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From the Collection of Gary Frazier

Frazier Family Petition For Parole Denial To John Barnette

Court Papers Filed By Family Of Creed & Willie Frazier
Requesting Denial Of Parole To John Barnett.

These documents are sworn statements taking at the trial and affidavit taken after the trial.  “This is not the complete transcript of the trial”.  These documents were presented to the Governor of Virginia when John Barnett was requesting a parole hearing.  These along with a letter were presented to the Governor requesting parole be denied.  John Barnett was granted a parole by the Governor.   For John’s Barnett’s own safety he was paroled to Tennessee .

 

July 26th 1941

Honorable James H. Price

Governor of Virginia

Richmond Virginia

Dear Governor Price:

I understand that an application has been made to Your Excellency for a pardon for a John Barnett who is convicted in the Circuit Court of Scott County, Virginia, in one case for the murder of Mr. Creed Frazier and in another case for the murder of Willie Frazier, and was given a sentence of life in each of the cases.

I represent the children of Mr. Creed Frazier, deceased who very much opposed to the granting of a pardon in these cases and we would appreciate it if you would give us an engagement to discuss this matter with you at your convenience.

Respectfully yours,

Hagan Bond

 

To His Excellency, James H Price, Governor of Virginia .

In Re: Application of John Barnett for a pardon.

You petitioners, who are children of Creed Frazier, deceased, and brothers and sisters of Willie Frazier, deceased, respectively represent to Your Excellency that John Barnett should not be granted a pardon of his conviction in the Circuit Court of Scott County, Virginia, for the murder of Creed Frazier and for the murder of Willie Frazier, and your petitioners are informed that a petition for a pardon has been filed with Your Excellency.

Two different juries passed on these cases, on a jury of Scott County , Virginia and one a jury of Lee County , Virginia , and each jury found John Barnett guilty of murder in the first degree and fixed his punishment at life imprisonment.  He had a fair trial in each case and was represented by able counsel and the facts in each case were fairly presented to the jury.  Your petitioners do not know of any additional facts in the cases that have developed since the trial of the cases.

Your petitioners file herewith a stenographic copy of the evidence in the case in which your petitioners are advised amply justified the jury in their verdicts in the cases.

Your petitioners also file herewith a petition of most of the jurors who tried the case respectfully advising that a pardon should not be granted in these cases.

You petitioners therefore respectfully represent that a pardon should not be granted to John Barnett. 

Respectfully Submitted.,

We, the undersigned jurors who participated in the trial of John Barnett, who was convicted in the Court of Scott County, Virginia, for the murder of Creed Frazier, respectfully represent unto His Excellency, the Governor of Virginia, that the said John Barnett had a fair trial, that the facts in the case were fairly presented to the jury and that we know of no reason why a pardon should be granted to the said John Barnett

P.L. Hart

C.H. Bush

H.T. Lawson

C.P. Bond

W.P. Kilgore

Sam McConnell

J.W. Fink

H.M. Bays

 

Commonwealth of Virginia

Governor’s Office

Richmond

July 30, 1941

Hon. Hagan Bond

Gate City Va.

Dear Mr. Bond

You letter of July 26th, advising that you represent the children of Mr. Creed Frazier, who opposed to a pardon for John Barnett, has been received and placed in the file so that the governor may have it before him when giving consideration to this case. 

Very truly yours

Lanna? H Allen

Secretary to the Governor.

 

Page Amos Ervin (sworn) testified.

Direct Examination:

By Mr. Vicars

Q       State what he said and all that occur on that occasion, so far as you know it.

A       He says are there “Ar’y  God dammed man here that wants to die”

Q       You mean that was the first thing he said when he got to you?

A       Yes Sir

Q       Who was with you at that time?

A       My father and Will Frazier were all close by.

Q       State what occurred and what he did.

A       I had a strip in my hand and he back a little bit from me and I threw the strip down, and he had this gun in both hands and I told him when he said “ Are there Ar’y God dammed man here that wants to die”, I says, “John, I don’t want to die”.

Q       What did he say?

A       He says, “I am going to kill Will Frazier in five minutes.  He never gave me time to answer – oh, I might have said something to him, what was the matter or something, I would not state positive, but he says “If Will Frazier don’t take something back he called me across the ridge I am going to kill him in five minutes.”

Q       Where was Will Frazier at that time, when he said that?

A       Well he was right close, I judge twenty to thirty feet from me:  I believe he was below my father. 

Q       Where was he with reference to where you father was at that time?

A       Well, I never noticed, but we were all close together, right close together. 

Q       Do you know if he was between Will Frazier and the defendant?

A       No sir, I do not know.

Q       Go ahead and tell me what else he said and did.

A       I commence talking to John trying to plead with him.

          (** The next part appears to be after John had shot Creed and Willie **)

Q       What else occurred right there at that time, after this conversation, just after you got there.

A       John has come over across the branch and was in about ten to fifteen steps of him.

Q       Had he got over there at the time Creed Frazier was having that talk to you?

A       What called it to my attention somebody says –

            (objected to Etc)

A       (cont’d) Somebody says “He going to shoot him again”.  I was holding his head up.  Me and Charlie Robinett and Eli Son stepped between them and went to talking to him, put our hands up and told him that he was the same as dead and plead with him not to shoot him any more.

Q       How did he have the gun when you r attention was called to him again?

A       He had it in both hands in what I call a ready position. 

Q       In what direction was it pointed?

A       He did not have it up to his shoulder, he had it pointed out some in that direction, but the gun was not to his shoulder.

Q       When you begun to plead with him what did he say?

A       He said, “If he has not got enough and goes to wiggling around, “I’ll give him some more”.  He told us all to stand back, not to get up around him, not to come close to him. 

Q       What was Creed doing at the time he had the gun in the position stated and said, “If he has not got enough and goes to wiggling around I’ll give him some more”?

A       He was lying on his back and I believe his knee (indicating) was up and this leg was kinder straightened out; he could not move this leg.

Q       You meant the right leg?

A       Yes, I never did see him move his left arm or leg; he ask me to move him several times.

Q       What was Frazier doing when he doing when he made the expression “goes to wiggling around”?

A       Well he moved his foot – must have moved his foot or something like that.

