Transcribed and submitted by Gladys M. Owens.

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Indictment for Murder

State of Tennessee vs Wm N. Berry

Be it remembered that this case come in to be tried before the Honorable Jas. R. Randolph Judge of the 2nd Judicial Circuit of Tennessee presiding at Morristown in the County of Hamblen in said District on the 24th December 1874 when the following proceedings were had. To wit the deft was arraigned the Indictment made and the deft pleas of Not guilty entered thereto.

When the State called Joseph Jenkins the prosecutor who testified as follows: I knew the deft knew his wife, she was missing from neighborhood on night of 11th Oct 1872, knew nothing of deft having been missing. Defts wife was at home on 10th Oct 1872 helping gather corn. Heard no more from her until Oct 28 or 29. Deft started to move at that date. Deft was brought back, body had been found, (and) his 3 daughters were with him, Sarah, Mary and Matilda. I as an Officer took them to place where the body was buried body was buried on hill side where tree had blown up, was covered up with dirt and stones, was in a putrefied condition, dark color, had no clothing on except a string around her neck and one around her leg, the strings were strips of shintray, strips were not tight dead same was sufficient to have killed her body was found 80 or 90 yards from where deft had lived 50 yards from where he had lived a place dug out in ground which looked like the body had lain there a day or two. A short distance from this place was another place slight hole in the ground looked like something had been dragged on the ground, as a hog saw no blood on this mark. There was a piece of old over coat thrown over the body. My best impression is that it was the body of defts wife. The hole had bee dug with a mattock, found mattock at the spring 30 yds off. Had a gap in it blade. The marks on the dirt corresponded with the gab. Had seen deft previously wearing garment over coat. On the day of inquest deft was asked whether or not the body was that of his wife, he replied that if it was he did not know her, but continued if it is her, I want her buried right. Joshua Berry a by stander and who is a witness in this case said you had better a buried her right when you killed her to which he made no reply. Deft by counsel objected to the last statement of the witness the objection was over ruled by the court, to which deft accepted. Witness on cross-examination is further stated.

I was not at deft Berry’s house from the 11th of said month to the 31st of 8th month. I did not know of my own knowledge of Wm Berry’s being about. I was at defts about the 8th or 10th of said month. Thos Berry, Sr. lived about 400 yards from deft. Mrs. Berry was at home when I was there. I saw deft Berry’s wagon passing towards the gap. His family was with the wagon. Thos Henderson went with them. I never saw Mrs. Berry pulling corn in my life. I do not know that she was missing from 11th to the 29th of Oct 1872. Mrs. Berry had black hair; she had an upper tooth out before. I saw the tooth out before. The corpse had a tooth out before the complexion was dark. The skin when the body was first taken up was white, turned dark when the air struck it. I didn’t examine the skull. I saw Dr. Phillips examine it. The skin was not broken. I saw it pressed upon there was a sink in the skull. The corpse was lying upon its side-in a crook, the rocks covered the body-rocks was 3 ½ feet long. The ground was rather sandy. I examined the soil and pit—the rock looked like a surface rocs. Joshua Berry was present when I made the examination. I saw the comparison between the mattock and the (this section is cut off) days after the inquest. The evidence that some one had lain in the first pit was that there was bloody water in the pit. The evidence that something had been drawn on the ground was that there were weeds and bushes over which it had been dragged. This occurrence created great excitement in the neighborhood. A great crowd was present when Joshua Berry made the above remark about defts killing his wife. The whole crowd was around deft when this was said. Joshua Berry was very much excited. There was a great deal of excitement towards defendant at the time the body was taken up. On examination there was no threat of putting in the defendant by the crowd.

