The above murder case came up before the Supreme Court and was decided in favor of the prisoner, at the January term, 1858, of said court, in Jefferson City. The Supreme Court held, “that the testimony adduced did not warrant the verdict of guilty of murder in the first degree; that the court, below, erred in giving the above instruction, inasmuch as there was-no evidence to support it.” The trial took place in Caldwell county in April, 1857, having been taken by a change of venue, from Daviess county. The defendant, Larkin Packwood, was indicted by the grand jury of Daviess county for the murder of John T. Dougherty, in Harrison township in said county. A condensed report of the case is here given:-
” THE STATE OF MISSOURI
v. Indictment for murder.
” LARKIN PACKWOOD.
“The defendant, Larkin Packwood, was indicted for the murder of John T. Dougherty. The case was removed by change of venue from the Circuit Court of Daviess county to the Circuit Court of Caldwell county. At the trial the following testimony was introduced in behalf of the prosecution:
” Henson Bennett, a witness on the part of the State, states, he knew the defendant and John T. Dougherty, the deceased; in December last, about the middle of the month, heard defendant say that Talbot and Dougherty were stealing grain and ought not to live; afterwards heard defendant say that they stole his hogs and corn, and ought not to live; that he intended the first opportunity to provoke them to a difficulty, so that he could have the law in his favor; soon kill them as a parcel of dogs – alluding to Judge Talbot, Jim Talbot and John T. Dougherty; saying at the same time he had what to do it with; the first of the above conversations happened along the road from Gallatin to defendant’s, between where McHenry lived and Thomas Blakely’s, about three miles from defendant’s residence.
“Cross-examined. Witness said he was at Talbot’s mill on the day of the difficulty; saw David Enyart there; had some conversation with him; asked Enyart whether there was any mob up; he, witness, concluded from circumstances that defendant ought to be mobbed and hung; it was his own notion; heard nobody else say so; then admitted he did; did not ask Mr. Enyart or anybody else to join the mob; but told Enyart that Packwood ought to be compelled to leave the neighborhood; stayed at Talbot’s three days after Dougherty was killed; if a mob had existed, the intention to mob the defendant had been abandoned before he was arrested; at the time he met Packwood, between McHenry’s and Blakely’s he was riding a bay nag.
“Luther Farrington, another witness on part of the State says: Had a conversation with the defendant some two weeks before Dougherty was killed; defendant said he would have satisfaction by fair or by foul means.
” Cross-examined. Said: Don’t know what the defendant was talking about when he made the above remarks, but understood him to be complaining of the treatment he had received at Dougherty and Talbot’s mill in relation to corn and sacks which he said he had lost at the mill.
“Jacob Snyder, on the part of the State, said he was a little acquainted with the defendant; knew him for about five years; was present at the difficulty in which Dougherty was killed; it happened in March last, about the 9th of the month, at or near Talbot’s mill, in Daviess county, Missouri; he, witness, lives at the mill; is hired to Talbot and Dougherty; lives in one of their houses, but pays no rent; has a family who reside with him in said house; the house is under their control; defendant came to his house that morning; defendant was in the house when Dougherty came to it; Dougherty went into the house where defendant was; saw defendant come out of the house, and as he came out Dougherty commenced striking him with a stick or club; defendant commenced running, and Dougherty pursued him, hitting him with a club as he ran; after running some distance, about fifty yards, defendant turned around and struck Dougherty with his knife; Dougherty died of the wound in about one hour; when defendant came out of the house Dougherty commenced striking him; the stick with which he struck was about one inch in diameter and three feet long; at the time of the difficulty witness was standing between house and mill; the house and mill are about one hundred yards apart; defendant had got to or near the timber or bush when he turned round and struck deceased; Judge Talbot was there; Richard Hale and Arnold were there also about the mill; witness heard Dougherty warn defendant not to come upon the premises.
