BIBB COUNTY GA Court Trial of Brinkley Bishop - Murder of Turner Smith File contributed for use in USGenWeb Archives by Paul Reeves RReeves204@aol.com http://files.usgwarchives.net/ga/bibb/court/bishop.txt August 7, 1996 FROM: Paul Reeves, son of Edith Bishop Reeves, who was the daughter of James Bishop, who was the son of Brinkley Bishop SUBJECT: Trial of Brinkley Bishop for the killing of Turner Smith, and subsequent conviction for murder. During my childhood while growing up in Fitzgerald, Georgia, I was told on more than one occasion that my great grandfather, Brinkley Bishop, had once killed a man in an argument, had been convicted of murder, sentenced to hang, and subsequently pardoned by the Governor of Georgia. Needless to say, this was a titillating ancestry for one who grew up in a family which discouraged violence, crime and argument, and which had such a strong foundation in religious beliefs. I resolved that I would one day try to uncover the facts of the case, as those who related this incident to me knew little of the details. Besides satisfying my natural curiousity, I also hoped that the court records would contain a unique time capsule of information about Brinkley Bishop's personal profile and history that would be invaluable to those of us who are interested in our family history. I found the first mention of the case in a bound volume of summaries of Georgia Supreme Court cases. While the summary was 9 or so pages long, it gave only the essential facts of the case and was mostly a lengthy dissertation about the legal aspects of whether the verdict should be sustained or overturned. I next contacted the Clerk of the Supreme Court of Georgia, who gave me information that would enable the Georgia Department of Archives to locate the case file for me. The location information proved to be erroneous, but with the assistance of archives personnel, I finally located the file after several trips. I had the file copied, and after a period of self-training in reading the unusual handwritten script and spelling of the mid 1800's, I transcribed the official record of the trial and the subsequent appeal, which are attached to this letter. The bulk of the file consisted of the court reporter's shorthand notes taken during the trial, which contained no new information of value, so I did not transcribe these. I have included only the final official record of the trial. A summary of the incident follows: Brinkley Bishop and a man named Turner Smith were in court in the Rutland's courthouse, on some sort of legal dispute. They argued forcefully during the hearing on the dispute, and during a break in the trial, met outside a tavern near the courthouse. There they resumed their argument, and Smith threatened Bishop with a stick and verbal abuse. Bishop pulled out a pistol and shot him. Smith died almost immediately, and Bishop ran. Several bystanders stopped Bishop and brought him back. Bishop had a fresh wound near his eye. It was unclear what caused the wound, or whether Bishop had sufficient cause to kill Turner. Bishop was subsequently indicted for murder, and the trial was held in the Bibb County Superior Court. The jury found him guilty of murder. The judge sentenced him to death by hanging. Bishop's attorneys asked for the conviction to be overturned and a new trial granted, based on a number of procedural errors which had occurred during the trial. The Supreme Court of Georgia in Decatur, Georgia granted a hearing, and ordered a new trial, and there the record ends. I have not traced the matter further. I do not know whether a subsequent trial was ever held, or whether the Governor pardoned him before or after the trial, or what occurred beyond this point. Family legend says that Bishop's wife gathered petitions throughout the county asking the Governor for a pardon, and took it to Milledgeville and presented it to him, and received a pardon. If so, the records of the pardon should be somewhere in the Governor's papers. If I ever find them, I will make them available to anyone who is interested. While the record of the trial was interesting to read, and gave substance to the family legend, it was devoid of personal information about Brinkley. Oddly, it draws a very detailed picture of Turner Smith, the man he killed. After reading the transcript, you feel like you know Smith and his temperament very well indeed, and even details about his physical appearance. It even tells about places he lived and other details which would no doubt be of great interest to descendants of Turner Smith (if he lived long enough to have any!). This is where the story ends, so far as I've traced it. If anyone has information beyond what is contained herein, I would appreciate hearing from you. I am also interested in any other genealogical work which may have been done on the Bishop family. I have some historical information from Dorothy Reeves and Eva Bishop, which has been invaluable to me, but much remains to be told, particularly in the way of personal information about our ancestors, which is the most interesting thing to me. his Paul Reeves mark INDEX COURT RECORDS RELATING TO TRIAL OF BRINKLEY BISHOP FOR MURDER Page Sequence Description Remarks in original of Concerning archive file Document(s) Documents (as numbered (by Paul Reeves0 by Paul Reeves) 1-4 Writ of Error 2/27/1850 to Un-interesting State of Georgia requesting forms setting a hearing on 2nd Monday of up the hearing August,1850 to hear a motion for a new trial. for a new trial for Brinkley Followed convic- Bishop at the Supreme Court tion for murder. in Decatur, Ga. 5-13 Court reporter's shorthand Hard to read, due notes of the Supreme Court's to use of short- hearing on the Writ of Error hand & bleed-thru described above. from writing on back of document. Contains no new information. 14 Grand Jury Indictment of Transcribed by Brinkley Bishop and Thomas Paul Reeves for Smith for Murder of Turner ease & clarity Smith. of reading. 16 Verdict of Court ordering Transcribed by the execution of Brinkley Paul Reeves for Bishop for the crime of ease & clarity Murder. of reading. 17-24 Testimony given during trial Transcribed by of Brinkley Bishop & Thomas Paul Reeves for Smith. ease & clarity of reading. 25-29 Outline of reasons for new Transcribed by trial & transcript of test- Paul Reeves for imony before Supreme Court ease & clarity of Ga. at the hearing. of reading. 30 Clerk of Bibb Superior Transcribed by Court's certification that Paul Reeves for various documents are the ease & clarity originals and are properly of reading executed and that Brinkley Bishop is in a state of poverty & is unable to pay bond and costs. 