Q       How close was he to Creed Frazier when he said, “if he wiggles around I will give him some more”?

A       Well, I judge he was ten steps, or something like thirty to forty feet.

Q       How far had he gone from the place at which he stood when he shoot Creed Frazier until he was thirty to forty feet of him and used the expression you stated?

A       It was one hundred feet from where he stood to where Creed fell, and I judge it was something like seventy feet he had gone over in that direction. 

Q       He had gone seventy feet from the place he had shot him, when he said this talk about giving him some more?

A       Yes, Sir.

Q       Had he crossed any branch or anything?

A       Yes, Sir.

Q       Where was he at the time he was doing this talking with reference to Will Frazier?

A       Well, he was farther from it then he was from Creed Frazier.

Q       The body of Will Frazier –

A       -- Was lying in the opposite direction.

Q       Creed Frazier was lying between there and where the body of Will laid?

A       Yes, Sir.

Q       Was Will Frazier’s body lying in plain view of him at that time?

A       It was unless somebody was standing between them.  There were some several around and it could only have been hidden by somebody standing between them.

Q       How long was it from the time he shot Creed and Will Frazier and they had fallen until he was in thirty to forty feet of Creed?

A       It was not but a short time.

Q       As much as a minute?

A       I would not think over two minutes, two or three minutes, I never noticed, the first I noticed of him was when someone said he was going to shoot again.

               (** Skips forward to next section**)

Q       Did you hear John Barnett say anything farther over there at the body of Will and Creed Frazier?

A       No, Sir, I do not believe I heard him say anything.  Yes, I heard him say “I’m not a dammed bit scared or excited”.

Q       Where were you when you heard him say I am not a bit scared or excited?

A       That was while we were talking to him about not shooting Creed the second time.

Q       What else did he say except that he was not a dammed bit scared or excited then and what you have already told.

A       That’s all.

Q       By way of refreshing your memory, do you recall whether he said  “I told you what I would do”?.

A       Yes, he said “I done just what I told them I would do”.

This is the affidavit of Charlie Good, taken at Clinchport, on August 2, 1941.

I was the sawer at the saw mill at the time Creed Frazier and Willie Frazier were killed.  The first I saw of John Barnett on that day was in the morning when he came to the saw mill where we were working, at which time he was armed with a rifle and a pistol.  At that time he had some trouble with Mahone Frazier, a brother of Creed Frazier, and threaten to kill Mahone on that morning. 

He stayed about an hour that morning and came back that afternoon around 2 o’clock .  When he came back that afternoon about 2 o’clock I had my sawmill crew working there at the saw mill.  The men who were there were myself, Eli Sons, Charlie Robinette (who was there on other business not connect with the sawmill), Amos Ervin, ? Ervin, Morgan Seymour (who is now dead), Roy Frazier, Enon?, Arrington, Logan Falin, Willie Frazier, and perhaps some other that I do not recall.  Anyway I had a full crew of men at the sawmill and I was in charge of the sawing operation.  The sawmill belonged to me.  Mr. Creed Frazier and Willie Frazier had employed me to do the sawing on this job.

When I first saw John Barnett come back to the sawmill that afternoon, he was coming in kind of a “trot” he had a pistol in his belt and was carrying a rifle in his hands.  He came on up to where we were sawing and, at that time, Mt Amos Ervin and J? Ervin and Willie Frazier were handling the strips from the sawmill and the first word John Barnett said was “Does anybody here want to die”?  When John Barnett said that, Amos Ervin said “John I don’t want to die”.  Willie Frazier jumped behind the sycamore tree.  Then Eli Sons, who was present, talked to “John Barnett and said John let this go, you have some children and Willie has some children”.  John Barnett said, “God damn the children.”

Amos said, John , let’s go up and talk about this a little and Amos Ervin and John Barnett went up above where we were working and sat down on a log and talked awhile.  I do not know what they said.  While Amos Ervin and John Barnett were up above the mill talking, Willie Frazier came back to the mill and said , “Do you suppose that man wants to kill me?” and I said “Willie”, I don’t know, that man has some meanness in him.”

Willie went down around the boiler and in a few minutes Roy Frazier drove up in a truck and I saw John Barnett throw his gun on Willie Frazier, Roy Frazier ran in between John Barnett and Willie Frazier.   When Roy ran between them he said “shoot me, don’t shoot Willie.  Willie has a wife and some children.”  John Barnett said “I don’t want to shoot you.  I have got nothing against you.”  Then he motioned to Roy Frazier and they went up and sat down on a log together.  I didn’t hear Roy and John’s conversation. 

They went from there up to Amos Ervin porch and I don’t know anything from there about their conversation.  Then John came back toward the barn door and set down on a board block for a few minutes, and then Creed Frazier came up to the sawmill from a road that came up from the east.  When Creed Frazier came up near the mill, John Barnett ran toward the barn door and jumped behind the barn door.  As Creed Frazier came up he put his hand up and said something to John but I couldn’t understand what he said; and John Barnett then opened fire and shot Creed Frazier.  At the time he shot Creed Frazier, Creed was not attempting to do anything to John Barnett.

When John Barnett shot Creed Frazier and he fell, Willie Frazier ran a step or two beyond Creed Frazier and then turned and ran back in the direction he had come, as he was running John Barnett shot him in the back.  Willie Frazier was killed instantly.  Roy Frazier was running along with Willie Frazier and John Barnett shot the third time at Roy Frazier and Roy fell down behind a rock.  Then John Barnett shot a fourth time at Mahone Frazier as Mahone was running away from the scene and climbed from Amos Ervin’s yard fence.  He was falling over the fence when John Barnett shot at him. 

I went to Creed Frazier immediately after the shooting and found that he was shot, and Creed asked me “Is Willie dead?” and I says, “I think he is, he is not moving any.”  Creed said I would rather he had killed me because Willie has a wife and some little children.”  Then John Barnett came down to where I was and at that time I was holding Creed Frazier’s head in my lap, and John Barnett said, “Are they dead?  If not, I can finish them.”  

When he came down to where Creed Frazier was lying, he still had the gun in his hands.  John Barnett left there in a very few minutes with C. C. Robinette.

At that time I was in the hospital with blood poisoning and not a witness at the trial.