“Cross-examined. Witness said: John T. Dougherty, the deceased, lived about one and a half miles from the mill, and Talbot about the same distance; Dougherty and Talbot and witness were at the mill when they heard defendant was at the house where witness lives; Judge Talbot went with Dougherty from the mill to the house where defendant was; Dougherty took a stick and Talbot had a double-barreled shot gun; witness preceded Dougherty, at the request of Dougherty, and called his wife to the door and told her to come out, as Dougherty was going to make defendant leave; this instruction and information was not heard by defendant, who was inside of the house; witness did not know what was going to be done; Judge Talbot accompanied Dougherty from the mill to the house, and Jim Talbot was some little distance from the house; Dougherty struck defendant as he ran a good many times, defendant running all the time, and halloed as he was stabbed, Oh! Lord,’ or something of that sort; after, defendant struck Dougherty with the knife, he kept on running, and did not repeat or offer to repeat the stroke; when Dougherty was struck with the knife, he stopped the pursuit and threw his club after defendant; soon after that time heard the crack of two or three guns, fired, as he supposes, at defendant; saw Jim Talbott with the gun about that time; there had prior to this time been acts of neighborhood kindness between defendant and witness and their families; on that morning defendant came to his house to return some coffee his wife had borrowed of witness’s wife; don’t know anything about the mob; heard some talk of it; did not intend to join it, but was solicited to do so; defendant lives about one mile from the mill; shortly before that, Talbot and Dougherty got two lin logs from defendant, and Talbot, as witness understood, also sent to defendant and got a load of straw to put up ice in; this was some time in February.
“Levi Murray, a witness on the part of the State, said that about the first of February, in a conversation with defendant about the difficulty with Nathaniel Snyder about the notice set up on a tree in reference to said Snyder, defendant remarked that he had met Nath. Snyder at the mill to clear up that matter about the notice, and that they had threatened to take his blood, but if they didn’t mind he would get theirs first. He also said he had met Dougherty in Gallatin afterwards and invited him to step up at Wirt’s store and he could clear up that report about the notice about Snyder, but that Dougherty turned off and refused to go and hear an explanation. On Monday night after Dougherty was killed, heard defendant say at his house that he had gone to Snyder’s to carry some coffee home his wife had borrowed of Mrs. Snyder, and when he was there Dougherty came in and ordered him out; that he started out; -that as he went out it was his intention to cut his heart out of him before he got off the door sill, but seeing Talbot and others there he was afraid if he did the Talbots would instantly kill him, and he concluded to toll him off and then kill him and make his escape. Defendant asked witness if he was not surprised when he heard of his killing Dougherty; witness told him that he was; and defendant told witness that he was not surprised; that he had not done anything more than he had intended to do for some time. Defendant also said he thanked God he had got home with some of Dougherty’s blood and fat and flesh upon his knife, and pointed to the knife hanging upon the wall.
“Cross-examined. Witness said that defendant also said that he saw from the way Dougherty came at him and his continued infliction of blows with the club, he would have to kill him or be killed; he showed some wounds, and back and shoulders bruised up smartly. He was a friend to defendant, and went there as his friend to help him; it was a friendly feeling he had for defendant that took him to the house of defendant; in the morning went back to Talbot’s and ate breakfast there; went to town after socks for deceased; got back from town after night, and went to defendant’s in company with W. E. Hale; defendant asked him to come back on Monday night. Dr. Dewey asked me to stay and wait on defendant and lay him out if he died; was at Talbot’s on Monday; good many people there on Wednesday night; Wednesday night went back to defendant’s at his request, and on that account; found the doors barred up and got in at the window; went back home for his gun to defend himself from defendant; they (the defendant’s family) said they had heard a mob was coming that night to hang the defendant; witness had also heard this at the mill; was asked to join the mob; thought it was right to hang him; did not solicit anybody to join the mob; saw Mr. Payne at the mill; Payne said if it had been in Clay or Platte defendant would have been hung that day; that he ought to be hung right off; Morrow was by and heard what was said; he did not know, for certain, that the mob would come that night, but rather expected it; it was his intention to see that nobody got hurt except the defendant; went back after his gun to defend himself from defendant; was one of the mob; consulted with them about it, and talked to them about the danger of going to defendant’s; when he went after his gun he went by Talbot’s, and saw there the Doughertys, brothers of deceased, and a stranger, and told them that the Packwoods had the doors barred up, and that the family were armed with corn knives, scythe blades, axes and guns, and that it would be dangerous to go there or attack them. It was his purpose to disarm the family, if he could, in case the mob came.