Thomas Berry called by the state testified as follows: I live in Hawkins County 14th Civil District. I was somewhat acquainted with defendants wife. She lived on my land. The last time I seen her alive was on the 10th day of Oct. 1872. She was in a healthy state — on the morning of the 11th. I rose very early. I heard the screams of some person and I took it to be the screams of Mrs. Berry. They appeared to be the screams of someone in distress. I never asked deft anything about where his wife was. I am the reputed father of deft. My first wife was his mother. Deft went on from that time as usual gathering his corn. I saw deft and his family as the moved by my house. I do not know the state of feeling that existed between deft & his wife. His wife was not with him when he moved by my house. I heard him make no inquires after her from the 10 to the time he left. About 3 weeks after I heard the alarm at the house, my son and I got suspicious and made a search. Suspicion arose from Wm Berry’s absence. We were in a fenced in woodland near where deft had lived. My son commended raking the leaves like something had attracted his attention. Supposing that if she had been put away that that was the place we say fresh digging but found no body we made further search- but before making further search we called witness Jas. R. Henderson and James Mcferron who went at work nearby. After we all examined the first place we made further search found second place, scratched down but found no body. Commenced where we thought her head might be. We found a dead body. We thought it proper to have a coroner so we put some of the rock back on the body to keep anything from getting at it. There had been a tree blown up there some time ago. The body was covered with over coat. There was a little strip of cloth around her neck. The body was concealed by dirt and stones. It was neatly done and anyone might have passed over it a hundred times and not known it. The body was sound and firm. I knew it was her. The body was not much swollen. Not enough to keep from recognizing her features. Skull seems to be broken on top. I think the wound would produce death. It was about 60 yards from where we first discovered the digging to where we discovered the body. We saw slight indications of digging at the other place. We saw no trace or marks of dragging. I knew no particular marks about the body by which I recognized her except several features. She did not have upper front teeth, which could be seen. A lower tooth bent to the side it was still in the body. Deft had my mattock borrowed and has sent it home before he started to move. Don’t think deft had given [illegible] over coat. Never saw him have such cot it was only a [illegible].

Cross Examination — Deft came to my house in Jan and made two crops, he lived across Clinch before he came there. He had talked before of going to Texas. I never raised the deft. I never saw him from the time he was a boy until after the war. For some time before this occurred we did not go about on another. His wife had sauced me. The wife of deft and I didn’t have a violent quarrel a short time before this occurrence. I did not have much use for her any way. Deft and myself did not neighbor on the 10th of Oct 1872. Deft had sent my mattock back by two of his children. I’m very certain deft returned the mattock. If deft had on of his own I never knew it. The pit looked it was dug with a mattock. After Berry left-my son and I made search for the body, did not go to the house. The place we found was carefully covered up we had not been hunting long before we discovered the place. The pit we first found had no blood or bloody water in it nor any sign of body having been in either place we first discovered. Jas. Mcferron, witness, is my son in law. Mrs. Berry’s hair was brown. I never heard deft quarrel or fuss with wife at all. She would at times get mad and go off and stay for weeks. Deft preparations to leave were made in a public manner, sold off his property like other people. I don’t remember that I was about deft’s house after the 11th of Oct ‘1872 until the search. Berry the deft raised corn near my house.

The state then called Cleon Berry who said: I’m a son of Thos Berry, Sr. I do not know where Mrs. Berry disappeared on the last of Oct ’72. I went to fathers. Wm Berry the deft was preparing to move off to Texas. We set out to search for the dead and found her about 90 yards from defendants house. We found two other places where their seemed to be indications of burying. I can’t state certainly that the body we found was that of Mrs. Berry though I had every reason to believe that it was her. When we discovered the place we dug down to the body. I was not well enough acquainted with her to say whether it was her body or not. We noticed for traces from one pit to the other but saw none.

Cross Examination: It was the last of Oct. My father and I made the search. We commenced the search at the spring some 75 to 80 yards from the house. We went from the spring along down towards the house. I found the first place. It was noticeable from fresh dirt. I saw no traces toward this place. No bloody water or anything of the kind.. I don’t remember whether the said place was opened or not. When we opened the final place we called Jas. Henderson and Thos Henderson, Thos Henderson found place where body was. I saw no other wound except the one on her head. Dr. Phillips made the examination of the wounds.

Witness Jas. R. Henderson testified. I was one of the (this part cut off) found Berry’s wife. We found one place and scratched down and found nothing. We went on and I found one other place when I saw signs of a mattock and searched down and found her under a big rock. The rock was about as much as three of us could lift off. She looked as natural as ever until the air struck her. She turned dark. We lift her unmolested until the inquest. Her skull was broke. It was the body of Mrs. Berry to the best of my impression. I know no particular features by which to identify her. She had staid one night at my house. I never noticed any particular mark on the pit. When we first found the place it was covered up very closely. We saw where something had bee drag along from the fence to the first hole. No other signs. I never saw her after I saw her hoeing corn sometime in the summer. I hear her screaming on about the 11th of Oct 1872 till I heard deft say that she was very good and when she was in good humer [illegible] this was about a week before he went off but when she got mad she had the devil in her. After the 11th of Oct. he went to the mill for me and when he came back he said to me. I heard from my old woman today. He said just as I was getting on my horse a man came to me and said that my wife had sent word to me that she had gone back to her old home place and that I would come over there she would live with me, but that she wouldn’t come back here anymore. Deft said he sent her word that he had sowed wheat and that he couldn’t come, that he was going to stay where he was. I bought some cattle off deft and told him that if she was as devilish as he said she was perhaps he had better move the cattle out of his possession. Berry replied that there was no danger of her pestering them. Deft said that she knew where he was going and that she would fall in with him on the road or would fallow on after some where. From the house to the fence there was no sign but from the fence to the first place we found was signs of where she had been dragged.

