The physician’s
bill of the 11th tells the story of Newton’s last hours. For after prescribing
more medicine on that day, Dr. de Graffenreid made a notation: ‘‘Credit by
medicine returned.” There are no more entries. Newton Foote had died soon
after dictating and signing his last will and testament, leaving all his estate to his
sister Elizabeth’s girls ‘Peggy Kincheloe Johnson, Rebecca Valentine Lyles,
Elizabeth Behethlon Glenn and Louisa Frances Lyles.’

If Gilson Foote arrived before the funeral, it is unlikely that he attended for
he was still a wanted man. The evidence points to a decision to postpone his
return to North Carolina. After several months in the Chester County area, he
headed overland to Louisiana, probably to collect some of the money due him
from the manumission of his slaves and to check on the rental of his property
in the state. He took a route southwest, crossing Newberry County.

At Newberry lived his niece, Harriet, who had married Dr. Burr Johnston.
Dr. Johnston settled in Newberry in 1814 after graduating from South
Carolina College three years earlier, then studying medicine under Dr. Joseph
Waldo and attending medical lectures in Philadelphia. He and his family
would move to Alabama in 1840, where his son, Dr. John Foote Johnston,
practiced medicine after graduating in 1848 from the Medical College of South
Carolina.5?

Arriving in Edgefield County, South Carolina, in August, 1823, probably
finding his horse tiring, Gilson turned to what by now had become a long
habit; even though he didn’t really need to do so, he stole a horse.

On this stolen horse, he rode to his cousin’s house. Gilson Yarborough, Sr.,
the son of Gilson Foote’s Aunt Frances, had reached 50. In the household was
Gilson Yarborough, Jr., who had turned eight just after the New Year, 1823,
the 7th of 12 children.

502Newton Foote’s Will is recorded in South Carolina Wills, Volume 2, Section G,
(W.P.A. Transcript in the South Carolina Archives, Columbia), p. 26. The other
papers including medical bills can be found in his estate package in the Chester County
Courthouse. See Apartment 20, Package 309.

53[n just a few years Harriet Foote Johnston was joined in Newberry by her mother
and sisters, Sarah K. Foote and Isabella Harper Chambers. See Thomas H. Pope, The
History of Newberry County, Volume I, 1749-1860 (Columbia: University of South
Carolina Press, 1973), pp. 241 and 261. :


188 CHOTANKERS

His visit was cut short by the arrival of the Edgefield County Sheriff Belcher.
No doubt a passerby had spotted a neighbor’s missing horse tied up at the
Yarborough home. The Sheriff arrested Gilson Foote, confiscating the horse
for evidence, and took them both to the jail in Edgefield.5%

The shock of having his cousin arrested for horse stealing in his own home
before the eyes of his children sent Gilson Yarborough, Sr. riding hard for his
sister’s. Behethland Foote Butler had known Gilson Foote best of all of the
family in Edgefield County; after all, he had visited her regularly on his trips
into Georgia and beyond.5°5

William Butler had died in November, 1821, but of Behethland’s eight
children, several still lived at home in the summer, 1823, when Gilson
Yarborough, Sr. galloped into the yard yelling for Behethland. Her sons and
daughter quickly joined their mother on the front porch to hear Gilson
Yarborough’s seemingly unbelievable account of what had transpired. A more
distinguished family could not have been gathered to hear the shocking news
of their cousin’s actions. The present and later achievements of the Butler
children were recounted prior to 1857 by a local historian of Edgefield
County. He wrote:

James was Sheriff of Edgefield and a colonel of State cavalry at his death.
George Butler was a lawyer, and during the war of 1812 served a major in the
regular army. William was a physician and was a surgeon in the army at New
Orleans. He also served one term as Representative in Congress. Frank Butler
was a lawyer. Pierce M. Butler was an officer in the regular army; was
President of the Bank of the State; was Governor of South Carolina, and fell at
the battle of Cherubusco at the head of the Palmetto Regiment.

Jack K. Williams, Vogues in Villainy: Crime and Retribution in Ante-Bellum South
Carolina (Columbia: University of South Carolina Press, 1959), p. 20. Dr. Williams
transcribed the name as “Gibson”, a frequently encountered error among those
researchers not expecting the given name of Gilson. Unfortunately Dr. Williams, past
president of Texas AGM University, has destroyed his note cards for this book and
this author has been unable to locate the source of the information that Gilson’s action
was from “'force of long habit’’ as Williams describes it. One chapter of this book with a
reference to the Gilson Foote case has been published in journal format. See Jack K.
Williams, ‘‘White Lawbreakers in Ante-Bellum South Carolina,” The Journal of
Southern History, Volume XXI (August, 1955), pp. 360+.