“Testimony introduced in behalf of the defendant. Andrew Arnold, for defendant, said: That he was at the mill on the day of the difficulty; heard Dougherty and Talbot talking about defendant being at the mill; Dougherty said he meant to make him leave, and he had charged him time and again not to come there; Dougherty took a stick, and Dougherty and Talbot went to the house where defendant was; saw Dougherty striking defendant with a stick, and defendant running from him; after the fight was over, as I was going to town after the doctor, overtook and passed Jim Talbot, on horseback, in pursuit of defendant, up at the lake; defendant was dodging behind a tree, and Jim Talbot near by with his gun, and being after a doctor, rode on, and as I went, heard a gun fire.
“Dr. Dewey, a witness for defendant, said: That he saw the defendant on the evening he was wounded (the day Dougherty was killed); found defendant bleeding freely; breathed hard and spitting blood; examined his wounds; found his back and shoulders badly bruised by severe blows; counted eleven severe bruises on back and shoulders, as if done with a club or stick; from shoulders to point of his ribs all bruised up; spit up, in a short time while I was there a pint or more of blood; at first thought he would die; did not invite or desire Murray to stay there that night or wait upon him or lay him out; defendant was also wounded with a gunshot in the side. It was about six inches ‘from where it went in to where it curie out; it did not enter the hollow or cavity.
“The court gave the following instruction to the jury (third instruction): That if the jury believe from the evidence that the defendant went to the house and mill of deceased and one T. S. Talbot with the intention of provoking a difficulty with the deceased in order that he night take the life of defendant, John T. Dougherty, and that he did provoke a difficulty with the deceased pursuant to such intention, which resulted in the death of Dougherty, they will find him guilty although they should believe that the deceased, Dougherty, committed the first assault.”
There being no such evidence in the case, nor anything that looked to such action on the part of the defendant, the Supreme Court took a different view of the matter from that of the Circuit Court, and below is given the decision of Judge Napton, who delivered the opinion of the court. While it seemed perfectly clear that Packwood was a man of but little character or reputation and Dougherty a valued citizen, it was clear that the latter had committed the assault and was the first aggressor. Packwood may not have been worthy the notice of his victim, but Dougherty had allowed his temper to get the better of his judgment, and unfortunately lost his life.
“It is not the province of this court to weigh evidence, nor has it been the practice to interfere with that discretion which has been entrusted to circuit judges over the verdicts of juries. I am not aware, however, that the court has in any case entirely repudiated all power over the subject, although I believe the tendency of recent decisions has been in that direction. With out undertaking to define the precise limits within which this power may be exercised, we are constrained to say that the verdict in this case is unsupported by the evidence, and cannot be allowed to stand.
“The facts were that the deceased went to the house of one of his tenants, etc. (here the judge reviewed the testimony in the case). The third instruction was not warranted by any testimony in the case, and should not have been given. We have been unable, after a very careful examination of the bill of exceptions, to discover any evidence whatever that the prisoner went to the house of the deceased’s tenant with the intention of provoking a difficulty; much less that he did provoke a difficulty after he got there. On the contrary, the witnesses for the State are positive and clear and uncontradicted that the prisoner neither used any language nor did any act, or in any way whatever, actively or passively, so conducted himself as to provoke a difficulty.
“In a case of this importance, where human life is at stake, we feel it to be an imperative duty to interfere, a bare perusal of the evidence will make it apparent that the State did not make out the crime of which the prisoner was charged and convicted, and that in truth no testimony was given which could reasonably lead to such conviction. We shall therefore reverse the judgment and order a new trial. Judge Richardson concurring; Judge Scott dissenting.”
Packwood was discharged and moved to Ray county where he was still living a short time since; thus ended this trial, which, from the high standing of the victim and the want of character in the man who struck the fatal blow, caused intense excitement. It is clear that to the evidence of Murray, for the State, was due in a large part; the release of the prisoner. His cold blooded evidence to carry out the mob law and going to the house of Packwood as a friend, was too much for the Supreme Court.
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