Cross Examination: I made theses discovers about the 28th day of Oct. My son and I was up there. Old Thom Berry and Cleon Berry were there and called our attention to the matter. They, the Berrys, had scraped around to see if there was any place there before we came. I don’t recalled of finding but one place. I do not remember who all seen the sing. I remember of them talking about the sigh. We scrapped the pit and seen no sigh of blood any where in the pit. I did not see any sign above the place or anywhere about where the rock came from. I never knew of deft and his wife living disagreeably together. On the morning of 11th I thought it was her hollowing. I live one quarter of a mile from deft.

Witness: Jas McFerron — I was at old Thos Berry’s W.N. Berry, deft came near the house. Motioned me to come to him. Asked me if I had heard the fuss at his house morning before. Said that his wife that morning had got up hollering Oh Lord and went of that way. Said he guessed she had gone to stay as he took 3 suits of cloths with her. Said he didn’t know that there was anything the matter with her until this time. Sometime after that I was at deft’s he went (a) piece with me when I started away it was about dark told me he was afraid to leave home wife had gone to Clinch had threatened to get a craved (?) come back kill him and children and burn them up in his house. Children was afraid to stay that she was mean enough to kill me. Morning he left. He came to my house said he had heard from old woman. She had gone to Clinch that he wasn’t going so for but what he could come back going down on river some 10 to 12 miles urged me not to tell the old woman if she came back where he had gone he wanted her to whip her self and completed that time. I had been acquainted with wife about 2 years. On the day he left a search was made. I was working near they found the place and called me to them found one place no body there search again found a place and the body. I’m confident it was the wife of W. N. Berry. It looked to me that she had been struck with the pole of an ax or club. The body was very much swollen. The place we first found looked like some person had been dragged from the first place to the 2nd. I live on T. Berry Place

Cross Examination of McFerron: Berry was mad at me a short time before this occurrence. After that he came to me and had these confident conversations. I think he told me he was going to Texas. It was rumored he was going to Texas long before the 11th Oct. The main thing by which I identified the body was that she had her hair cut off. It was dark brown. The skin was not discolored. Dr. Phillips examined it. He is a practicing physician and lives on the river near the place where body was found. Old Man Berry and Cleon saw the marks I saw on the ground

Witness Matilda Smith testified deft is my father his wife is my mother. I’m 17 years old I was mostly raised on Clinch moved from there to Thos Berrys place father treated me better than she treated him. She frequently went off and stayed several days she would just get up and go off and stay. The last difficulty they had was about the first of Oct 1872 she had been away several days came home stayed 2 day went off and never came back any more. She went off in the night. I didn’t know when we started. We started off the last of Oct. It was about 3 weeks before we started. (written on the side) mother had awful temper [illegible] speak unkind to her but once or twice in my life

Cross Examination: We went to bed about 9 of the clock. I can’t remember who got up first we got up after daylight. It was before we moved off of Clinch that Pa gave her the short word. I have two older sisters. Sometime mother beat us well sometimes she beated us tolerably bad.

Witness Thos Henderson testified. I was acquainted with deft. I lived about 1/2 mile from deft. He said she was over on Clinch somewhere this 10th Oct 1872. I staid one night with deft shortly before he started to Texas. I don’t know that he said anything to me about his wife. He was talking something to my sister about being like his daughter had no mother.

Cross Examination of Thos Henderson. That I saw I understood that was said. This conversation was as he was going off. I don’t recollect when he said he was going.

Witness Joshua Berry: The cloth found over the woman I thought was a piece of over coat, which on examination proved to be something else. Hankerchief around her neck was not tight a string around each leg looked like a garter. I was pretty certain it was Wm Berry’s wife. I saw two other places dug besides where she was. There was a mattock brought there. I took two men and went to Old Man Berry’s & got the mattock took it the place compared the mattock with the impression in the ground and rocks it corresponded of mattock with impression in soil peculiar shape under stone rock. Deft was there when we took her up. Someone take her up out of there out of the pit. I [illegible] did her deft want her take her up. He said if it was his wife he wanted her taken up. I said he ought to have [illegible] his neighbors to have helped to put her away decently at first. He made no reply.