°°5Motte Yarborough, an attorney in Saluda, South Carolina, told this author in a
June 11, 1975 phone call and in a subsequent visit to his home, that there was a family
tradition that a relative had been arrested for horse stealing. There was a definite family
concern because his name was Gilson, the same as Motte’s grandfather and great-
grandfather. He clearly remembered his Aunt Mary and his father, Frank M.
Yarborough, discussing the hanging on several different occasions. It was Motte
Yarborough who first connected the horse stealing with a visit by Gilson Foote to his
great-grandfather’s house. His grandfather, Gilson Yarborough, Jr. died in 1893,
providing plenty of family opportunities for the hanging tradition to be repeated to
later generations.

ESCAPE TO NEW ORLEANS 189

Emmala, the only daughter, was married to General Waddy Thompson,
who was a lawyer, a member of Congress and Minister to Mexico. Leontine
died young.

Andrew Pickens Butler, the sole survivor, has been a lawyer, a Judge, and is
now the senior United States Senator from South Carolina.

It was 26 year old Andrew Pickens Butler, already an attorney, who stepped
forward to grasp his mother’s arm and suggested they get legal assistance for
Gilson Foote as quickly as possible. Pickens had graduated from South
Carolina College in 1817, and having then read law, gained admission to the
bar in 1819. His appearance as a young attorney has been described.

There was something uncommonly engaging in Butler's appearance and
manners. At that time he was slim, he had already lost an eye and had a
nervous manner of shaking his head. He seemed restless, but it was the
restlessness of a spirit too full of enjoyment for repose. He was always ready
with a repartee which was without bitterness but full of humour.*”

But there was no humor in his voice as he proposed that they must find an
attorney unrelated to Gilson, in order for him to be represented properly and
effectively. Already, Pickens had political ambitions of his own; he quickly
realized the damage which would result from too close association with a horse
stealing charge. He suggested Whitfield Brooks.

The son of Pickens Butler’s Aunt Elizabeth Butler and Zachariah Brooks,
Whitfield Brooks had been born and raised just across Big Creek from the
Butler home, a few minutes ride away. Fortunately, he was at his mother’s and
after agreeing to offer his services to Gilson Foote, he hastily mounted his
horse and rode toward Edgefield Courthouse, where he had maintained his
residence since becoming Commissioner in Equity for Edgefield County in
1815.

But the presence of Whitfield Brooks, who Gilson Foote readily accepted as
his attorney, and the influential Butlers could not prevent the movement of
justice and in the first week of the Fall term of Court the Grand Jury returned a
“true bill.” As the record reads, ‘the was arrained and upon his arrainment
pleads ‘not guilty’--ordered that the prisoner be remanded.’"°°8

On Wednesday, October 8, 1823, the Foote trial reached the docket, but
Whitfield Brooks, knowing that he needed more time to prepare his defense
pleaded for a delay so that proper preparation could be made on behalf of his
client. The Judge ordered the court adjourned to consider the postponement.
But the next morning, in ‘'The State vs. Gilson Foote’’, the Court issued this
order:

5John A. Chapman, History of Edgefield County (Newberry, S.C.: Elbert H. Aull,
Publisher, 1897, pp. 44-45.

5°7Samuel Gaillard Stoney, editor, ‘The Memoirs of Frederick Adolphus Porcher,”
The South Carolina Historical and Genealogical Magazine, Volume XLVI (1945), p- 79.

5S8Court of Gencral Sessions, Fall Term, 1823, Edgefield County, South Carolina.


