McMullen Co. TX - Indian Depredation Claim of William W. Talbert - 1791 ==================================================================== USGENWEB ARCHIVES NOTICE: In keeping with our policy of providing free information on the Internet, data may be used by non-commercial entities, as long as this message remains on all copied material. These electronic pages may NOT be reproduced in any format for profit or for presentation by other persons or organizations. Persons or organizations desiring to use this material for purposes other than stated above must obtain the written consent of the file contributor. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. This file was contributed for use in the USGenWeb Archives by: Melody Askins maskins@flash.net ==================================================================== Court of Claims of the United States Indian Depredation No. 1791 William W. Talbert v. the United States et al. Deposition of James Ervin, for claimant, taken at Tilden, Tex. on the 24th day of July, A. D. 1905. Claimants counsel, John W. Clark, Esq.; defendants counsel, S. H. Spooner, Esq. By the COMMISSIONER: Question. State your name, age, residence, and occupation; whether or not you are related to claimant, and whether or not you have any interest in this claim. Answer. James Ervin; age, 65; Tilden, McMullen County, Tex.; now a farmer; in early days a stockman; I am not related to claimant and have no interest in the claim. Direct examination by Mr. CLARK: Question. Were you acquainted with Mr. William W. Talbert and his horse stock in 1869 and 1870? Answer. Yes, sir; I was very well acquainted with his horses and Mr. Talbert also. Question. Do you know of any loss that he suffered by Indians? If so, state when it occurred and what he lost, and tell all about it in your own way. Answer. On the 26th of this month I disremember the year now-as I was coming to town the Indians drove the horses by me, and I was close enough to see that they were Indians; and then during the time that I was going back to Mrs. Weavers there was a big brown mare of Talberts with an arrow sticking in her loins. Question. How far from where you saw these horses that you saw this mare of Talberts? Answer. This mare as she passed me she was coming on the back trail and was about 200 yards from where I saw the horses as they were driven by the Indians. Question. How close were you to the horses that the Indians were driving? Answer. I dont think I was a bit over a 100 or 150 yards from them as the Indians passed me. Question. Were you close enough so you could see whose horses they were? Answer. I could tell that E6 and K brands 200 yards off. These were the Talbert brands. Question. Did you recognize any of Talberts horses? Answer. Yes, I recognized them. Question. I mean what kind of horses did you recognize, independent of their brands? Answer. There was the big gray stallion there that I knew, and a big sorrel stallion, and a big bay stallion, and a big brown stallion. Question. How many of Talberts horses were in that bunch? Answer. The biggest majority of those horses was Mr. W. Talberts. Question. How many were there in the entire bunch that passed you? Answer. From the size of the bunch it looked like there was 200 head. Question. What kind of horses were they saddle, stock, or mixed horses? Answer. They were mixed horses. Question. Did you recognize any of Talberts saddle horses in the bunch? Answer. I seen about four or five head of his saddle horses in the bunch. I will state that there was three of those horses came back. Question. You mean three of these saddle horses or three of the horses in the bunch? Answer. I was meaning three of those saddle horses. Question. How did they get them back? Answer. I suppose the Indians in driving them the probability is that they lost them. Question. Do you know whether any of the other animals came back? Answer. Well, I never heard Mr. Talbert say; only four of those mares came back and three saddle horses. Question. Then seven head in all came back? Answer. Yes, sir. Question. Did you ever see any of the other animals except these four mares and three saddle horses after they were taken? Answer. No; those four mares and three saddles was all that came back that the Indians lost. Question. Did you go on the trail after them? Answer. No, sir; I never followed the trail. Question. Do you know whether he got back any of his stallions? Answer. Nary a one. Question. Had you ever worked for Mr. Talbert before this time? Answer. Only just helping him to gather the horses. That is all. Question. Were you familiar with his horses? Answer. I was just as well posted in Talbert horse stock as he was. Question. Did you work with his horses after this loss, helping him gather them? Answer. Yes, sir; that coming fall