Cross Examination of Joshua Berry. I can’t say that deft heard me say what I did. There was a considerable crowd there good deal of excitement. I wasn’t moved chase any near would be under such circumstances. Have from the time we took up the corpse until after the 4th Monday in January that I made the comparison of the mattock with the impression. It had rained and frozen between the times. I made the comparison after the 4th Monday in January the leaves which had gathered in the bottom of the pit don’t think it had been frozen but I [illegible].

W. N. Charles — On the morning of the 11th I heard a hollering in direction of where deft lived up towards the mountain the screams were as that of one in distress they were pitiful. I lived 1-1/2 miles from deft. Mr. Baker and I went after deft caught him above Mossy Creek. I told him I was summoned to come after him. He wanted to know who got this thin up I told I wanted him to go back and see his wife taken up that she was murdered and buried. He said Lord I have not see her for 3 weeks this morning. He also said that he had seen a fellow up Kirkpatrick’s Mill who told him his wife was on Clinch. Didn’t find out who the man was. He said he was on his way to Texas.

Cross Examination of Charles. It was about 4 o’clock I heard the hollering. I can [illegible] the clock when I went in the house.

Samuel Bell — I was in charge of the Rogersville train. We went out there we discovered the first pit and just outside of the fence from the fence to the find was a trail also from the 2nd to the 3rd plain trail were we found there was nothing on her but an over coat cape. When shovel struck her face the skin and hair slipped off. In one of those other places pits it looked as though someone had laid about two days in it. I saw very distinctly where the body had been dragged over the fence & ground. I saw mud on the fence. I saw nothing but where the leaves had been dragged along. I saw no impress of a form in the 2nd pit. The body had been discovered two or 3 days before I went about the place large crowd there at this time.

T. W. Phillips — the first I knew was when Berry was brought back from Mossy Creek. I heard Berry deny the charge as of a struggle blood on the ground some sign near the house also the first place or pit also at the log continued on up to the ledge. I took the sign and walked along as I would a path my plain and bloody.

Cross Examination -— Phillips. It was two or three days after the corpse was found that I first went there same time Bell was there. I saw blood on the path or trail where the body had been dragged. There had been a crowd there before I saw the sign and was also at the time of same.

This was all the testimony.

Charge to Jury

The court charged the Jury as follows.

State vs Wm N. Berry: Murder

The defendant stand indicted for the alleged offence of murder. If any person of sound memory and discretion unlawfully kill any reasonable creature in being and under the peace of the state with malice aforethought either express or implied such person shall be guilty of murder. Every murder perpetrated by means of poison, lying in wait or by any other kind of willful deliberate, malicious and premeditated killing or committed in the perpetration of or attempt to perpetrate any arson, rape, robbing, burglary, or larceny is murder in the first degree. Homicide is divided into murder in the first degree. Murder in the second-degree manslaughter voluntary and manslaughter involuntary also excludible and justifiable homicide. Where the killing is not done in the commission of a felony, nor by poison, or lying in wait in order to constitute murder in the first degree, the killing must be done willfully that is of purpose, with the intent that the act by which the life a party is taken should have that effect deliberately that is with cool purpose; maliciously that is with malice aforethought and with premeditation that is a degree must be found to kill before the act by which the death it produced is performed. The few ingredients of willfulness, deliberation, malice and premeditation must concern in this case before the jury could find the deft guilty of murder in the first degree. Malice may exist but for a moment before the killing took place in order to convict the deft of murder in the first degree, there must appear in the proof before the jury a specific intent to take the life of the person said to have been killed. Where the killing is personal the law presumes malice to exist.