This is the affidavit Charles C Robinette taken at Gate City, Scott County Virginia , on July 31 1941.

          My name is Charles C. Robinette .  I live in the Lowell Magisterial District, Scott County , Virginia and am a farmer.  My age is 61.  I was an eye witness to the case of the Commonwealth of Virginia against John Barnett for the murder of Willie Frazier and Creed Frazier.  I am not related to John Barnett or the Frazier’s.  My recollection is clear as to what happen on that occasion in September 1927 when the two Frazier’s were killed.

          I went down to the sawmill which the Frazier’s were operating on Amos Ervin’s place, that day I had just had my dinner.  It must have been 1:00 P M as the mill had started running again after the dinner hour.  I had gone to look at a heifer of Hall Pierson’s which was grazing on Amos Ervin’s farm.  I went down and started talking with Lnoch Arrington at the mill, who was firing it.  We had talked a little while when he had said, “Charlie” did you know that there was trouble up here, that John Barnett was about to kill Willie Frazier awhile ago?”  I noticed the Frazier boys were not there at the mill at that time, neither one of them, and I asked Enoch where the Frazier boys were.  He said that he didn’t know where they were. 

          I was setting down on the wood at the mill and there were weeds there so I could not see the road very well from where I was setting.  I noticed Enoch looking out the road (he was standing up) and he said, “Charlie, I see the Frazier’s coming now.”  I got up and looked toward the barn and saw Amos Ervin and John Barnett setting on the board block together.  Amos could see up the road and John was facing Amos, and with his head in that direction he could not see up the road where the Frazier’s were coming.  Amos Ervin seemed to be watching the road and John Barnett too.  I saw John all at once turn his head in the direction of the road and jump up and run.  He ran fast until he got to the barn and I though he was going in the barn.  The door to the barn was swinging open to the outside.  John Barnett made about one step behind the door and got his gun ready to shoot, stepped back out in the clear and shot Creed Frazier.  He shot from his left shoulder and had to be clear of the door to shoot from his left shoulder, as he was shooting east.  Had he been shooting west he could not have stayed behind the door. 

I saw Creed Frazier, as John Barnett was running to the barn through up his left hand with his hand open.  After he was shot, Creed Frazier slumped to the ground.  He did not fall, but rather slumped down gradually.  From my position I had not seen Willie Frazier until after Creed was shot.  He had come out into the open then where I could see him.  Willie had run a distance almost parallel with the barn and about one-half the length of the barn going north.  He suddenly turned and run back toward his father, the way he came in, and just as he passed his father John Barnett shot him in the back and he fell spreading out, falling on his face. 

Roy Frazier was right close to Willie when the latter fell and Roy sprawled out falling behind a ledge of rock.  I could see Roy ’s hands up when he was laying behind the rock motioning with both hands.  Then John Barnett shot at Roy , one shot and barely missed him.   Roy still had his hands up and John started to shoot again when I said, “For God’s sake, John don’t shoot a man who has both hands up”.  John Barnett just smiled when I called on him, and lowered his gun.  He later told me he had a bead on the middle of Roy ’s forehead at that time when someone called him down, and I said, “John it was me”, and he said “I am proud you did, Charlie, because I didn’t have anything against Roy .

I asked him if any of the other Frazier’s had shot at him and he said they had not.  Mahone Frazier was there and ran to the house in it.  John Barnett told me he shot at Mahone, that he shot four shots in all and came damn nigh getting Mahone.

I went over to where Creed Frazier was by the way of the barn and John followed me over there.  When I got there I noticed him about four feet behind me with his gun to his shoulder waving it and I told him for God’s sake not to shoot a man who is already dead.  Creed Frazier had kind of raised up and John Barnett has said, “God Damn you, if you haven’t had a enough, I will give you another.”  That was before I told him not to shoot a man who is already dead.  I was waving him back, saying, “John, get back”, and he waved his gun toward me and told me to stand back and not touch him.

Then he just dropped his gun down and pointed it toward the ground and walked off like he was going up the hollow.  Then Roy Frazier got the truck to go to Clinchport for a doctor, and John Barnett ask me where he was going and I replied he was going for a doctor, but that I did not think it was of any use.  Amos Ervin came up and ask John what he was going to do about this. And John did not say anything.  Amos ask him if he would give up to me.  John Barnett then gave me the big rifle and said, “I will give you the big gun, Charlie, but I won’t give you the pistol.”   I told him I would not him unless he gave me the pistol too.  Then when he started to hand me the pistol, he says, “Charlie, will you let anyone hurt me?” and I replied that I would not let anyone hurt him, and he gave me the pistol and we started for Gate City . 

We went to the Clinch River and he was afraid of harm, and I took him up the river and called across to a Mr. Flannary to bring the boat over for us.  He brought the boat over and we crossed over to the other side.  John had not done much talking until then.  He got to talking and said, “Charlie, I knew I had killed Willie cause he jumper like a damn rabbit when the gun fired.    When we got a few steps further he said, “I was not worried after I got Creed Frazier” and I told him, “Yes, when you shot Creed you shot a brave man.”   Then he said when you look at me you are looking at a damn bad man”.  He also said “Charlie, I did some damn good shooting didn’t I?” and I said, “Yes it is better then I could have done.”  He said he ought to have because he had been practicing, that he had been practicing at apple trees and had got to so he could shoot turned around and knock bark off where ever he wanted to.

I took him on up the river almost to the state highway and hid him in bunch of  willows.  He ask me to let him have the big gun and I did.  He was hidden almost out of sight.  I got to the bridge which crosses Clinch River and saw a large crowd congregated on the other side of the bridge at William’s store.  I crossed over and Sheriff Palmer, High Sheriff of the county, was there and I informed the Sheriff that I had John Barnett and took the Sheriff to him and John Barnett came out of the willows and went to the jail with the Sheriff.

This is the affidavit Doyle Head taken at Scott County Virginia , on August 5, 1941

My name is Doyle Head.  I am 42 years of age.  I live in Scott County Virginia on the Clinch River , having lived in Scott County Virginia all my life.  I knew John Barnett and have known him all my life.  I knew Creed Frazier and Willie Frazier.

