Murder Trial of William N. Berry
Transcribed by Gladys M. Owens
While researching for our book Reflections
Housewright Family’s Journey, co-authored by Regenia Koger,
and myself, we were given some information a Mary Housewright had
Berry, but he had been hung for killing his wife. William
N. Berry was the last person to be
In the 1870
William Berry 45
Sarah Berry 20
Mary Berry 16
Matilda Berry 12
Amanda Berry 3
In the 1880
S. D. Henard 52
Tabitha Henard 50
Loid D. Henard 16 son
Amanda Berry 13 other
During the trial, Matilda marries a Smith. I have not been able to find out anything about her or her other sisters after the trial.
If you have any information about these
people, contact me
at firstname.lastname@example.org or email@example.com. If you need to research in
Inquisition over the body of Allie Berry
Witnesses for the State
J. R. Henderson
An inquisition holden (that is what it looks like) at the late residence of William N. Berry in the County & State aforesaid on the 2nd of November 1872 before George W. Brooks Coroner of the said County upon the body of Mr. Allie Berry there lying dead by the jurors whose names are hereto subscribed who upon their oaths do say that she came to her death about the 11th of October last by a severe blow inflicted upon her head by William N. Berry, Sarah Berry, Mary Berry & Tilda Berry, weapon unknown, & she came to her death feloniously.
In testimony whereof the jurors have hereunto set their hands the day and date above.
Ilneen (?) G. Lee
L. D. Loyd
J. W. Sleneor, Son
John. F. Long
John W. Daywood
G. W. Brooks Coroner
Mary Berry &
Executed by arresting the within named parties and bringing them before J. H. Spears & C. Achardes Esgs for trial on the 7th day of Nov 1872
Summons for the State
Thos Berry, Sr, Cleon Berry, J. R. Henderson, Thos Henderson, James McPheron, Henderson Berry, Malinda Hartman.
J. H. Spears, J. P.
Jno J. Wolfe, Clk
By J. R. Pace, OC
Judgment that the defendants are guilty of the charges specified in the warrant and that no default of bail they be confined in the jail of Hawkins County until the next term of the Circuit Court of said County there to have a further hearing to the cause.
J. H. Spears, J. P.
C. A. Charles, J. P.
To the Sheriff of said County greeting
Information on oath having been made to me that the offence of murder has been committed in the County of Hawkins & State of Tennessee on the body of Alley Berry & accusing William Berry, Sarah Berry, Mary Berry & Matilda Berry thereof---you are hereby commanded therefore in the name of the State forthwith to arrest said William Berry, Sarah Berry, Mary Berry and Matilda Berry and bring them before me or some other Magistrate of said County to answer the charge.
John H. Spears, J. P. for
Personally came Joseph Jenkins before me and made oath in due form of law that Alley Berry, wife of William Berry a citizen of Hawkins County was lately found dead in said County—that he verily believes she came to her death by violence and that William Berry, Mary Berry, Sarah Berry and Matilda Berry murdered the said Alley Berry (for committed murder on the body of said Alley Berry) that said Alley Berry was the wife of said William Berry—that she was as he is informed & believes at the residence of said William Berry on the morning of the 11th of Oct. 1872—that she was heard to utter screams of distress on said day---that said Alley Berry has not been seen alive since Oct. 11th 1872==that a body was found near the residence of said William Berry buried in an indecent & inhuman manner in the ground==naked or nearly so and that said William Berry, Mary Berry, Sarah Berry & Matilda Berry through remaining at their said residence until the 31st day of Oct 1872 never gave any alarm to their neighbors at the fact of said Alley Berry’s missing---but said parties started as they reported to move to Texas.
(Written on the side is:)
which dead body affiant believes to be
that of said Alley
Sworn & subscribed to before me
John H. Spears, J. P.