31-34 Court reporter's notes of Not transcribed, plea by Brinkley Bishop for as essential info a delay of trial due to in- is contained in adequate time for preparation pgs 25-29. & public bias against him. Plea denied by Judge. Also contains original of jury's verdict, containing jury foreman's signature. 35-83 Court reporter's original notes No new infor- during trial and during various mation, and motions. is difficult to read. TRANSCRIPTION FOLLOWS: ***pgs 1-13 not transcribed*** GRAND JURY INDICTMENT GEORGIA, BIBB COUNTY pg 14 of 83 The Grand Jurors sworn, chosen and selected for the county of Bibb, to wit, Charles Collins, Greenville Wood, Reuben Williams, Treat Hines, John C. Johnson, Asher Ayres, James Campbell, John Springer, George Vigal, William O. Hunt, William ------, Richard A. Cain, Peter M. Cerny, James W. Knott, Erastus Kirtland(?), William Belden, Solomon R. Johnson, Andrew -----, Allen R. Stevens. In the name and behalf of the citizens of Georgia charge and accuse Brinkley Bishop and Thomas H. Smith of the County and State aforesaid with the offence of Murder. For that the said Brinkley Bishop on the Eighth day of December in the year of our Lord Eighteen hundred and forty nine in said County with force and arms in and upon one Turner Smith in the peace of God and said State then and there being, did wilfully, unlawfully, feloniously and of his malice aforethought make an assault, and that the said Brinkley Bishop a certain pistol then and there loaded and charged with gun powder and one leaden bullet (which pistol he the said Brinkley Bishop in his right hand then and there had and held), to against and upon the said Turner Smith, then and there feloniously, wilfully and unlawfully and of his malice aforethought did shoot & discharge and that the said Brinkley Bishop with the leaden bullet aforesaid out of the pistol aforesaid then and there by force of the said Gunpowder shot and sent forth as aforesaid, the said Turner Smith in and upon the right breast of him the said Turner Smith, a little below the right pap of him the said Turner Smith, then and there wilfully, unlawfully, feloniously and of his malice aforethought did Strike, penetrate and wound, then and there wilfully, unlawfully, feloniously and of his malice aforethought giving to the said Turner Smith with the leaden bullet aforesaid so as aforesaid Shot and discharged out of the pistol aforesaid by the said Brinkley Bishop in and upon the said right breast of him the said Turner Smith a little below the right pap of him the said Turner Smith one mortal wound of the breadth then and there of two inches and of the depth then and there of three inches: of which said mortal wound the said Turner Smith on the day and year aforesaid in said County instantly died. And so the Jurors aforesaid upon their oaths aforesaid do say that the said Brinkley Bishop the said Turner Smith in manner and form aforesaid, feloniously, wilfully and of his malice aforethought then and there did Kill and murder. And the jurors aforesaid upon their oaths aforesaid do further say that the said Thomas H. Smith with force and arms on the day and year aforesaid in the County aforesaid was wilfully, unlawfully, feloniously and of his malice aforethought present then and there wilfully unlawfully feloniously and of his malice aforethought aiding, assisting and abetting the said Brinkley Bishop the said murder then and there wilfully unlawfully and of his malice aforethought to do and commit. Contrary to the laws of pg 14 of 83 (continued) said State, the good order, peace and dignity thereof. Bibb Superior court January term 1850 Solomon Johnson R. W. McGuire (?) Prosecutor Sol Genl. Witnesses Solomon R. Johnson, (bottom of page didn't print - probably one or more additional witnesses named) VERDICT OF THE SUPERIOR COURT pg 15 of 83 The State vs Murder. Brinkley Bishop & True Bill Thomas H. Smith Charles Collins, ---- The State vs Murder Brinkly Bishop & A copy of the within indictment and a list of the witnessses who gave testimony Thomas H. Smith before the Grand Jury waived before arraign- ment. Wm K. deGraffaneid (?) Dept Atty (?) Stubbs & Lester, Dept Attys(?) The defendant Brinkley Bishop arraigned and pleads not guilty. R. W. McGuire, Sol Genl. The defendant Thomsa H. Smith arraigned and pleads not guilty. R. W. McGuire Sol Genl. The State vs Murder Brinkley Bishop & Thomas H. Smith Jury Sworn 1. Jefferson I. Tankersly 5. John McDonald 2. Flect(?) Hall 6. Jarrett Bird 3. George R. Barker 7. Wyatt Johnson 4. George F. McDermot 8. David Smith 9. Frederick W. Dixon 10. Hiram Richardson 11. Richard B. Lynn 12. Madison Malsby We the Jury find the prisoner Brinkley Bishop guilty of Murder and recommend him to the mercy of the court. G. R. Barker, Foreman The State vs Indictment for murder in Bibb Superior Brinkley Bishop & Court, and verdict of guilty as to Thomas H. Smith Brinkley Bishop Whereupon it is ordered, considered and adjudged by the Court that you the said Brinkley Bishop be taken from the bar of the Court and confined in the common jail of the County of Bibb untill the 29th day of March next, and that on the said twenty ninth day of March next you be taken from said jail by the Sheriff of said County or his Deputy to a place of Execution in said County, and that between the hours of ten O'clock in the forenoon and three O'clock in the afternoon of that day, you be by the said Sheriff or his deputy hung until your body be dead. This 2nd day of February 1850. TRANSCRIPT OF TRIAL FOR MURDER BY THE SUPERIOR COURT OF BIBB COUNTY, GEORGIA pg 16 of 83 The State vs Murder Brinkley Bishop Testimony for the State Allen Johnson. Was not present at the Justices Court - was travelling the road and and came up against the house - Mr. Turner Smith and Prisoner were around the table and appeared about to drink some liquor - the table was out of doors. They commenced quarreling. Mr. Bishop put his hand to his bosom - the deceased caught hold of prisoner and raised his Stick - as he raised the stick Smith said to prisoner "if you draw it I'll knock your d--d head off." Smith repeated it several times. Bassett got between them at this time and pushed Smith & Bishop apart. They were turning about and Mr. Bishop stepped out behind Bassett and drew the pistol out from his bosom. Bassett at that time having hold of Smith. Bassett was looking at Bishop, and said to him not to shoot, that Smith should not hurt him . At that time the pistol was fired. Witness did not see the pistol at the moment of firing. When the