Bill Smothers – Continued
The following continues from the History of Daviess (sic) County, Kentucky:
“One of the most remarkable events of Smothers' life was
his arraignment at Hartford
on the charge of murder. He was defended by the celebrated Jo Daveiss. The
circumstance was as follows: One summer evening a keel boat made fast at the
landing at Yellow Banks, and the crew paid a visit to the house of Smothers. A
man named Norris led the crew. He was of Herculean proportion, and it was the
common boast that he had never met his match in a fisticuff from Louisville to New
Orleans. While in the house the boat men indulged
themselves in such freedom of remark that Miss Molly, Smothers' sister,
concluded she could not remain with propriety, and ran to the house of Felty
Husk. Smothers remonstrated at their behaviour, and six of the number left the
house. Norris remained. The crew on returning found the lifeless body of their
comrade extended on the floor with the warm blood trickling from two ghastly
wounds. Smothers at their approach had fled the house and concealed himself in
a strawberry bed in the garden. He escaped from here to the woods where he s t
the night. At daylight next morning he knocked at the door of Ben Duncan, Esq.,
who lived on Pop Creek, ten miles from the Yellow Banks. He informed Squire
Duncan of the nature of the charges against him, and demanded a judicial
investigation. The crew of the boat were summoned as witnesses. They came in a body
to the house of the Justice, many of them armed, and declaring their intention
to hang the prisoner on the spot. But the friends of Smothers were there
prepared to defend him and the day passed without serious disturbance. Smothers
gave bond and security for his appearance on the first day of the next term of the
Ohio Circuit Court. He was perplexed in mind upon the subject of employing good
counsel in his defense. He was poor, and lawyers' fees were high. His anxieties
about the matter were, however, happily relieved, for Jo Daveiss, who knew Smothers
well and admired him for his independent spirit and indomitable courage, sent
him a message from Frankfort:
“Don’t ruin yourself hiring lawyers; I will be with you on the day of
trial." The fame of Jo Daveiss and the-widespread acquaintance of the
deceased, brought such a concourse of people together at court on the day of
trial, as had never before been seen in Hartford.
The keel boatmen from Louisville
were there, and strangers from a circuit of a hundred miles were in attendance,
curious to see Bill Smothers and anxious to hear Jo Daviess. In due course the
case of the Commonwealth versus William
Smother, alias Bill Smothers, was called. Judge Brodnax occupied the bench.
John Daveiss, the brother of Jo Daveiss, was the prosecuting attorney.
The evidence in the main was in accordance with the facts
already stated.
From the historic interest
to the people of Daviess County connected with the names both of defendant and
his counsel, we make room for a traditional report of the further proceedings
in the case from the pen of the Hon. Thomas C. McCreery: Jo Daveiss made no
labored effort at cross-examination, but permitted the witnesses to make their
statements in their own way, sometimes putting a single question, to elicit
explanation. When the Attorney announced that the testimony was closed on
behalf of the Commonwealth, Jo Daviess exchanged a few words with Smothers and
then rose and said, that his client, from motives of delicacy, had positively
refused to introduce his sister, who was the only witness who could state
anything material to the defense—that the prosecuting attorney might proceed
with his argument to the jury. By the feeling manner in which he made this simple
statement, he seemed already to have gained the vantage ground. But John
Daveiss was a man of no ordinary ability, and knowing that he had to cope with
one of the greatest advocates in the country, or the world, he put forth his
full strength in his opening speech, endeavoring to forestall the impression
which had always attended the powerful efforts of his brother. The evidence was
arrayed in a masterly manner, and he closed by a spirited and strong appeal to
the jury to discharge their sworn duties honestly and faithfully, exhorting
them to disregard alike the fame and the passion of the orator who was to
follow him, and assuring them that whilst the wicked might rejoice at acquittal,
all good men would say amen to the condemnation and the execution of a
marauder, an outlaw, an assassin and a murderer.
That wonderfully eloquent and strangely eccentric man, Jo
Daviess, then rose to address the jury. It was his ambition to do everything
after a fashion that nobody else in the world ever had attempted. He never was
known to ride to a court-house. but made his circuit on foot, whilst a negro
boy accompanied him on horse-back, carrying his papers and clothing in a pair
of saddlebags. His manner, his style, his tactics at the bar, were all his own,
and they all lie buried with their great master on the field of Tippecanoe. No fragment of a speech of his remains today;
and from the erring and fading memories of men we derive our only ideas of that
inspiration which moved upon the feelings and swayed the passions, until he could
drive his triumphal car over any obstacle that might oppose his onward course.
Tradition furnishes a dim outline of his speech in defense of Smothers, which
was probably the greatest forensic effort of his life. It was made for a
friend, without hope of reward, and the whole power of mind, body and soul were
poured forth in his cause.
He commenced as if he had a fee to assist in the prosecution.