The defendant William Berry makes oath that justice requires that a …….be granted in this case the other defendant against them is no proof should be first put on trial in this case. He asks wherefore that the other defendants be first put upon trial to ………justice
Wm his mark
Sworn to in open court 4th day July 1873
John J. Wolfe, Clerk
Wm N. Berry
The deft makes oath that there exists at
the present time in
the County of Hawkins such degree of excitement and prejudice both on
of the grave character of the offence with which he is charged and the
circumstances surrounding the ……rmisaius? There of which tend to
affiant there with as well also as the fact that affiant very recently
escape from the jail of said County and was arrested and returned from
distant state, and is now and have been since his return, heavily
said jail and in such condition ahs at times been unnecessarily exposed
public view and also on account of the further fact that his
influenced by and urged as he believes by a very numerous kinship
resident in this County. He does not
believe that he can have a fair and impartial trial in said County of
and for the reasons above stated affiant does not believe that the ….of
be met without a removal of the case by Change of Venue as allowed by
some approving County when the objections urged do not exist. Affiant there fore prays that a Change of
Venue in the case be ordered to the
W. N. Berry
Sworn to and subscribed before me on
J. J. Wolfe, Clerk
Affidavit for Change of Venue
Wm N. Berry
J. J. Wolfe, Clerk
Wm N. Berry
The deft makes oath in due forum of court that he cannot safely come to trial at the present term of the court for the reason that Col. Jas. Netherland who has been his counsel from the date when the accusations of which he now stands charged was first brought against him is absent and unable to be present at this term of the Court on account of a severe injury recently received by being thrown from his horse and of which he is now confined to his bed. Affiant further states that Mr. Netherland is the only person having knowledge of the fact which he relies on for his defense and that his said counsel has herewith sably? Conducted the proceedings preclaimay? To making said defense and that it would not be possible to for affiant to advise another council at this lat hour as to the character and nature of the fact relied upon by him in such way as that a full development of the case could be had upon a trial at this term of the Court. Affiant further state that through the assistance of his friends he has …….employed additional counsel but that he has not as yet had any opportunity to confer with him in reference to the case. Nor does affiant believes that counsel is acquainted with the facts of the case ……beginning could possible investigate the same witness in time to which he would necessarily be restricted in a sufficiently through manner to present the defense which affiant has in the full and ample manner which justice requires should be due affiant therefore prays that the case be continued until the next term of this court not that the ….of justice be thwarted or even delayed but that justice be done
W. N. Berry
Sworn to and subscribed before me on
T. C. Carin, Clerk
Also personally appeared before me S. J. Kirkpatrick who being sworn states that he has recently been retained as Counsel for the deft—in the case of the State Vs Wm N. Berry now pending for trial in this court. Affiant states that he is wholly unacquainted with the facts in the case not having had an opportunity to investigate the case since his being retained therein and affiant does not believe that he would be doing justice to his client in going into trial in the above of deft…..cause and upon the ……information which he provides of the fact s of the case he therefore prays that the case be continued with the next term of this court to the end that a fair and impartial investigation in of the case …..be found and the case trial upon its merits.
S. J. Kirckpatrick
Sworn to before me on this 20th Aprl, 1874
T. C. Carins, Clerk
W. N. Berry
P. G. Fulkerson, Atty Gen. for the state makes oath in due form of law that Matilda Smith formerly Matilda Berry who is a material witness for the state and has been summoned is absent as he believes in contempt of the process of this court wherefore affiant proposes that an attachment issue against said witness.
Pl G. Fulkerson
Sworn to & subscribed on
T. C. Cains, Clerk
To the Sheriff of
Whereas in our circuit court for Hamblen
indictment is proceeding against Wm Berry for murder and whereas it
from inspection of record that Matilda Smith had be regularly summoned
appear at the term of our court now sitting to give evidence in behalf
sate and if further appearing to the court from affidavit of P. G.
Atty Genl that the said Matilda Smith refuses to obey the summons and
contempt of the court it is ordered that an attachment issue for the
the said Matilda Smith your are therefore commanded forth with to have
of the said Matilda Smith before the judge of our court.
Now sitting at the courthouse in
T. C. Cain, Clerk
State VS W. M. Berry
Attachment for witness
Issd-Dec 21, 1874
Executed as commanded by taking the body
of Matilda Smith on
Bill of Cost 75 cts (cents)
E. Baird guarding witness attached 3 days $3.00
Wm N. Berry
Indictment for Murder
Be it remembered that this case come in
to be tried before
the Honorable Jas. R. Randolph Judge of the 2nd Judicial
Tennessee presiding at Morristown in the County of Hamblen in said
the 24th December 1874 when the following proceedings were
had. To wit the deft was arraigned the
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
I was not at deft
Thomas Berry called by the state
testified as follows: I live in
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
The state then called Cleon Berry who
said: I’m a son o Thos
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
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.
Mcferron- I was at old Thos
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
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
started away it was about dark told me he was afraid to leave home wife
gone to Clinch had threatened to get a craved (?) come back kill him
children and burn them up in his house.
Children was afraid to stay that she was mean enough to kill me.
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
river some 10 to 12 miles urged me not to tell the old woman if she
where he had gone he wanted her to whip her self and completed that
time. I had been acquainted with wife
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
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
Cross Examination of Mcferron:
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 se started. We started off the last of Oct. It was about 3 weeks before we started. (written on the side-mother had awful temper ……..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 ½ mile from deft. He
said she was over on Clinch somewhere this
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
on examination proved to be something else.
Hankerchief around her neck was not tight a string around each
looked like a garter. I was pretty
certain it was Wm
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……..
W. N. Charles---On the morning of the 11th
heard a hollering in direction of where deft lived up towards the
screams were as that of one in distress they were pitiful.
I lived 1-½ 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
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
Cross Examination of Charles. It was about I heard the hollering. I can …..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
It was two or three days after the
corpse was found that I
first went there same time
This was all the testimony.
The court charged the Jury as follows.
Wm N. Berry
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)
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
court over-ruled from which judgment in over ruling said motion and the
of the court to grant him a new trial.
Deft prays an appeal to the next term of the Superior Court of
to be held at
James H. Randolph, Judge
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