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ter rifle, was waiting for his victim to come along the road on which the young man was compelled to pass. At another time, at the witness' house, he was present when the sons of Lucius Williams were compelled to throw themselves upon their father and by violence prevent him from murdering, with his rifle, one or both of these nephews, who were coming over the hill in the direction of the house. All this goes to show the desperate character of the man whom these officers were proceeding to arrest. The testimony of Mr. Kelly, given in a manner in which the court does not hesitate to say would carry conviction of its truthfulness to any mind not engaged to discredit it, or not otherwise biased, was that he walked to the corner of the cotton house, that the dwelling was to the right, that Lucius Williams and one of his sons were lying on the veranda. It was immediately after dinner,-according to the testimony of the wife of John Williams, 15 minutes after dinner. These parties, Williams and his son, had eaten dinner, and had gone out on the veranda, —were lying down there. This had taken place while Kelly's assistants were making their way from the point of their concealment to the left of the dwelling. Kelly testifies that he had taken his position, and stationed Garrison at the other corner of the cotton house, where he had a range with his rifle on the door of the house. Garrison was armed with a Winchester rifle, Kelly with a 10-gauge, double-barreled, breech-loading shotgun, loaded with 20 buckshot to the barrel. He stated that he called loudly: “Mr. Williams, Gentlemen, get up from there and surrender.” "Mr. Williams, I am here to arrest you. You know who I am. Get up and surrender.” He stated that Williams looked over the railing, and then arose with his gun in his hands. Kelly said to him: “Put down that gun, Mr. Williams. I will not hurt you. Surrender.” At that time a girl rushed to the door. Holding his gun with his right hand, the deputy waved the girl back in the house. “Get back; get off the porch,” he exclaimed.
She ran back. At that instant he said Williams was approaching the door with his gun presented. Williams threw his gun to his shoulder and fired. Kelly returned the fire, and he thought he saw the result of the fire. He testified that the shots were simultaneous. Williams disappeared in the house. In the rail in the fence, within a foot or two of where Kelly stood, was the mark of a rifle ball, which might have been 44-caliber, breaking through one rail, knocking out a piece of the rail, going through a soft rail, and cutting down a stalk of corn behind. On the front of the house, all about where Kelly's testimony placed Williams, as high as his head, were the marks of Kelly's buckshot. John M. Williams was on the porch, according to the testimony of Kelly, and ran into the house on his "all fours." The deputy had a warrant to arrest John M. Williams, as he and Lucius Williams were both indicted for murder. He could have killed him, but would not do it because he was not armed, and was making an effort to escape. Firing then began on the left-hand side of the house. John M. Williams was in the house, indicted for murder and armed, or with the capacity of being armed, for the weapons he had borne for
months were there in the house. Lucius L. Williams, according to the testimony, was in the house. Another was in there, a man of the name of Grace. Steve Williams was in the house. A shotgun, two rifles, and a heavy revolver were in there. The house was encompassed on two sides by officers, the firing continued. Kelly states he saw somebody come to a window on the left-hand side of the door with a shotgun in his hands. He fired at it and, to use his
own expression, he heard a "lumbering” of the gun as it fell. A Winchester rifle is put in evidence, with a buckshot in the stock, and the window panes were found shattered, and a shot in the widow sill. The buckshot striking the rifle must have knocked the
gun from the hand of the person holding it. Hearing the firing continue on the left of the house, thinking perhaps his men needed help, Kelly stated that he climbed a ladder, which was at the rear of the buggy house, and attempted to look over it at the surrounding country to see how the battle progressed. The ladder did not reach quite to the top of the house. By standing on the top round of the ladder, and holding to the gable end of the house, he could look over it. He left his gun at the foot of the ladder and carried only a pistol with him. He came down from the ladder, and, as he attained the ground and proceeded to take up his gun, a shot came from the left of the veranda of the house in front, —to the right as he stood. Kelly said, in his testimony, “That shot nearly killed me.” He returned the fire and missed Lucius Williams, who had fired. The buckshot from Kelly's gun was found in the corner post of the veranda and in the banisters next to it. He then states that he saw Lucius Williams creeping back toward the chimney and loading his gun. Presently this desperate man again came forward, screening himself as much as possible by the banisters. Kelly could see his feet. He could not fire through the banisters, because he said he did not have a shot to throw away. He knew it was a battle to the death. According to the testimony of this witness, Williams came stealthily to the corner, and attempted to draw a bead on his intended victim, the officer of the law. In order to do so, being a right-handed man, he was compelled to throw his left side toward where Kelly stood. The corner upright post of the veranda made this necessary.