he got me to help him to gather and brand up. Question. Do you know how many head Talbert lost at this time altogether? Answer. According to what Mr. Talbert says he claimed to have lost 150 of horses. Counsel for defendants moves to strike out all of the last answer of witness because it is hearsay. Question. Was this before or after the Stringfields were killed? Answer. That was the year before they were killed. Question. How did these Indians come to get as close to you as they did? Answer. I was coming to town, and I looked down the country and I saw a big dust, and I knew they were horses coming running, and the horses were so close to me, and the part of the ground that I had to ride across was prairie; and there was a big persimmon mott and I hid behind that, and I knew that was my only showing to make my escape, and right there I stood until those horses were drove by me; and I was positive they were Indians because I saw their arrows and their garb, and their hair was so long [measuring to elbow]. Question. How many Indians were there that you saw? Answer. When they passed me I counted 25 of them. Question. Did you make a report to Mr. Talbert as soon as you came to town? Answer. No; because Mr. Talbert had seen them himself. Question. How did you find that out? Answer. That night Mr. Talbert came to Mrs. Weavers ranch and told her about it. Counsel for defendants moves to strike out the last answer of witness as hearsay. Question. Were you present when he told Mrs. Weaver? Answer. Yes, sir; I was present. Question. Did Mr. Talbert ride the range after his own horses? Answer. He rode the range all the time after his own horses. Question. What kind of stallions were these that Talbert lost? Answer. They was pretty good half-breed horses; they wasnt anything extra. Question. How many hands high were they? Answer. They was long-legged horses and would average up to 15 and 14 hands high. Question. Was any of them 16 hands high? Answer. Some of them was. Question. Where was Mr. Talbert born? Answer. He was born in the State of Alabama, sohe told me. Cross-examination by Mr. SPOONER: Question. You are half negro and half Cherokee Indian, arent you? Answer. That is what I am. Question. This is the fourth or fifth case you have testified in for the plaintiffs to-day, isnt it? Answer. I think so. Question. You testified to the size of some horses and as to how many hands high they were. How many inches constitute a hand? Answer. Six inches is a hand. Question. So in estimating the height of these horses you did it on the basis of 6 inches to the hand, did you not? Answer. Yes, sir. Question. You say that you saw the Indians drive the plaintiffs horses by on the 26th of this month? This month is July. Now, dont you know that it wasnt the 26of of July that you saw those horses driven by, but that it was the 26th of some other month? Answer. No; I dont think I am that badly mistaken. Counsel for defendants now moves to strike out all of this witness testimony because it relates to a loss not covered by the petition, there being no allegation of a loss in the month of July. Counsel for claimant opposes the motion made by counsel for defense to strike out the evidence of this witness because the loss in not alleged in the petition on the ground that, although the witness does not state the month alleged in the petition, he does state the month prior thereto, and because the witness stated that this loss occurred in the year before the Stringfields were killed, thus placing this loss in the year 1869, the date in which it is alleged, and at least within one month of the time alleged in the petition; and the animals taken, and the number of horses taken, as well as the fact that there were several stallions taken, clearly fix this loss as the one alleged in the petition as having occurred in August 1869. Mr. SPOONER. The court will observe by the examination of this witnesss testimony and a comparison of it with the petition in this case these glaring discrepancies. This witness testifies that he saw four stallions of the plaintiff in the possession of these Indians, while the petition alleges the loss of but three; and testifies that the plaintiff told him or in his presence that he lost 150 of horses by the depredation, while the petition alleges the loss of but 113 in August, 1869, and but 36 in September, 1870, which includes the colts lost, as well as the horses. Mr. CLARK. The court will observe that this witness testified that more than half of the horses that he saw in possession of the Indians belonged to Mr. Talbert, and that there were about 200 head or over in possession of the Indians. His testimony, therefore, as to the numbers lost corroborates the allegation in the petition; and the witnesss statement as to what the plaintiff said in his