The state declares that all other kinds of murder shall be deemed murder in the second degree the fact of killing being proved, the law presumes the crime to be murder in the second degree. Malice aforethought is an essential element of murder in the second degree. Manslaughter is the unlawful killing of another without malice, either express or implied, which maybe either voluntary upon a sudden heat or involuntary, but in the commission of some unlawful act. If two persons upon a sudden quarrel fight and one kill the other the slayer is guilt of voluntary manslaughter. Involuntary manslaughter is where it plainly appears that neither death nor any bodily harm was intended, but death is accidentally caused by some unlawful act or a lawful act done in an unlawful manner. Malice express is where a person with a sedate and deliberate mind and formed design kills another. Malice implied maybe inferred from the deadly weapon used upon the occasion of killing. A party maybe justified in taking the life of another when it becomes absolutely necessary in ones own self defense. When one takes the life on another purely accidentally, such part would be excusable. The jurors are the exclusive judges of all the facts in circumstances in proof before you, both positive and circumstantial and from all they will determine the guilt of innocent of the prisoner at the bar. They are also the judges of the law. It is incumbent upon the officers of the state to satisfactorily establish the fact that a murder had been committed, at the time and under the circumstances expressed in ether bill of indictment and in manner and form as alleged. This is called in law the corpus delicti—The next inquiry for the jury to make is did the deft do the act of killing. If the jury shall be satisfied from the proof in the record that the killing was done, and that the deft did it then the jury will determine further whether it be murder in the first degree or murder in the second degree or whether it be manslaughter voluntary or manslaughter involuntary or justified homicide or excusable homicide and in order to determine either or all of these questions, the jury will look to the definition of law give heretofore in the charges and render a verdict accordingly from all the facts and circumstances in the record as before stated. The jury have the right to convict a deft on circumstantial testimony alone where it is plenary and satisfactory or they may find a deft guilt alone upon positive testimony where it is plenary and satisfactory but when both kinds of testimony exist in any law suit it is the duty of the jury to act upon both and render a verdict as based upon both. The testimony must satisfy the jury that a homicide has been committed in manner & form charged. The identity of the person said to been slain must also be satisfactorily established and the fact that the deft at bar is the person who committed the unlawful act or was accused before the fact to such crime must also be satisfactorily established. Confession or admissions of guilt by deft if made at all, must be shown to have been made freely and naturally before they can be taken as evidence against the deft. Such confessions, if any, must have been made freely and voluntarily and without any promises of favor or reward, or the act of violence, or demonstrations of violence by anyone by whom the deft may have been summoned. When confessions are made freely & naturally as explained, they become testimony against deft, but if made under promises of favor or hope of reward or in consequence of hostile demonstrations or threats?? of an excited crowd, then they are not to be taken as testimony against him. Casual conversations are regarded by the law as the weakest of all kinds of testimony, but they are generally made without the mind of speaker being directly called to the thing’s which he is speaking or conversing and heard they are liable to be misunderstood and …& the law doth not attach much importance to it. If, after the jury shall have weighed all the proof in the case, you come to the conclusion that the deft is guilt as charged in the indictment, you will so find and say in your verdict of what offense he is guilty. If the jury shall find deft guilty of murder they will say what degree it is, whether murder of the first or second degree. If you shall no find him guilty of either offence, but shall find him guilty of manslaughter you will say of what kind, whether voluntary or involuntary. In the event you find the deft guilty of murder in the 2d degree you will further find for what period of time he shall under go confinement in the penitentiary. A period of time not less then ten, or more than twenty years. If guilty of manslaughter you will say either it is voluntary or involuntary. If voluntary, the punishment is the penitentiary for a period of not less than two, nor more than ten years. If involuntary manslaughter the punishment is the penitentiary for a period of time not less than one, nor more than five years and by the act of the General Assembly passed March 15, 1870, the jury may fix the time of imprisonment in the county jail for a period of less than twelve months if they think such punishment would be commensurate with the guilt of the party, and that the ends of public justice would as well be resolved. Before the jury convicts the deft they must be satisfied of his guilt beyond a reasonable doubt.

A reasonable doubt is a doubt legitimately growing up out of the facts and circumstances in the record. It is not to be a whimsical caprioles doubt, nor one conjured up in the minds of the jury with the view and for the purpose upon which to acquit the deft, be as before stated it must be a reasonable well founded doubt and when such doubt exists, the jury must acquit.

James H. Randolph, Judge, C. C.

(Hind in such charge)

Verdict

The jury found the deft guilty of murder in the first degree. The deft by his counsel moved the court to set aside the verdict and grant him a new trial which motion the court over-ruled from which judgment in over ruling said motion and the refusal of the court to grant him a new trial. Deft prays an appeal to the next term of the Superior Court of Tennessee to be held at Knoxville on the second Monday of September next and tender this his bill of exception which is signed and sealed by his hand the Judge and ordered to be made a part of the record in this case.

James H. Randolph, Judge