Williams fired one shot and missed. He worked the lever of his rifle, and was again taking aim. Kelly states that he took deliberate aim at him and fired. Williams fell backward, and his gun went off in the air. Kelly saw him no more until a few minutes afterwards, when he was lying in a pool of blood at the back of the house.
The court has attentively considered the evidence, anxiously and carefully, and, except a doubtful opinion of a physician as to the course of a shot, which may or may not have been deflected by some bone or integument of the body, there is not a syllable of evidence in the case that contradicts Kelly on any material point. Take, for instance, the testimony of Grace. Kelly did not see him on the front porch, and therefore testified he was not there, but in the excitement he might not have seen him, and perjury should not, therefore, be imputed to Kelly. He testified that he was lying there
asleep. He did not know whether Lucius Williams was asleep or not. He did not know whether he went to sleep before Lucius Wil-. liams did, or whether Lucius Williams, if he did go to sleep at all, went to sleep before he did, but the fluid from a quid of tobacco in his mouth, as he slept, choked him, and he awaked, to use his own expression, “o spit out of the veranda.” At that moment, with his back towards Lucius Williams, who, he testified, had been lying very near him,-as I remember the testimony, within two feet of him. He heard some one say “Lady, get off the porch," and immediately heard a shot. This he said was from the corner of the cotton house. He then said he could not tell where it came from. When asked, he said it seemed in front of him. He did not know whether there was a shot behind him or not. He did not see Lucius Williams any more on the porch at the time. Considerably alarmed for his own safety, he testified that he ran into the house, and ran to the other end of the hall, and, standing there, he looked back, and then saw Lucius Williams standing in the front doorway in a shooting position, directing his gun towards the cotton house. There is no conflict there. Might it not have been true that both men fired at the same time? Kelly so testifies. This man Grace testified that he did not know what awakened him. Might it not be true that the call of Kelly to surrender awakened him, and not the quid of tobacco? Can a man who is sleeping tell with certainty, when several causes might have awakened him, what was the actual cause? Lucius Williams was behind him, and must have had his gun, for the witness Grace afterwards saw him in the doorway with his gun.
What other conflict is there with that witness? None whatever. The young lady, Miss Vickery, testified that she went to the door. She did not hear anybody out there. She said all three men were asleep when she came to the door. It may be remarked that there must have been something very soporific about that dinner that all three should be asleep in 15 minutes after they had left the table. This young woman testifies she was sent for a book. She did not go for the book, but for some reason, she doesn't know what, she went to the front door and looked out. Is it not natural to suppose she heard Kelly calling on Williams to surrender, although she thinks not? Why should she, sent for one thing, go to the door and look out? She elsewhere stated that she did not know whether the Williamses were asleep or not. She heard an expression from Kelly, “Go back lady; go back," and she ran into the hall as quick as she could go, and then she heard a shot. Can it be that Kelly shot Williams lying on the floor, and shot him in the face, according to the contention of counsel for the state? It was four feet from the door to the window, and this young woman was standing in the middle of the door. Williams was lying against the window, with his feet towards the door of the veranda, and his head must have been eight feet, at least, from Miss Vickery, and, according to the testimony of Cameron, he was in full view of a man 35 or 40 yards away from where Kelly stood. Why should this desperate murderer, Kelly, have found it necessary to warn this young lady if he had intended to shoot the sleeping man? Indeed, would not the outcry have defeated his purpose by awakening his victim? He had no such purpose. Williams was approaching the door. This might have been after Miss Vickery ran in, for Kelly, like a brave man, although in deadly danger of Williams' rifle, was careful to warn the young woman. Miss Vickery did not hear him say anything except the warning to her, and Mrs. Williams, who was in the dining room at the rear of the house, did not hear him say anything. He swears positively that he did call to Lucius Williams, and awakened him, and that afterwards the shooting began. This is positive, and there is nothing to contradict it. They all testify that when Williams came through the house there was a wound on his face. All testify that Williams came into the door through the house with his gun in his hand. According to the testimony