I was working for Creed Frazier when the shooting occurred and was logging in the woods.  About 7 o’clock that morning in September John Barnett came by as I was hooking up to a trip of logs.  He was armed with a rifle and had a pistol in his belt.    I ask him if he was going hunting or something.  He said, “Nowhere”, and left and then in about an hour he came back.

Mahone Frazier and I had been in a conversation and John Barnett evidently had been in the brush listening to our conversation.  When Mahone Frazier left, John Barnett came out of the brush and approached me and ask what Mahone Frazier and I were talking about.    When John Barnett ask me what Mahone Frazier and I were talking about I said “Oh Nothing much.”  He had his guns and he remarked to me, “You are upholding that God-dammed set”, meaning the Frazier’s, and I told him that I was upholding nobody, and that he had better get his guns and go on away.  He told me he had a good notion to kill me.  I did not know what he was going to do.  I thought he might have shot me. 

Mahone Frazier had left shortly before that, not more then a minute and one-half, but after John Barnett had threatened me and threw his guns on me, he put them down and left and I did not see him any more.  He abused me on that occasion very much and he had no right to abuse me at all. 

Around three o’clock or something like in that in the afternoon after this, I heard three maybe four shots from that direction.  I heard them plain from where I was working and it seemed to me like from where I was that they were from down around the mill.

I am not related to the Frazier’s, but I am distantly related to John Barnett, his father (Tom Barnett) and my father were second cousins. 

I hereby authorize Mrs. Babcock to sign my name to this affidavit as I am unable to read or write

This is the affidavit Lee Head taken at Kingsport Tennessee , on August 5, 1941.

My name is Lee Head and I am 44 years of age.  I live in Kingsport , Tennessee , but formerly lived in Scott County , Virginia .  I knew Creed Frazier and Willie Frazier and I knew John Barnett. 

Shortly after John Barnett was in jail after the murder of Creed Frazier and Willie Frazier, John Barnett sent for me to come to the jail.  He sent word by his father, Tom Barnett, and his mother Belle Barnett.  He sent word two or three times.  I went to the jail he was in at Gate City within three to four days after the murders and talked to John Barnett.  He asked me how everything looked on the outside for him and I told him it looked bad.  He said he did not think there would be anything much done about this and when he got out he would kill all of them, meaning the Frazier’s.  I stayed in the jail house and talked to him around 20 minutes I guess.  He also asked me not to testify or swear against him about threats he had made previous to the killings.  He had made these threats in my presents.

Previous to the killings, John Barnett had been in my home.  When I lived in Scott County Virginia , and talked with me and made threats against the live of Willie Frazier and that he would have to take care of Creed Frazier before he killed Willie.  He said that he would have killed Willie already but he was afraid of Creed Frazier.  He had this talked to me at my house and in the public road.  He told me that some three or four times and it was shortly before the killing.  I told Sheriff Creed Frazier about this.     

I was working in the woods in the morning of the shooting for Creed Frazier, logging.  John Barnett made two trips in there that day.  He came in about 7 o’clock in the morning.  He was armed with a high powered rifle and a pistol when he passed me.  He came back after dinner sometime.  He was still armed and in a bad humor, but he passed me up and I do not know what he said to my brother or to Mahone Frazier.

I heard the shooting.  I was about 200 yards away.  I had come out of the woods and was down in the clearing.  There were four shots.

Signed by Lee Head and Notarized by W. R. Jennings.

This is the affidavit J. H. Ervin taken at Gate City, Scott County Virginia , on July 29, 1941.

My name is J. H. Ervin I am 77.  I was present when John Barnett shot and killed Creed Frazier and Willie Frazier in Scott County Virginia , on the 29th day of September 1927.

When I came in from the mill they told me that John Barnett had been in there that morning with a high-powered rifle and pistol.  We had Charlie Good sawing timber there.  This was a sawmill set which Creed Frazier, Willie Frazier, Charlie Good and others were operating on the land of my son, Amos M. Ervin, in Scott County Virginia.

After the men who were working had eaten their dinners and rested awhile, I heard Amos Ervin and Willie Frazier say there “Yonder John Barnett comes again.”  John Barnett was off about 100 yards when I first saw him and he kept on coming straight to where we were.  Amos Ervin was there, Willie Frazier and myself.  John walked up to us three.  There were also others present.

The first word John spoke when he come up to about 8 steps was “Do you know of ant God-dammed man who wants to die”?  Well, he got no answer for some little time, then Amos spoke up, “ No,  John I don’t want to die.”  John was carrying a high powered 45x90 lever action rifle and pistol.  I noticed this, yet I had never spoken a word.  John made three motions with the muzzle of the gun bit I didn’t know what he meant.

Willie Frazier was standing directly behind me.  I suppose now that the motion was for me to step aside.  John Barnett spoke to Amos and motioned him to walk off some 20 to 25 yards away from there.  Amos Ervin and John Barnett then set down on a saw log there on the ground, and I immediately left and went to Amos’ house to talk to his wife told her what was happening.  She was nervous about what had happened that morning.  The house was about 100 yards from where I was. 

As I went by John Barnett going to the house, he said to me, “Don’t come close to me, and I answered, “John, I am not going to bother you, I am going on over to the house”.  I told Amos’ wife not to get excited, but that John had come there to kill or be killed.  I could see that in him.  It was his first trip he had ever made in there to the mill.  I picked up a chair and went out on the porch and set down.  From the porch I could see everything going on at the mill, pretty soon I saw Amos get up and come to the house and John started in the direction of where Willie Frazier was.  Willie was down at the boiler of the sawmill which was about 50 yards from where John Barnett and Amos Ervin were.  They proceeded until they got in about 8 or 10 steps of where Willie stood behind the boiler. 

About that time Roy Frazier, who is the brother of Willie Frazier, came up driving a truck and when he saw there was trouble going on, he went over to the boiler where Willie was.  He stayed right by the fire box of the boiler and Barnett was 10 steps away.  Roy Frazier had both hands up high.  John Barnett motion for Roy to come out toward him, and John backed up 15 steps never turning his back toward Roy Frazier.  He then motioned with his gun for Roy to be seated beside him on the saw log.  This log was about 14 ft in length and John Barnett set down on one end of the log and Roy Frazier on the other end. They talked together for about a minute or a minute and one half, but I could not hear what they said. 