184 CHOTANKERS

surely had already encountered the problems Paxton would encounter two

years later, attempting the same basic procedures:
...some persons entirely refuse to answer our queries; others must be waited
upon at some suitable hour as they cannot condescend to give short answers at
dinner-time, poor creatures; some houses are closed, and in one instance,
although we acted with all politeness, an up-start or would-be gentlemen closed
the door of another person’s house in our faces; but he ought to be forgiven as
it was after dinner; many sur-names of different orthography sound alike, and
the information obtained respecting orthography, names and professions,
being often vague or incorrect, which it is impossible entirely to obviate; a
large proportion cannot spell their names, and their is a great ‘confusion of
tongues;”’ a number are so much afraid of being found that they give wrong
names; many think us tax collectors or enrolers of militia, and on that account
refuse to give their names, and tell us we must ‘find out by our learning.’4%

Her first reaction must have been to tell him to leave, but then she would not
have wanted to make him suspicious. Surely the best response was offered; she
agreed to answer his questions. Any children? One son she replied, wishing to
change the true facts as much as she dared just in case this information should
get back to the legal authorities in South Carolina. She lowered his age to under
ten and added several years to her own saying she was over 26 to make her
parenthood feasible. And ‘tyes’ there were slaves. The Census taker would
have recorded the information just as she gave it to him.

Males Females
One 0-10 years One 26-45 years
The slaves he listed as:
Males Females
One 0-14 Three 26-45
One 26-45 One 45+
One 45+
In the left column he put her name, ‘‘Sarah Flemming.”

Not only had the Census taker been probing into. what was ‘“‘ne’er his
business” but now health officials came around doing the same thing. New
Orleans had an yellow fever epidemic peaking in August, 1820 killing
thousands, including Benjamin Latrobe. The Board of Health and Deaths
added firm requirements to the code in an attempt to control just such
outbreaks. Sarah’s landlord would have cited it to Sarah, if she had inquired
why he now asked many questions about her background.

All keepers of inns, taverns, boarding houses, or other places where
persons are lodged for hire, shall once in every week furnish to the Mayor of
the city at his office, a list of the persons lodging or boarding at their houses
respectively, according to the:printed forms which the Mayor shall furnish at
the expense of the corporation, which shall contain the names, apparent age,
occupation, place of permanent residence; and have respectively lodged or
boarded in such house; and every person offending against this article, shall

45Paxton, p. 7:

ESCAPE TO NEW ORLEANS 185

forfeit one hundred dollars, or if knowingly furnishing a false return or list,
shall forfeit a sum of five hundred dollars.*%

Again this sort of probing frightened Sarah. Would they be found?
Apparently, Gilson too became concerned when she explained about all the
information she had been giving out. If not anxious about the continuing
questions asked by authorities, he would have been terrified of the chances of
becoming Yellow Fever victims. Gilson decided they would leave Louisiana as
soon as possible.

Calling in the Blacks they explained their decision and Gilson talked of the
terms of their manumission. “Palso” and his family would be given their
freedom immediately and allowed to help earn Peter’s and Ned's. As Gilson
Foote would later explain the price of their release:

_..the sum of twelve hundred dollars, due to me from two families of
negroes, to wit, Peter’s and Ned's as the consideration & condition of a deed
of manumission executed in their favor before my departure from that State
[Louisiana] & upon the payment of the said sum of money as aforesaid do
hereby confirm & ratify the said deed, manumitting the said Ned & his
family, Peter & his family, Palso Charles & his family.*%’

Gilson had selected their destination--Ashe County, North Carolina.
Because of the many years he lived in North Carolina, Gilson had friends anda
few relatives in the state. But more importantly, the area was as far removed
from the enforcement of United States laws as oné could want if he was trying
to avoid capture by authorities. For in 1820 there was no resident practicing
attorney, no notary public, no physician, no academy, no newspaper in the
whole county, making it practically a frontier region.*°8 As an indicator of its
remoteness, land was selling for as low as 5 cents an acre here in 1811.

The route Gilson Foote took his son and mistress to Ashe County is a matter
of speculation, but the most logical journey would have been by ship to
Wilmington, North Carolina, and from there across land by stage or wagon.
The house where Gilson Foote boarded Sarah and young Gilson when they
first arrived, probably during the month of December, lay just across the state
line in Grayson County, Virginia. Learning of her arrival, the Grayson County
census taker called to see if she had been counted. Clearly, not wishing to give
away details of their movement, or residency in Louisiana, Sarah responded
she had not. But this time she used the name Gilson often called her, Sally.4”

4% Ibid., p. 23.

497Gilson Foote’s Will.

48Thomas McGimsey, ‘Ashe County” in A.R. Newsome, “Twelve North Carolina
Counties in 1810-1811", The North Carolina Historical Review, Volume V, Number 4
(1928), p. 421.

In his will Gilson Foote referred to her as “Sarah or Salley’.