pistol fired Smith dropped at once. Witness was some 20 to 30 steps. Smith only drew one or two breaths after witness reached him. Almost at the same moment of the explosion of the pistol prisoner ran away. Witness saw the wound received by Smith - it was upon the right breast, an inch from the centre - looked as if a common bullet had penetrated it. The occurence took place in Bibb County on Justices Court day, on the 2nd Saturday December 1849. Recognized the prisoner at bar as the man Brinkley Bishop. Witness was going from Macon home when the matter occurred. The dead was named Turner Smith. The deceased a very short time (word missing?). The court grounds was Rutlands. The parties, deceased and Bishop were some 6 or 7 feet apart at the time the pistol fired. Crossed: Witness had not been at the Court ground, did not see the parties when they went up to the table. Knows Turner Smith, but for 2 years this acquaintance has been limited. Smith was a stout and apparently Strong man - much stronger and more of a man than Bishop. Reexamined for State. Does not know that Smith had been sick before that time. Knows Bassett. He is when in health a very Strong man, and on that day the witness saw no signs of his being in bad health. Witness thinks that Bassett was nearly or quite as stout a man as Smith. Solomon Johnson. Was at the court ground on the day of the killing - a difficulty occurred in the court house between Turner Smith and the prisoner. The parties had a case in court. While Smith was addressing the Jury Bishop interrupted him two or three times. Bishop called Smith once a d--d liar. Smith observed to the court: "If the court don't stop that man I'll have it to do." The court did not offer to stop Bishop. The deceased then went on to the Jury - was interrupted by the prisoner who said "you know that's a lie." The court did not stop him. The deceased then remarked to Bishop (after getting the stick, the same now in court) "I've asked the court to stop you once before, now if you don't stop I shall knock you down on the floor with this stick." Bishop then stopped and the difficulty ceased. Witness saw the parties meet after court, between the court house and the grocery. Smith was going with several to the grocery. Smith met Bishop. Deceased met him and said something to Bishop in a good natured way. Thinks Smith said something about the case. After passing Smith, Bishop turned round and said to Smith "God damn you, don't you bother me no way - I'm fixed for you. Don't you bother me no more to day." Smith went on and made no reply. This took place an hour before the killing. Witness saw Bassett all that day - thinks Bassett could on that day have managed Smith in any way. Smith has been sick for some time - ever since the election in October - his eyes and face showed that he was in bad health - his complexion was yellow. Does not remember the day of the month, but it was the court day in December. Does not remember exactly what time elapsed between the quarrel in the court house and the killing; it was he supposed some two hours. Crossed: Heard Smith tell Bishop that he would knock his head off if he drew the pistol. Witness some two hundred yards off at that time - they were talking pretty loud. Did not see Smith have the stick over his head. Re-examined: The remark made by Smith as testified to in the cross examination was not more than a minute before the firing of the pistol. Jordan Brown. Saw the killing of Smith by Brinkley Bishop the prisoner at the bar - the instrument used was a pistol not quite so long in the barrell as that exhibited and fuller in the stock. Deceased lived not exceeding 2 or 3 minutes after the pistol fired. they were some 8 feet apart - it was 2 or 3 o'clock in the evening. Prisoner drew the pistol with his left hand from under his waistcoat - when the pistol was drawn Smith was in a foot or two of Bassett to the right side. Smith jumped towards Bassett when Bishop drew the pistol. Bassett said Bishop not to shoot, that he should not be hurt. Smith went around Bassett, and as he come out from behind him on the left side Bishop fired the pistol. When the pistol fired prisoner ran. Does not know the day of the month, but the occurrence took place at Turner Browns, Rutlands district, Bibb County, on the second Saturday in December 1849. Smith was standing in some two foot of Bassett. Smith went around behind Bassett and as he came out on the other side the pistol fired. Bassett was between the deceased and Bishop at the time that deceased stepped behind Bassett. At the time that Smith stepped behind Bassett, Bassett spoke to Bishop. Bishop at that time lowered the muzzle of the pistol. As Bishop first drew the pistol Bassett was not between him and Smith, but as Smith stepped behind Bassett, the movement placed Mr. Bassett between them. As Smith came out on the left side the pistol fired. Bishop raised the muzzle of the pistol as Smith came out from behind Bassett. Crossed - Heard the quarrell at a distance but could not distinguish the words. Does not think on the trial before the magistrates that heard the parties quarrelling. (?) FOR THE DEFENCE Martha Brown. Saw Smith and Bishop quarrelling, was in her kitchen house when she she first heard it. The door was shut - witness rose and went to the door - she saw them quarrelling. Saw Mr. Smith catch Mr. Bishop by the breast of the shirt and shove him back and swore he would hit him & pg 18 of 83 raising his stick over his head. The stick was much such a one as that exhibited to the court. As he had the stick drawn up Smith would call Bishop a d--d black son of a bith. Mr. Bishop pushed Smith back and told him to let him alone that he didn't want to hurt him. Witness turned from the door - sat down and saw no more. Cross: This was but a few minutes before the pistol fired - was about as far from the witness stand to the steps of the fence in front of the court house. There were not many persons around - they were standing at the table where the liquor was sold. Mr. Bassett was there and she thinks Mr. Hartley - any others she does not recollect. Hezekiah McKinney. Is a relation of deceased. Father of witness and Smith's mother were brother and sister. The parties were not friendly - they did not at the time of Smith's death speak. Does not consider Smith was friendly to him at the time of his death - never attempted to take the life of Turner Smith - never snapped (?) a pistol or snapped (?) at him. By a violent man he means a man disposed to push upon another. Does not know what a rash (?) man means if it does not mean an overbearing