I was still setting on the porch and saw everything that happened, and I noticed Roy Frazier get up and start in the direction of the house where I was.  Roy told me later that he said, “There’s Mr. Ervin on the porch, let’s go over there and talked to him”.   John Barnett also got up and came in the direction of the house about 8 to 10 steps behind Roy, never getting any closer to him, still carrying his guns.  Roy came straight to where I was and set down on the steps.

John Barnett came to the road about 20 steps from the house and stopped.  I said to John then, “Come on up, John, I want to talk to you awhile anyway.”  John finally came up into the yard.  I then began to reason with John and talked to him about the trouble that was brewing.  I told him that Willie Frazier has a wife and small children and that John himself also had a wife and small children.   When I told him about the children he said, “God Damn the children”.  I reason and reason with him but I saw it was not taking any effect;  and he ask me if I would go down and bring Willie Frazier up there.  I made him no answer.  He ask me that the second and third time.  I finally said John you are heavily armed, but I will go down there and get Willie Frazier and bring his up here if you will turn these guns over to Amos Ervin or Roy Frazier.  He made no answer to that.  I got up to go down and bring Willie Frazier up there, but when I arrived at the boiler of the sawmill Willie had moved down the branch about 15 to 20 steps lower where they loaded their lumber.  Roy Frazier had walked out behind me and caught up with me just as I got to the mill.  When he came in sight of Willie he motioned his hand to him to get away, but didn’t speak a word.  Then Willie ran until he was out of sight, which was a distance of several hundred yards. 

While Willie ran and was out of sight, I came back to the house and told John Barnett that Willie was not down there.  He said “he is nothing but a damn coward for running, but I will kill him before the sun goes down if I have to follow him to his home”.  I told him that settled nothing that if he killed Willie it would just enthrall him and get him into bad trouble.  He replied that he didn’t care about the trouble. 

I then went back top piling my strips and Amos Ervin and Roy Frazier and John Barnett talked awhile still longer.  Then Amos and John went across the branch where there was a large block and set down.  Roy Frazier went for his father, John Barnett having suggested it, to talk the manner over in a friendly spirit or manner.   Something like 30 minutes later as I was still working with the strips, and Amos Ervin and John Barnett were still together on the board, I looked up and saw Creed Frazier, Mahone Frazier, Willie Frazier and Roy Frazier coming toward the sawmill set.  Creed and Willie Frazier were carrying shotguns. 

I could see the Frazier’s and Barnett both and were watching them.  When the Frazier’s got within about 40 yards of Barnett, he saw them and ran toward the barn which was a distance of about 10 to 12 yards, he ran behind the door shutter.  While Barnett was running to the barn, Creed Frazier raised his hand with his palm extended toward John Barnett, and told him not to shoot, that he had come to talk the matter over with him.  John Barnett ran to the barn door shutter, got behind it and fixed his gun to shoot.  The barn door which was swinging out, and was at least 18 inches above the ground, exposed Barnett’s legs all of the time.  The Frazier’s could have easily shot Barnett while he was running to the barn

John Barnett came out from behind the barn door and shot creed Frazier in the left chest with the 45x90 caliber rifle.  When Barnett raised his rifle to shoot Willie Frazier, Willie started running toward the opposite end of the barn where he would have protection.  When Creed Frazier was shot, he yelled and said, “Get out of the way boys or he will kill all of us.”  Willie then turned and Roy Frazier likewise and ran in the direction of their father who had fallen and was lying on the ground.  As Willie got just beyond where his father was lying, John Barnett shot him through the back and killed him instantly.  He then shot another shot at Roy Frazier, who had got behind a rock having falling flat on the ground, and barley missed him.

When the shooting was over, everybody there immediately surrounded Willie and Creed.  As I reach Creed Frazier he ask me “What in the world did John Barnett mean coming up to their place of business and doing this way”.   He then request that his legs be straighten out and for a pillow and about that time someone remarked that John Barnett was going to shoot him again.  I looked around and Barnett had left the barn and had come within 10 yards of where Creed Frazier was lying.  He had his gun in his hand with the muzzle down in a menacing way and his hand on the trigger.  I raised and look over toward him and said “If I were you John I would take that gun and go back into the hill, you have killed Willie Frazier and Creed is just about dead”.  I did not see John Barnett after that day. 

Scott County, to-wit:

Subscribed and sworn to by J.H. Ervin before the undersigned Richmond Bond, commissioner in chancery for the Circuit Court of Scott County, Virginia, this the 31st day of July, 1941.  

This is the affidavit Roy W. Frazier taken at Gate City, Scott County Virginia, on July 30, 1941.

My name is Roy Frazier and I am 25.  I live in Scott County Va.  Near the town of Gate City.  I was present when John Barnett show and killed my father, Creed Frazier and my brother, Willie Frazier, in Scott County, Virginia, on the 20th day of September 1927.

I was driving a truck to the sawmill set at Amos Ervin’s farm in Scott County, Virginia, on the occasion when the shooting happened.  I was working for my father and my brother who were operating the sawmill set.  I came upon the sawmill a few minutes after 2 O’clock to the best of my recollection.  Amos Ervin and John Barnett were setting on a log.  John Barnett was armed with a pistol and a high powered rifle.  I took my truck down to the boiler where Willie Frazier was.  When I got there Willie told me that John Barnett was heavily armed and he said Barnet said when he had walked up there, “Is any damn man here wanting to die”.  To which Amos Ervin answered that he did not want to die, and Willie said, “Roy he was aiming that at me”. 

I thought I could talk John Barnett out of it and that he did not have anything against me, so I started up n the direction he was and when I did that, he started toward me with his rifle in his hand in a shooting position, but he swerved around toward the boiler where Willie was and I went that way too and got there about the same time he did.  He said to Willie “I am going to kill you”.  Then I raised my hands and got between Willie and John Barnett and begged John not to shoot Willie.  I told him that Willie had a wife and 6 small children and that if he wanted to shoot someone shoot me.  I reminded him that he had a good wife and a good mother and kept begging him until he finally backed off with me in front of him and we went to a log and set down on it.  I talked to him for some time and then he ask me to go over and with Mr. Ervin who was setting on the porch of Amos’ house.  Mr. Ervin had been tipping strips but when John Barnett and I started toward one another, he left the strips and had gone to the porch and was setting on it in a chair. 