He reiterated the strong points in the Attorney's speech, and offered
additional arguments in favor of conviction. The friends of the accused began
to whisper that he was a snake in the grass, and that he had come to help his
brother, and the eyes of Smothers were raised in calm surprise to the face of
his counsel. But Daveiss went on, urging that an acquittal, under all the
circumstances, would be a monstrous outrage upon law and justice, and insisting
that the jury ought, without hesitation, to hang the criminal. Adopting all the
epithets which had been so liberaly bestowed, he called upon them to hang the marauder, hang the outlaw, hang the assassin,
hang the murderer. Proof or no proof,
let the hang-man proceed on his mission of strangulation. That such, in effect,
was the common reasoning of prosecuting attorneys, and he had been repeating in
substance what had fallen from the gentleman who preceded him, but the law was
established upon principles precisely of an opposite character. He dwelt upon
the tenderness and mercy of the law, and the safeguards it threw around the
life and liberty of the citizens. That malice - premeditated malice - was an
essential ingredient in making out a case of murder. That if the killing was in
sudden heat, it was manslaughter, and if the blow was given in self-defense, or
in defense of family and home, then it became a virtue, and was no crime at
all.
Without a note, he reviewed the evidence from beginning
to end. Calling the names of the witnesses as he went, and contended that the
Commonwealth had failed to prove that his client had slain the deceased. That
he was found dead in the house of the prisoner at the bar, but no man had seen
the prisoner inflict the wound. That (those) circumstances, however, conclusive they
might appear, were frequently deceptive. He read a case in the English Reports,
where an innocent man had been executed upon circumstantial evidence even stronger
than that before the jury, and took the position that the unscrupulous and
vindictive prosecutor was guilty of murder, and the twelve jurors were his
aiders and abettors because they did not require that positive and undeniable
proof which leaves no room for a reasonable doubt. That if, in truth, it was
the hand of Smothers that directed the blade, the facts in the case warranted
the conclusion that the other was the aggressor. That the prisoner was a man of
sense and a man of prudence, and never would have sought an encounter with a
giant, whose physical force was so great that be had never found an equal; and
who had a host of thirty comrades who would have rushed to his call and staked
their lives in the quarrel. That the deceased was the aggressor in the
beginning, and it was a fair inference that he so continued to the end. That
unbidden he had invaded the sacred precincts of the prisoner’s home, and in
return for civility and hospitality, had offered insult and injury. That his
foul false tongue had aim to fix the seal of infamy upon the spotless tablet of
a maiden sister’s fame. That when his companions, impelled by repentance and
remorse, had left the house like a fiend of darkness he lingered upon the spot.
That if Smothers bad slain him, he slew him in the holy cause of religion and
of virtue, and that the King bf Heaven had strengthened the arm that drove the
pointed steel to his heart.
He paid an eloquent and glowing tribute to the brave
pioneers who, by their toil and sweat and blood, had won the great valley of
the Mississippi
from the Indians, and consecrated it to agriculture, to commerce and to the
arts. That a golden crown had been tendered to Julius Cream for his victories
in Gaul, and for the addition of that province to the Roman Territory.
That these men had conquered an Empire thrice as great and thrice as fertile as
Gaul. and neither the charity, nor the bounty,
nor the justice of the Govern-ment, had ever induced it to bestow upon one of
them so much as an iron skillet. That a Representative of that Government was here
today, appealing to a jury of the country for the blood of one of the bravest,
because he had stood upon the threshold of his rude hut, which was his castle
in the eye of the law, and had defended his family against the licentious and
wanton insults of a blackguard and a ruffian. He said that if Smothers had to
die, it was meet and appropriate that he should die at Hartford. Hartford
had been the theatre of his valor, and Hartford
should be the scene of his execution. That he came with the party that erected
the first fortification; that his hand dug the ditch and planted the palisade;
and when the Indians besieged, and fired upon you from stump, bush and tree,
whose aim was deadliest and whose rifle ran clearest in your defense? And when
they were defeated and turned their backs in retreat, who was fleet-footed
enough to lead the van in the pursuit; who hovered around them like a destroying
spirit until he had dyed the waters of your rivers in their blood? Who trailed
them to their homes beyond the prairies and restored your stolen property
without ever receiving one cent in compensation? That whatever falsehoods may
have been invented and circulated against his client, the forked tongue of
slander itself had never charged that his soul had been stained by the sin of
avarice. That with ample opportunities of securing an immense landed estate,
there was not a foot upon earth that he could call his own. That whilst others
had enriched them selves by speculation, peculation, violence and fraud, the
poverty of Smothers was a vindication of the sterling integrity of the man.
In his charge to the jury, Judge Broadnax approved
himself the able lawyer and the upright man. Forgetting the many annoyances of
Smothers, he exhorted the jury to look in mercy upon the prisoner, and to give
him the full benefit of every reasonable doubt. The jury, after a retirement of
ten minutes, brought in a verdict of “Not Guilty.“
Smothers invited his counsel to go home with him, and
Daveiss accepted the invitation. He was so well pleased with the country around
Yellowbanks that he settled the place known as Cornland, now owned by James
Rudd., and planted the orchard which stands upon the slope of the hill. His
brother, John Daveiss, not long afterwards commenced opening the farm upon
which the Crutchers’ long resided and lived there for many years. Smothers not
long after emigrated to Texas,
where he ended his life.”
Source: “An Illustrated Historical Map of Daviess County, Kentucky,” published in 1876 by Leo McDonough & Co.