one. Witness never attempted to use a pistol against deceased except in the necessary defence of his own person. John P. Lamar - Sworn for defence. I was acquainted with Turner Smith - have known him all the time for ten or twelve years - he allways took advantage in a fight when he could get it - he was a very violent man - he was very overbearing, very much so - he was my overseer for a year or two and I think I had opportunities of being well acquainted with his character in this respect. He was a man who would take advantage of his adversary in a contest, and was very quarrelsome. I mean by that he would like to get into a fuss. X I live in Houston and moved from Bibb five years ago - he lived on my plantation in 43 and 1844, in 1845 he lived with me. I was not on friendly terms with Smith. I am not very much interested in the result of this case. I have tried to employ counsel in this case. I never saw the prisoner before - if so, don't recollect him - only know him from character (?). I am no relation to prisoner. pg 19 of 83 Rebuttal: I have employed no counsel in this case. My bias against Smith would not influence my testimony under oath. Sur. (?) Rebuttal: The reason I have not employed counsel is we could not agree on the fee. Richard Bassett, Sworn: I was in Rutlands district on the 8th December. I saw the two brothers Turner Smith and Tom Smith were much excited. Turner Smith the worst. I asked Turner to go with me in Brown's back room, and told him Turner - you know I am your friend, and we have allways been friends - you seem to be greatly excited and I am fearful there will be some difficulty between you and your brother, and I want you for my sake, we being friendly, to have no fuss or difficulty today. I want for God's sake and for your families to have no fuss to day - nothing than do it, would prefer that you get your horse and go home. He said he had never been run from no place and never expected to be. I told him don't apprehend (?) any difficulty except you and your brother, and he knows you are afraid of no man. I want you to have no fuss - he said I don't want any fuss or won't have none. I said you give me your word as a gentleman, you won't have none - he said I won't have any. We left the room. We went out - the table was setting not far from the piaza. I and Smith went out together. Turner Smith said if Mr. Arnett (?) came around he would knock his head off with a stick - he (Smith) said that Arnett has imposed on McCollum. Turner appeared very much enraged against Tom Smith - Tom seemed to avoid him - didn't seem to want to have any fuss with him. What I mean by seem is, if any body makes an attack on me, I try to get away from him. Some aged gentleman said boys I know your parents, they were good old people and I saw them buried - with that Tom Smith commenced crying, turned off and went away. I called him three times and followed him to the fence and came back. I then came back, and Turner Smith was on one side of the table. Bishop was coming up on the other, or had just come up, and said boys let us take something to drink. I caught hold of Turner and pulled him and said come here Turner, and turned off, and thought he would follow me. Turner commenced cursing Bishop at the table and said you are a God damned little deceptive son of a bitch, or rascal one or the other - he cursed him so much, it is useless to name it. Turner was greatly enraged. I then had been very sick; caught hold of Turner and thought I could govern him, if any one could. He tore off my cloak and I then let him loose. Mr. Hartley, or some one then took hold of him. He told them to clear the way, he would not be bothered with any one, he would knock any one down who got in his way, and get out of his way God damn them. Bishop put his hand to his side like he was going to get his pistol. Turner Smith took his stick by the small end, put his hand not far from Bishop's throat on his left shoulder, and told him if you pull out your pistol you damn black son of a bitch I will knock your black head off, and shook the stick over Bishop's head and the side of his face ten or fifteen times. Smith said you damned black son of a bitch you brought a pistol here to day to shoot me. Bishop said I didn't pg 20 of 83 bring no pistol here Turn, or Turner, to shoot you, go away and let me alone. I then interposed and separated Smith and Bishop from each other. Bishop made right around and went between the table and piaza, and got off I think 20, 20 or 30 feet from where they were parted, near the piaza. I don't know exactly - as soon as I saw him draw his pistol (20, 20 or 30 feet off), I made toward them as soon as I could. I was nearer to him, he drew his pistol, dropped the muzzle in his hand and cocked it, witness still making to Bishop. My back was towards Turner. Bishop then raised the pistol up. I was not more than four feet from Bishop. Smith was behind me. I had not seen him - when I looked back Smith, when he fell were not more than two feet from where I stood. I was going angling towards the prisoner. Smith must have been rather to my left. Smith or someone else took hold of me to pull me in the way, or out of the way - cannot say which - it must have been Smith - when he fell there was no one else near enough to me. When Bishop went off, he went pretty rapidly. Smith must have advanced as fast again as I did to have been where he was when the pistol fired. He must have done so, because I was about half way between where Smith was and where Bishop had stopped when he drew the pistol. Smith was very much of a man, a very severe man when excited. I was in ill health . Smith was as much of a man as any in the county. Bishop told Smith he did not wish to have any fuss with Smith - said they had made friends. When Smith fell, his hat was on, his stick in his left hand and his arm extended. I don't know whether Smith was left handed. When Bishop drew his pistol and cocked it, he stood still and did not advance on Smith. Cross Examination: It (I?) was between the gate and the table when Smith took hold of Bishop - the table was about 20 feet from the piaza door. I don't recollect whether I stated on the former examination this distance to be 10 or 12 feet. When Smith had Bishop by the shoulder I was about 10 or 12 feet off. I was half way between the place where the parties stood when Smith had Bishop by the shoulder and where Bishop stopped where he cocked the pistol and pulled it out. when Bishop cocked the pistol he held it up to his eye like he was taking aim. I told him not to shoot, no one should hurt him - there