John Barnett finally agreed to talk to J. H. Ervin and we went over there.  I walked several step in front of him and went to the house and set down on the steps. John Barnett came up to the road some 16 or 29 steps from the porch still carrying his guns and stopped.  Mr. Ervin finally persuaded him to come into the yard so he could talk to him.

Mr. Ervin begged him to behave himself and not bother Willie and told him Willie has a wife and small babies and that Barnett had a wife and some babies, and Barnett said “Damn the babies”.  Finally Barnett asked Mr. Ervin to go down and get Willie to come up to the house where he was.   Mr. Ervin said that he would go if Barnett would turn the guns over to me or Amos.   John refused to do this so Mr. Ervin said he would go and talk to Willie.  He got up and went toward the mill where Willie was and I followed him out there.    When we got there Willie was down below the mill a few steps and I motion to him to go away, and he ran down the hollow out of sight.  Mr. Ervin and I then went back to the house and Mr. Ervin told John that Willie was not there, and John remarked that Willie was a damn coward to run away but that he would kill him before sun down if he had to go to his home and do it. 

Afterwards Mr. Barnett told me to go and get my father and bring him down there and that they would settle it in a friendly way.  My father was working in the woods where they were logging and I went after him and found him.  I told him that John Barnett was down at the mill armed and was trying to kill Willie.

Barnett had been in the woods where my father’s hands were cutting timber that morning and had threaten to kill one of his men by the name of Doyle Head.  Father had taken his shotgun to the woods when he had heard about Willie. 

My father and I started out to hunt Willie and meet him and my Uncle Mahone Frazier about 5 to 6 hundred yards from where the shooting occurred.  They had come off a spur, saw us and hollered to us.  Willie had his shotgun with him.  Mahone and I were not armed. 

We four talked it over for awhile and my father said, “I don’t think John Barnett had got a thing in the world against me.  Let me go up there and talk it over with him”.  We walked on up there and when we got almost to Amos Ervin’s house, John was setting on a board block and saw us and started running to the barn with his gun.   My father threw up the palm of his hand and said, “John, don’t, don’t shoot us, I want to talk this over with you.”   My father or Willie either one could have easily shot and killed John Barnett while he was running from the block to the barn.

The barn door was swung open and John got behind it and came out and shot my father who said, “Run, boys or he will kill all of us”.  Papa was in front of Willie and to a little piece and when he was shot and he figured we could run around behind the barn and get away, but when he said for us to run or be killed he turned and ran past where my father was lying, just then John Barnett shot Willie in the back.  I knew that he was going to shot me then so I threw myself to the left, falling on the ground behind a pile of rocks and John Barnett shot just above my head.  The concussion numbed my jaw, the bullet came so close that it drove out a groove in a fence rail right at my head. 

When the shooting was over Charlie Good shut down the mill and the men begin gathering around my father and Willie.  I looked and thought I saw my father raise one of his arms and I went up to see if I could help in any way.  I knew that Willie was dead because I passed him getting to my father.   Henderson Wolf and Mr. J. H Ervin and I looked toward the branch and John Barnett was there and yelled at me saying, “ Damn you, I haven’t got anything against you, but don’t touch that shot gun”.  The shot gun had falling over the railing. 

John Barnett came up to where my father was lying and Mr. Ervin and Mr. Wolf were begging him to go away and he said to my father, “Damn you, if you haven’t got enough, I will give you some more”.  Mr. Ervin said John why don’t you take that old gun and go away from here. 

He finally left and went back to the barn, in the direction from whence he came down there.  He went to Charlie Robinett’s and gave up, and he brought him on back and took him to the Gate City jail. 

Marshall Frazier was a witness for the defense.  Direct Examination

By Mr. Cox:

Q       Mr. Frazier where do you live?

A       In Wise County

Q       Were you acquainted with Mr. Creed Frazier in his life time?

A       Yes, Sir.

Q       Were you in any way related that you know of?

A       Not that I know of.

Q       State to the jury if you had a conversation with Creed Frazier in reference to the Barnett’s and if so state when it was, where it was and what he said about them.

A       Well, I do not recollect what time it was, it was about five days before the killing took place.

Q       Where was it?

A       Down here at Speers Ferry at his lumber yard.  I ask him who lived at the old Noblin place, that was my old home place, and said didn’t no one live there, he did not own it that he sold it to Mahone Frazier.  I ask him if he had a place that he could rent to me, and he said “Yes I have Marshall”.  I says “Where is it at” and he says up here on the branch, the old Aunt Peggy Barnett place.”  I says “Creed” I don’t want that”, I says “They tell me, some of the brother in laws, tell me you and the Barnett heirs are in trouble over that, and I don’t know trouble, and he says, he looked right at me “ If that is what they are after.  I can give them trouble and damned bad trouble.”

Cross examination by Mt. Vicars

Q       Where did you say you lived?

A       Appalachia, in Wise county.

Q       What do you do?

A       Just work around there in the town.

Q       What are you doing over here?

A       I had been here to rent me a farm to farm this year.

Q       You are going to leave town and go to the farm?

A       Yes, sir.

Q       How happened you to approach Mr. Frazier for that purpose?

A       I was down at my brother’s sons and he told me Creed Frazier owned a whole lot of land and he said he was satisfied I could rent from him better than anyone else.

Q       Who brother’s son?

A       Bud Frazier’s boys.

Q       What relations are you to Mr. Barnett?

A       Not any but a little that I know of. 

Q       What is that little?

A       About fifth cousins I think.

Q       Who did you tell about this first?

A       I believe I was telling old man Tom Templeton in Appalachia.

Q       Tom Templeton?

A       Yes and Joe Barnett.

Q       What interest does Tom Templeton have in this?

A       We were talking about it after Creed was killed.

Q       What was said about it to Jon Barnett?

A       Joe Barnett happened to be where he understood what we were talking about.

Q       How did Joe and Tom happen to be together?