of the doctor, the wound in his face ranged upward and backward. Kelly was on the ground down a gradual slant. Williams was on the veranda, according to the testimony of Kelly, with his gun in a shooting position. The shot struck him while in a standing position, and would necessarily have ranged upward and backward. And it does not need that he should have been in a lying position to have received the wound. According to the testimony of the doctor there were three other wounds, any one of which was mortal. They were on the left side, one in front, one on the side, and one on the back. The physician testified that, in his opinion, the wound on the back could not have been received when Williams was firing from the corner of the veranda at Kelly. That is a conclusion; in that the court differs with him, But he testifies that it could not have been made while Williams was lying down on the porch. And he testifies, also, that the other wounds might have been received while Williams was at the corner of the veranda firing in that position, and all three wounds were mortal. But, suppose Kelly fired at this desperate man as he ran into the house. He would be then acting strictly in conformity to the law. This was not a duel under the Code. Nor was it an occasion of military punctilio, like that where the commander of the household troops of France exclaimed, “Gentlemen of the English guard, fire first.” Here are officers of the law, with warrants charging these prisoners with murder. They could not stand back. Their duty was to go forward, and to take these men, but at the same time they were not obliged to forego necessary precaution to save their own lives.
The testimony of Miss Vickery, instead of contradicting Kelly, confirms what he said. The wounds in Williams' body confirm what he said. The blood stains on Williams' rifle confirm the testimony of the officer. The testimony of all the witnesses is that the first two shots, which the learned counsel state were received in Williams' face, did not stop him. Then even this man might have made his escape through the back door of the house, across the fields to the woods. That was not his purpose.
He was like an Apache Indian driven to his last stand. He determined to die right there, as he had declared time and again he would do, or to kill Kelly, instead of fleeing, as he might have done, and as Grace did.
He stealthily stepped around to the left-hand side of the house, with the magazine of his rifle loaded with cartridges, to take advantage of Kelly when he was off his guard, and put him to death if he could by his skill as a marksman. Then he met his death as a result of his resistance to the law. There was never a case in which an officer was necessarily in greater danger, or who, in a case where such conduct was obligatory, acted with a more cool and conservative regard for the law and for his duty. I might go on with the other witnesses. It is not necessary.
So certain and clear is the mind of the court with regard to the innocence of these men, so certain am I that they did nothing but that which the law commanded them to do, that I will not longer discuss it.
The other officers who were with him were deputies. They are under the same protection as himself, and with three desperate men outlawing themselves, armed to the teeth, who had resisted and evaded the law for months, men for whom the government of the United States had offered rewards in order to secure their arrest, the officers were entitled to treat that house as a fortress, and to fire upon it to keep down the fire of the parties inside, and thus effect the arrests which it was their bounden duty to do. The testimony of the shots confirm this. Not one shot was there which would justify the conclusion that Williams was fired upon while on the floor. The testimony of Cameron places the nearest shot to the floor in the window sill as 131 inches, and the buckshot scattered from there up. He did not know whether they reached the top of the house or not.
And as Williams sprang to the door and fired his shot, pausing for a moment when Kelly fired, there were seven buckshot right where Williams was stated to be. There were two in his face, and others scattered around. Why, then, is there any reason to send these men for their trial for murder into the county where this homicide was necessarily committed by the officers of the law? The court sees none. The law commands us to protect the officers of the court in the discharge of their duty. The proceeding is effective. It is regular. The hearing has been full and ample. The parties charged are not guilty of the offense of murder, or any other offense. They have proceeded with due discretion and caution in the performance of their duty, and in the exercise of the power intrusted to me by the laws of my country to dispose of these parties as law and justice may require, I order their discharge and also direct that, in the order, it be recited that they shall not be further interfered with by any one for the same alleged offense.