were about ten or fiteen people present, the balance were down where they held court. The only man I saw drunk was Arnett. Smith's body was between 10 or 20 feet from the table when he fell. Asa W. Kinney Sworn: I was well acquainted with Turner Smith - he was very quarrelsome. I think he was a man who would take advantage of his adversary in a quarrel - he was very overbearing. I don't think he was a lover of peace. X I was not on friendly terms with Turner Smith. We had not spoken for 12 months. I pass for the son of Hezekiah McKinney. I was not present at the difficult. I had no business there, and was not in the settlement. I don't recollect of having told Absalom Jordan or anyone else at Jordan's house that the reason I did not go to the court ground on that day was because pg 21 of 83 the prisoner at the bar intended to have a difficulty with Turner Smith, or had made threats against him; nor that I was said then and there, that another reason why I did not go to the court ground was because my father had said Tom Smith and Bishop intended to have a difficulty with Turner. If I ever did, I don't recollect the conversation. I think I was at Jordan's the night of the day Turner was killed. If I told Jordan there, I was not surprised because I knew his life had been threatened. I don't recollect it. Wilson C. Hardy, Sworn. I was acquainted with Turner Smith - he was considered a quarrelsome man in the neighbourhood where he lived. He was considered a man who would take advantage of his fellow citizens. Robert B. Washington: I have understood Turner Smith was generally troublesome and quarrelsome. Rebuttal: Solomon R. Johnson re-introduced. The body of Turner Smith after he was shot was not more that 8 or 10 feet from the table - his head towards the table, his feet opposite the piaza and about 12 feet from the door. the diagram submitted by witness is a correct one. When I got in where Smith was, there were not more than four or five persons present. I have known Turner Smith for 20 years. he was called a clever man and good neighbour - I don't think he was considered rash or bloody minded unless he was imposed on. I never heard he would lie in wait or take advantage of his adversary till I heard it in court - his character was not to get into quarrels with men - when he got into one, he was apt to stay there till it was settled. On the day Smith was killed, I think Bassett had taken nine (?) drinks or more, he was pretty drinkey (?). I was not present when Smith was shot down. I got to where he was in not more thatn a minute after the pistol fired. X I don't think Mr. Bassett testified correctly as to distances - I think he was mistaken. I had not drank much - it did not effet me. I am the prosecutor and assisted the prosecution in striking the Jury. Diagram submitted in evidence (Note: This diagram was not in the archive file of this case) The following part of Rich. Bassett's testimony before the committing magistrates introduced in evidence. "The table was ten or twelve (10 or 12) feet from the piaza door." Jordan Brown recalled: At the time the shooting took place, there were 4 or 5 in the yard viz. Hartley, Rich. Bassett, Prisoner, Witnesss and Jos. Ford and Harry Avant & Turner Smith - there may have been more, but I don't recollect. Prisoner was between 15 or 20 feet from the table when he drew the pistol. I saw Richard Bassett there - he was a little in liquor, I should call him pretty tight, I don't think Sol. R. Johnson was. I have known Turner Smith 4 or 5 years, he was not overbearing unless urged into difficulties, as far as I know, and then was apt to see himself righted (?) and would not be imposed upon. X I take a horn sometimes, had not taken any that day. Allen Johnson, recalled: I was in the road looking on when the difficulty took place - Saw Smith take hold of Bishop. When they were separated Bishop did not go more than 6 or 8 feet and pulled out his pistol pg 22 of 83 just stepped around Mr. Bassett and wheeled and pulled out his pistol. I had not drank anything that day. Bishop drew his pistol as he was going around Bassett. By the State - Wednesday morning 30th Jany: Frederick Hartley: Saw Smith when he took hold of Bishop. Witness took hold of both of them - took Smith by the arm which held Bishop - Bishop put his hand into his bosom as if to draw a pistol. Smith took hold of Bishop by the collar of the coat, and said if you draw that pistol, I'll knock your head off. Smith took hold of the small end of the stick. Defendant said "let me go Turner." Witness prevailed with Smith to let him loose. Smith held the stick in a striking position and waived it, but not over or near the head of prisoner - not in two feet. witness caught Smith by the arm, placed his hand on Bishop and commanded the peace - told them to stop it. Smith let Bishop go. Bishop retained his hand in his bosom. Bishop jumped off twelve or fifteen feet - something about fifteen feet more or less - jumped around Bassett - turned facing Smith, Bassett and witness, with the pistol in his hand. The pistol fired almost instantaneously. If Smith had been advancing toward prisoner, he would not have gone in the direction he did. Bassett, deceased, and prisoner were all in the view of witness. As prisoner jumped off, Bassett turned toward the prisoner. Smith jumped behind Bassett, but rather beyond him. Smith may have been nearer to the prisoner, than when he let him go, but not in the direction he would have gone if he had been advancing towards prisoner. Smith was angling from the prisoner. Bishop was standing by the corner of the piazza. If Smith had advanced upon him, he would have gone towards the piazza. Instead of that, he went from the piazza, but still nearer him (the diagram ---- him). The lines made upon the diagram description of the course the different parties took in the progress of the matter, are correct. Witness states in explanation that the course Smith took brought him nearer to the prisoner, but if he(Smith), had continued his course, it would have caused him beyond and further from him. Joseph Ford: Saw the killing of Smith. Did not see Smith have prisoner by the breast. The first witness saw of the difficulty, witness came through the gate into to yard. Mr. Bishop walked around the table, Bassett following him. The deceased was angling from the prisoner, and the course was upon, if pursued, would not have carrried him up to prisoner. There was drinking there. Bassett was tolerably tight on that day. He means tolerably drunk. Cross: Witness had taken one or two drinks. Re-examined: Was not drunk, or tight