presence was given by the plaintiff immediately after the loss and before he would have had time to ascertain the exact number lost. The best guide to the court was what this witness saw. The allegation in the petition being manifestly the number of horses all told that the claimant found that he actually lost after going over his horses carefully, and that is substantially corroborative of the statement of this witness. Question. You dont know whose mare this was that had the arrows in it. Answer. It was a mare of Mr. Talberts; it had his brand on it. Question. You were not a bit frightened when you saw these Indians? You were perfectly composed and occupied your time while hid in the brush or hid behind the persimmon trees, in taking an inventory of the stock that they had, did you not? Answer. Yes. Question. How close were you to this big sorrel stallion when you saw it in the possession of the Indians? Answer. That stallion passed as close to me as that house over there; that would be about 50 yards. Question. And the others, how far were they from you? Answer. I suppose they were all in the same bunch. Question. Do you know whether they were all in the same bunch or not? Answer. Those stallions were all in the same bunch, and this sorrel stallion was on the side next to me. Question. And you supposed the other stallions were in the bunch that the Indians had because they and the sorrel ran together? Answer. Yes, sir; they were all in the same bunch that the Indians were driving. Question. Who was with you when you saw these people that you took to be Indians and the horses that they had? Answer. There was no one with me at all; just me alone. Question. How do you know that it was the year before the Stringfields were killed that you saw these horses and Indians that you testified about? Might it not have been two years before or some time after the killing of these people? Answer. All I know that Stringfield was killed in 1870, and I am confident of that. Question. Then, if you are confident of that, why didnt you testify, if this loss occurred a year before, that it was in 1869? You know, do you not, that 1869 is the year immediately preceding or before 1870? Mr. CLARK. Question objected to because it is improper cross-examination. When I asked this witness in chief the question by which he fixed this date I asked him whether this loss occurred before or after Stringfield was killed and he most properly answered a year before. Had he stated the year 1869 his answer would not have been responsive to the question. Hence this question is very improper. Answer. Yes, sir. Question. What Indians were these that had Talberts horses? Answer. I called all those Kickapoos. Question. You were pretty familiar with Indians, being an old stockman down here, were you not? Answer. I dont know whether I was familiar with them or not. Question. You frequently saw Comanches, Lipans, and other Indians during your life as a stockman down in this section of the country? Answer. I am pretty well posted and pretty well acquainted with every tribe of Indians there is in the State. Question. Which direction did this trail go over which these people took the plaintiffs horses that you testified about? Answer. They went right up the Frio Creek, due west. Question. Now you say due west. Do you mean that the Indians who had the plaintiffs stock when you say you saw them were going due west with that stock? Answer. Yes, sir; that is the way they were traveling. Redirect examination by Mr. CLARK Question. You have testified heretofore to-day concerning Indians taking property, and you have stated in the Pearce case and the John R. Weaver case and in the Nancy C. Poteet case that the Comanches and Kickapoos took the property. In your understanding of it, did those two tribe depredate together? Mr. SPOONER. Objected to as improper, irrelevant, and not a proper re-direct examination. Counel for claimant states that counsel for defense made this witness his own witness as to what Indians committed the depredation, and it is proper for claimant to cross-examine the witness in that particular. Answer. Oh, yes. Question. Were the Comanches and Kickapoos depredating together at the time they took Mr. Talberts horses also? Mr. SPOONER. Objected to as incompetent. Answer. Yes, sir. Question. And your understanding of it is that the Kickapoos and Comanches were the Indians that took Mr. Talberts horses at the time you saw them at the persimmon mot? Mr. SPOONER. Objected to as incompetent, irrelevant, and because the witness has already expressly committed himself as to the Kickapoo Indians having committed this depredation. Answer. Yes, sir. Question. Did the Lipans often come in here? Mr. SPOONER. Objected to as irrelevant and incompetent. Answer. If any came in, he didnt know it.