A       Me and Tom Templeton were talking and Joe was pretty close to us, I did not know Joe then. 

Q       You cannot account for the presence of you, Joe Barnett and Tom Templeton all together on this particular occasion?

A       I didn’t know Joe was there.

Q       But he happened to be near by?

A       Yes, sir.

Q       When did you say you conveyed this information to the gentleman?

A       Well is was some day or so after Creed was killed.

Q       And it was in the town of Appalachia?

A       Yes, sir.

Q       And when was he killed.

A       I don’t know just when he was killed.

Q       In what month was it that you were looking for the land you wanted to rent?  Was that about the time to put out a crop.

A       No sir it was no time to put out a crop.  It was just five days before Creed was killed.

Q       When was that?

A       Well now I don’t recollect now just when it was.  It was in October     or November or some where along there.

Q       October or November of this last year?

A       Yes, sir.

Q       You know about Thanksgiving days, was it before or after Thanksgiving day?

A       Well, I could not tell you.

Q       That is a holiday?

A       I never pay any attention to anything like that.

Q       Didn’t you pay attention to Thanksgiving day?

A       No sir.

Q       How long was it before Christmas, Christmas comes the next month after the month in which Thanksgiving Day comes usually I believe?

A       It was directly after Christmas.

Q       This conservations occurred directly after Christmas?

A       Yes sir.

Q       About how long after Christmas Mr. Frazier do you think it was?

A       It must have been something like—Well it must have been something --.  I cam down here Saturday before Christmas and that was about Monday or Tuesday after Christmas.

Q       This conservation occurred between you and Mr. Frazier on Monday or Tuesday after the last Christmas?

A       Yes sir.

Q       You are sure of that, are you, or, at least, it was only a few days after Christmas?

A       It seems to be it was.

Q       How long before Christmas did you come back to Scott County from Appalachia?

A       I came here on Saturday before Christmas.

Q       You are certain of that?

A       Yes, Saturday before Christmas.

Q       And a few days after Christmas you have this conversation with Mr. Creed Frazier?

A       I don’t recollect now.

Q       Give it as near as you can, just study over it and think over it and give it the best you can., Mr. Frazier, you best judgment.

A       I don’t know that that was the time I had the conversation that time.  I had been down here before that that we had the conversation that time.  I was here I just positively could not tell you whether it was before Christmas we had the conversation. 

Q       You know that you came over the Saturday before Christmas.  Now was it on that trip?

A       I don’t recollect if it was on that trip or the trip before.

Q       You just told me it was after that trip and you thought Monday after Christmas.  Now when was the other trip?

A       Well I think it was about two weeks.  I went home and stayed about two weeks and came back.

Q       The first trip was about two weeks before that, or two weeks before Christmas, was it?

A       I don’t recollect.

Q       Just think I want you to get it right as near as you can.

A       I want to get it as near right as I can.

Q       Oh, certainly we all want that.  How long before Christmas now was your first trip.  You know the other one was the Saturday before Christmas. 

A       I came on Saturday before Christmas.

Q       That was the second trip.  I want to know how long the other trip was before Christmas.

A       Well I could not tell you.

Q       Give your best judgment, was it as much as two weeks or one week.  Study about it, study about what you were working at home, maybe you can fix the length of time by how much you worked between the two trips, that might help you.

A       I believe that is was the same trip, that I made.

Q       I understand you think it was the Christmas trip, the time you came before Christmas, but, as you made another trip shortly before that.  I want to find out as near as I can when the other trip was, you only made the two, as I understand you. 

A       Yes

Q       Now, when was the other trip made as best you can fix it? 

A       It was the trip when I cam down here, when I cam down here on Saturday before Christmas.

Q       You are certain this conversation happened on that trip?

A       Yes I believe it did.

Q       But the other trip, was that as much as a week or two weeks before your second trip.  Study what you were doing along about Christmas time and a week or two before and see if you can place the time of the first trip.

A       I don’t recollect just exactly if it were two weeks or three weeks that I was down here the other time.

Q       Either two or three weeks but not exceeding three weeks, you are sure of that are you?

A       I won’t be positive about that.

Q       Where were you working at?  Let’s commence to get you self placed to remember these things.  What did you work at between the two trips?

A       I worked on the street in Appalachia. 

Q       At that work what were they doing?

A       They were concreting streets there. 

Q       How may pays did had you had, or had you had a pay day between the first and second trips.  You can remember about pay days, we all study about sundown and pay day, you know.

A       Some of them do and some of them don’t.

Q       Well, how many pay days had you had between the two trips, or had you had a pay day?

A       Yes, I had one.  They paid off every Friday night so for as that is concerned. 

Q       Oh, I thought you were getting paid every two weeks, but you got paid every Saturday night.  Now, tell me how many pay days you had between the two trips. 

A       I think I got two.

Q       Were you working regular putting in good time?

A       Yes tolerable. 

Q       You had two pay days and you got paid each week.  , then these trips were two weeks apart.

A       I think that is correct, the best I recollect. 

Q       This is what I am trying to get at, your best recollection about it, you are the only one who knows.  Who was with Creed Frazier when you had this conversation?

A       Some man with him, there were two men, I knew Dan Darnell, he drove up in a car and he and Mr. Frazier had a talk, the other man who was setting there with us I did not know him.

Q       You are satisfied it was the second trip that this occurred , and that trip was made over to your brother’s son, I believe you say?

A       Which?

Q       Are was it the second trip you came over to see your brother’s son?

A       Yes

Q       How long did you stay on that trip, Mr. Frazier?

A       I stayed over here.  I came on Saturday and went back home on Thursday.

Q       The conversation  then occurred between Saturday and Thursday?

A       With me and Mr. Frazier

Q       Yes, Is that correct?

A       The conversation that took place with me and him took place on Wednesday, and I went home on Thursday.

Q       That was the Wednesday then after Christmas and you did not go home until Thursday after Christmas?

A       No, Sir.

Q       You went home on Thursday and you now recall the conversation occurred on the day before you went back to your home?

A       Yes, Sir.

Q       What have you been doing since you went back home after this trip. 

A       Just working here and yonder.

Q       Did you go back to work on the street anymore?

A       No, sir, the street man quit work on account of the freezing weather, they could not work, and they went back home, and we have been working anywhere we could get a day’s work to do around there.