either. Willoughby Jones: Was acquainted with Turner Smith. Knew nothing against his character for peacefulness - never saw him in any affray, or any thing of the sort. Knew him for fifteen years. Crossed: Lives in Bibb County, some ten miles from him Did not know the character of Smith for peace when he lived in Jasper. Re Examined: When deceased overseed for Turner on the Ocmulgee, witness lived within four miles of deceased. pg 23 of 83 John Bailey: Known Turner Smith for 20 years or more. He was a spirited man, and would not be imposed upon, but if he was blood thirsty or quarrelsome witness does not know it. Never knew him to have any difficulty excepting that with the River's in Jasper. Lived part of the time 3 and part of the time 8 or 10 miles apart. Crossed: Has heard of Smith's quarrel with the McKinneys, and that both of them carried guns. H. G. Ross: Has known Turner Smith a great while. Never heard that he was quarrelsome. Did not live in his immediate neighbourhood. Has heard of his difficulty with the McKinneys and of Cross Indictments. But heard that he had a difficulty with the Rivers in Jasper, but knew nothing of the particulars. FOR THE DEFENCE Thos. Bagby: Am well acquainted with Bassett - saw him on the day of the difficulty. Left there just before the difficulty. He was not drunk. Crossed: It was two o'clock when witness left. Heard the noise at Mr. Brown's. Heard a pistol fire and a noise when he got 1/4 mile from Brown's. Geo. Moore: Was present on the day of the difficulty. Bassett was sober when witness saw him. Crossed: Witness was 130 yards from the place of the difficulty. Saw Bassett take some one or two drinks. The bottle was full when witness went back to the table - when witness left the table. Re Examined: Witness was standing with Sol. Johnson at the time the pistol fired. R. Bassett: The table sat 3 or 4 feet from the corner of the piazza. The last time Smith took hold of Bishop and they were separated, Bishop went between the piazza and table and stopped some 20 or 30 feet from where he started. The diagram exhibited to witness is not correct (witness marked on the diagram the place where Bishop stood). The diagram is incorrect in this, that the table is placed in the opposition to the piazza. It should have been placed at the edge of the piazza at the distace of 3 or 4 feet. Witness states that the diagram was incorrect in other particulars. Smith collared Bishop some 3 or 4 feet beyond the table, and towards the gate. The testimony of Bassett before the Committing magistrates considered in evidence (withdrawn) Hartley recalled (for the State): Saw the parties together once just before the shooting. One was standing at one corner of the table, the others at the other. They were at the table, but the table was not between them entirely. Closed Allen R. Johnson reintroduced for defence: The omission would be that at the time Smith took Bishop by the collar or shoulder as I stated in my direct examination, I being twenty or thirty yards off - when they were separated, Mr. Bassett still kept hold of Smith, and Smith kept his stick raised, and Smith as he passed Bassett, struck towards Bishop, but whether hit him or not pg 24 of 83 I did not see as Bassett and some others were between me and Bishop. Smith was going past Bassett when he struck at Bishop. As the stick went over, Smith dodged back behind Bassett, and as he dodged back the pistol fired. When Bishop was arrested and brought back, he was bleeding from a fresh wound on the head, but whether produced by a blow from the stick of Smith I know not. The making of this correction of my former testimony originated with myself and not from any conversation I have had with any other person whatever or with either counsel. Crossed: I stayed in town last night - was in several houses during the night. What time I slept at old man Parker's in the edge of town. Previous to that time I was at Paton's(?) & got an oyster supper as the same others. I did not converse with any one last night about this case. This morning I went to Wiley Wagnon's stable where my horse was, then to a place where I bought a shad. Had the shad cooked at Hancock's - took 3 drinks this morning - drank last night. The persons I drank with this morning were Mr. Smith the bailiff, Wiley Wagnon and A.P. Powers. I drank last night 12 drinks. The day of the difficulty I got out of my waggon. It was after midnight when I went to bed last night, the exact hour I do not know. Got up this morning at day break. Did tell David Ralston that I did not get out of my wagon the day of the difficulty until the pistol fired, and that I then went to where Smith was lying. I do not remember how far exactly Bishop went after he and Smith were separated - some 8 or 10 feet. Had no conversation with R. Bassett, other than neighbours usually have when they meet. I started towards Mr. Stubbs this morning. met Mr. Stubbs on the way and we went to the Barbers shop. F. Hartley (for the State): The stick was in Smith's hand when he was shot - he held the stick by the smaller end; continued so to hold it from the time he took Bishop by the shirt - did not strike or attempt to strike so far as I saw. Was not in striking distance. I and Mr. Ford ran and caught prisoner - there was a cut on his face. I saw the pistol when it was fired. From the look of the wound, the rebound of the pistol, I think that the cut was caused by the recoil of the pistol. I asked the prisoner what caused the wound, being excited I don't remember his exact reply, but he intimated he didn't know. The pistol was held up to Bishop's eye. Jos. Ford: Saw the difficulty, was standing right by and looking on at the time the pistol fired. Smith did not strike Bishop. If he did I didn't see it. Saw Bishop when he ran around and did not see Bassett move towards him Bishop. Jordan Brown: Was in the yard a minute or two before the shooting took place. Smith did not strike Bishop so far as I saw - he was not in striking distance. After the parties were separated, if Bishop moved at all, it was very little. I think not at all. End - I found correct J. H. Stark - Judge Sup Court Flint District pg 25 of 83 The State Murder, in Bibb Superior Court, vs Verdict of Guilty, with a recommendation Brinkley Bishop to the mercy of the court. The Stste's Counsel will take ---- that defendant's Counsel will (?) on tomorrow morning or as soon as counsel can be heard, move the Court to set aside the verdict in said cause, and grant a new trial upon the following grounds to wit, 1st: Because Madison Malsby, one of the jurors who tried said cause, was biased and prejudiced against defendant, and so far prejudiced as to be unable to do justice to defendant, as shown by the affidavits of Henry Page and James Cooper hereto attached. Marked A & B. 2nd: Upon the the ground of newly discovered evidence as shown by affidavit of defendant hereto attached, marked C. The same being Amanda Brown. 