Bill Smothers - Part II

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.