3rd: Also the ground that one of the jurors who tried the cause was induced to agree to the verdict by the persuasion of his fellows and by misrepresenting to said juror the effect of the verdict rendered; he being assured by some of his fellows that a general verdict of "guilty with a recommendation to the mercy of the Court" that the effect of the verdict would be to authorise the Court to commute the punishment from death to imprisonment in the Penitentiary. For the truth of which see afficavit of David Smith, Junior - one of the jurors, hereto appended, marked D. 4th: Because the verdict of the Jury was not the deliberate judgment and opinion of 12 men as required by law. 5th: Because the Court refused to grant a continuance of his cause to the prisoner upon a showing made that the prisoner could not safely go to trial because such was the excitement in the public mind, and so excited is public feeling against him as he has been advised and believes, that he has reason to fear and does fear that he cannot obtain a fair trial. 6th: Because the Court committed error in refusing the counsel for prisoner the right to examine the juror when put upon ----. 7th: Because the court committed error in instructing the ----to ask juror the question, whether if he had formed an opinion, it could not be removed by testimony, or any other question. 8th: Because the Court allowed testimony to go to the jury in relation to the strength of Bassett in rebuttal of evidence going to show the manhood and strength of deceased. 9th: Because the Court refused to allow Counsel for prisoner to ask John P. Lamar, why he was unfriendly to deceased, after the State's Counsel had been permitted to ask him if he was unfriendly. 10th: Because the Court allowed a diagram to go in evidence to contradict the testimony of Bassett, which was not exhibited to Bassett. 11th: Because the evidence for the State, admitting the same to be true, does not show a higher crime committed by defendant than voluntary manslaughter. pg 26 of 83 12th: Because taking the whole testimoy together the defendant is not guilty of Murder. 13th: Because the Verdict is against Law. Powers & Whittle Stubbs & Lester W.K. DeGraffenied R.A. Smith I.I. Jones Depty. Attys. Georgia Bibb County Personally appeared before me Eliphalit E. Brown a Justice of the Peace in and for said county. Henry Page who on oath saith that he on last Saturday and before the trial of the case, the State vs Brinkley Bishop, Murder, in Bibb Superior Court, heard Madison Malsby, one of the jurors who tried said case, and before the jury was empanelled, say that if he Malsby was on the Jury, he be God damned if he did not hang them both (meaning Bishop and Thomas Smith) Subscribed and sworn to before me this 1st Feb 1850. E.E. Brown, J.P. Henry B. Page Georgia, Bibb County Personally appeared before me a Justice of the Peace in and for Bibb County and said county, James B. Cooper, who on oath saith that he heard Madison Malsby one of the jurors in the case, who tried the cause in the case of the State vs Brinkley Bishop & Thomas H. Smith, Murder in Bibb Superior Court, say on Saturday before he was empanelled to try said cause, that if he was on the jury he would hang Bishop, and that he would burn Smith, or words to that effect - this was in presence of Henry Page and one other person unknown to deponent...and I did not communicate this to prisoner or his Counsel until after the testimony was submitted to the jury. Subscribed and sworn to before me this 1st Feby 1850 E. E. Brown, J.P. Jas B. Cooper Georgia Bibb County Personally appeared before me a Justice of the Peace in and for said county, Brinkley Bishop who on oath says that the facts set forth and contained in the affidavits of James B. Cooper and Henry Page were entirely and utterly unknown to defendant until after the verdict was rendered in the case against me on a charge of murder in Bibb Superior Court - that he supposed said Juror unprejudiced and would give him a fair trial. Deponent for this swears that since said trial he has been informed and believes that one Mrs. Amanda Brown, a sister of Jordan Brown, one of the witnesses for the State, is an important witness for deponent, and was removed beyond the limits of the County of Bibb, and to the County of Washington to prevent deponent from getting the benefit of her testimony, and that said pg 27 of 83 Amanda Brown will swear that she saw the difficulty and saw deceased advancing towards deponent, and strike deponent with the stick before deponent fired the pistol. Deponent further swears that he has been confined in jail ever since his arrest, and although he was represented by counsel before the committing magistrates, yet he was informed by them that they would prosecute his case no further until some suitable provision was made for their fees, which from his poverty and continued confinement in jail he was unable to do, and the counsel did not consider themselves employed until after the commencement of the present term of this court. That since the trial he has been informed and believes that said Amanda Brown will swear to the facts above stated, and he has been informed and believes that she was removed to a place unknown to deponent to prevent deponent from getting the benefit of her testimony on the trial. Subscribed and sworn to before me this 1st Feby 1850 his Keelin Cook, J,J. C. Brinkley X Bishop mark Georgia Bibb County Personally appeared in open court David Smith, one of the jurors sworn and empanelled to try Brinkley Bishop who was charged with the crime of Murder, and verdict of guilty with recommendation to the mercy of the court, who being sworn says that he was induced to render said verdict under the idea and persuasion of his fellows that the effect of the recommendation would be to authorize the commutation of the sentence of death to imprisonment in the Penetentiary, that he believed the Prisoner was guilty under the law and testimony of Voluntary Manslaughter, and that he never would have agreed to said verdict unless he had thought that the punishment was imprisonment in the penetentiary. Sworn to and Subscribed Febry 2nd 1850 H. G. Ross David Smith, Jr. Georgia Bibb County Personally appeared in open Court David Smith who being duly sworn says that he was one of the jury which tried Brinkley Bishop and rendered a verdict of guilty of murder, with a recommendation of mercy to the court, and that he rendered that verdict and agreed to it with the distinct understanding that if the statements made to him by his fellow jurors in relation to the power of the court to commute the sentence from death to imprisonment proved to be erroneous that he should make it known and give the prisoner the advantage of it - and deponent further states that he proposed to his fellow jurors to send to his Honor the Judge for information upon the point in relation to the effect of the recommendation to the mercy of the court which was overruled by them. Sworn to and subscribed in open court Feby 2, 1850 H. G. Ross, Clk D. Smith, Jr. pg 28 of 83 The State vs Indictment of murder and verdict of guilty Brinkley Bishop in Bibb Superior Court Ga-Bibb County Before me Keelin Cook one of the Justices of the Superior Court in and from said county, Zachariah H. Holloman personally came, who on oath saith that on Saturday before the trial of the above cause, he heard Madison Malsby state in a conversation where deponent, Thomas Reynolds, James B. Cooper, one Page and one or two other prsons, unknown to deponent, that if he the said Malsby was on the jury he would hang one and burn the other, alluding to said Bishop and Smith. Subscribed & sworn to before me this Feby 3rd, 1850 Keelin Cook J.J.C. Zachariah Hollomon The State vs Indictment for murder, in Bibb Superior Court, verdict guilty and motion for new trial Brinkley Bishop Personally came into open court Madison Malsby the juror whose conduct has been assiled by the affidavits of James B. Cooper and Henry B. Page, who being duly sworn deposeth and saith that a portion of the conversation related in each and both of said afffidavits are untrue and false. Deponent further swears that in a conversation on Saturday previous to said trial with said Cooper, Page and a man by the name of Keel, he said that if such testimony was given before the court as he has heard could be brought in, he would stay there until hell freezed over, or hang them (meaning the said Brinkley Bishop and Thomas Smith). Deponent further swears that on the trial of said cause, he acted neither under bias nor prejudice, and was solely governed by the law and the testimony delivered on oath upon the trial before the court. Deponent further swears that he was put upon said jury without ever having been placed upon his voire dire, or question as to his competency as a juror either by the prisoner or the state. Deponent further swears, that in a conversation with James B. Cooper, in the presence of Francis Wells on Sunday last, he told Cooper that he was summoned, but did not want to serve on the jury, for if they (meaning the prosecution) made such proof as he understood they could make he would stay there until he rotted, or until hell burned down but he would hang them. Deponent further sewears, that in a conversation with Cooper last night concerning the affidavits which Cooper, as deponent understood, had made - he Cooper stated that he did not remember that deponent in the conversation refered to, said any thing about thing about the evidence, though he admitted he might have done so, but if he did, he Cooper, did not recollect it. Sworn to and subscribed in open court this 2nd February 1850 his H. G. Ross, Clerk Madison X Maulsby mark pg 29 of 83 The State vs Murder in Bibb Superior Court - verdict guilty, Brinkley Bishop and motion for a new trial Personally came in open Court Ardin Keel, who on oath says that he has heard the affidavits of James B. Cooper and Henry Page as taken in this case, read - that he was present on the occasion refered to by said Cooper and Page, and has no recollection of ever having heard any such conversation as that testified to by them. Sworn to and subscribed in open court February 2nd 1850 H. G. Ross, Clk his Ardin X Keel mark The State vs Murder, in Bibb Superior Court, Brinkley Bishop verdict guilty, and motion for new trial Personally came in open court Francis Wells, who on oath saith that he has heard the affidavits of Madison Maulsby read, and that he entirely coincides with said Maulsby in reference to the conversation with James B. Cooper on Sunday last, and that said conversation as testified to by said Maulsby is correct. Sworn to and subscribed in open court, 2nd Febry, 1850 H. G. Ross, Clk Francis Wells Georgia Bibb County Personally came before me Henry G. Ross, in open court Henry Page, who being duly sworn saith, that in relation to the conversation between Madison Malsby and Jamess B. Cooper and Ardin Keel, he heard all the conversation testified to by him in a former affidavit, but left the company before it was finished; and that Madison Maulsby might have qualified his remarks after he left. Sworn to and subscribed in open court, this Febry 2nd 1850 H. G. Ross Clk Henry Page pg 30 of 83 Georgia Bibb County I Henry G. Ross Clerk of the Superior Court of said county, certify the foregoing to be a true copy of the proceedings taken from the records and files of my office, has in the case wherein the State is plaintiff and Brinkley Bishop is defendant; also the enclosed Original Bill of Exceptions, Original Notice, Original Writ of Error, and Original Writ of Citation with entry of service therein, are the originals filed in my office; and that the plaintiff in error Brinkley Bishop has filed his affidavit in terms of the law stating that he is advised and believes that he has good grounds for a Writ of Error, and that from his poverty, he is unable to pay the costs and give bond and security as now required by law; and I further certify that the January term 1850 of the Superior Court of said County of Bibb, adjourned on the Second day of February, Eighteen hundred and fifty. Given under my hand and seal of office thi 5th day of March 1850 Henry G. Ross Clk. ***pgs 31-83 not transcribed*** PAUL REEVES MAY BE CONTACTED AT THE FOLLOWING ADDRESS AND TELEPHONE NUMBERS: Paul Reeves 710 Wagon Trail Woodstock, Georgia 30188 Telephone: 770-591-0163 Fax: 770-928-9120 ======================== USGENWEB NOTICE: In keeping with our policy of providing free information on the Internet, data may be freely used by non-commercial entities, as long as this message remains on all copied material. These electronic pages cannot be reproduced in any format for profit or other presentation. The submitter has given permission to the USGenWeb Archives to store the file permanently for FREE access. ==============