Q       The last work done on the street was done before this conversation occurred, they had to quit on account of the weather getting to cold to lay concrete or had finished.

A       No sir they had not finished.

Q       They quit on account of the cold weather?

A       Yes, still work when I came down here. 

Q       The weather got so cold they quit?

A       They worked a day or two after I went back. 

Q       Laying concrete?

A       Yes, sir.

Q       But the temperature kept getting low, and it got so cold and kept getting colder they quit.

A       Yes Sir.

Q       And you were getting a job here and there where ever you could since.

A       Yes Sir.

Mr. Vicars:  That is all, stand aside, Mr. Frazier.

John Barnett  (Sworn) testified:

Direct Examination

By Mr. Kennedy

Q       Where do you live?

A       I live down in the lower end of the county.   

Q       Near what town?

A       Near Sloan Town.

Q       How old are you?

A       I am 30 years old.

Q       Are you a married man.

A       Yes, Sir.

Q       Did you visit the saw mill at Amos Ervin’s on the morning that Creed Frazier was killed?

A       I was in the hollow, I was not at the saw mill, I was three to four hundred yards above the saw mill. 

Q       What did you come over there for John?  Just tell the jury about that trip. 

A       Well I had two purposes in going over there.  Amos Ervin had proposed to try and make a settlement with Creed Frazier about some land down there, and another thing, Will Frazier has called me a God damn son of a bitch a few days or a week or two before that as I was going to the store one morning, and I was seeking apologies of him.  I felt that was to much to take.  I had taken off the Frazier’s, of Will, all my life, and Creed had been mistreating me and my people for something like eight years.  I had sent folks to them different times and tried every way I knew how to get along with them, and this corn they spoke of was all I ever harmed them in the least, and that was four hills.  I just considered that was to much to take, just passing the road and I seen Will.  Before that I had gone to Mahone and told him --.

Q       Mahone Frazier?

A       Yes, I told him I tried every way I could to get along with them fellows and I says it seems like they will mistreat me and tramp on me in spite of everything that can be done.  I says I have got one more proposition to make them, tell Creed I said the longest day he lives to pass me on the road and say nothing, I will give him his side and take mine, you tell Will I said the same for him, to pass me when I meet him on his side of the road and I will pass on mine, and surely we could make it that way.  We went along with that for something like six months, and I started to the store one morning and met Will Frazier and George Frazier riding a horse and I was riding and he broke over there and call me a God damn son of a bitch.

Q       Did he have a gun on that occasion?

A       If he did he had it on. I suppose he had a gun but I did not see it. 

Q       Your business over there that morning was to get an apology for calling you a son of a bitch.

A       Yes, sir.

Q       And to try and settle this land matter with Creed.

A       Yes –

Mr. Vicars:  We object to those leading questions.  Let the witness testify.  We object to that your Honor.

The Court:   Go ahead and don’t lead the witness.

Q       Did you go back to the saw mill a second time that day?

A       Yes sir.  I learned from John Rhoton that Amos Ervin had not been around there that day snaking logs and he said that Will was not about there.  Mahone Frazier had been cursing me all the summer, he fell out with me because I would not help him curse(?) the Pearson boy he was trying to get to marry one of his girls.  Every time I heard from him it was all kinds of abuse, and I meet Mahone, and he had not spoken t me since the corn pulling time, since the corn was pulled up.  I spoke to him and he spoke, and I says “Mahone, I want to talk to you a little this morning” and he said “all right”.  I says “What do you and Will and Creed mean laying around the field over there where we were working, and he said “By God, he had not been over there”.  Well, I had been told that they laid there one day after my father, brother and uncle had worked there one day.  They came in and laid around the field the next day, and he tried to get out of it, and I says “Hep damn you don’t  know that I was looking at you”.  He says “you didn’t see me with any guns” and I says “I didn’t see you with any guns but don’t tell me that you were not over there” and he says then “I was looking for a logging job”.  I says “Now, Mahone, let me tell you something, so for as your lines go over there, it would be alright for you to log, but my advice to you is to stop when you get to your lines”.  He looked straight at me and says “By God, you got your big guns, I want you to understand one thing, the God Damn man don’t live that I am afraid of”, and I says “Mahone I don’t want you to be afraid of me”.  I says “if these guns are bothering you I will pitch them on the bank”.  He got in a hurry he did not have time to fool with me, been talking about five minutes, the mill was after him.  I says “If you had been logging the day you were way-laying my daddy and brother over there, you would have more logs out.  I walked back to the hollow with him about 200 yards I guess and talked along about this trouble and cursing and told him looked like all the summer was long enough and I was expecting him to hush, I didn’t want to hear him anymore.  I went back home then and worked until twelve in my fodder. 

Q       Had there been communicated to you any threats up to this time.  The Frazier’s made against you.  Creed or Will Frazier?

A       I don’t know as any body has ever told me they heard them say they were going to kill me, but I had been advised by different and different men they were going to kill me.  I never would ask a man how they knew nor nothing. 

Q       Had Amos Ervin told you anything about what Creed would do to you?

A       Yes Sir, Amos Ervin –

Q       You need not go into details on what any of them told you at this time.  Begin at the time you left home to over there, the time you got there just after one o’clock. 

A       Well, I eat dinner near twelve o’clock and started over there.  I went down to the sawmill and Amos Ervin, Will Frazier and Jim Ervin were standing like they might be having a conversation or doing something like that on the right side of the mill.  I believe somewhere along there.  I walked down to where they are and said come here to Amos and Amos started up toward me, and I said Amos don’t come to close to me.  I aint taking nobody to be my friend today.  I don’t want anyone close to me today.   I started back and he did not come any closer, and we walked up near the barn and set down, and I says Amos, Willie Frazier has called me a God Damn Son of a bitch over here across the bridge and I says I have taken off Willie Frazier all my life.  I took off of him and we have fought and almost killed one another.  I says I have never caused any trouble in my life, he raised every racket we ever had from boys right on up.  I never raised a racket in my life and I says Willie Frazier is going to take that back and I says “Will you go down there and tell him that I said he can come in the length of this log we are sitting on to me and make apologies to me about that”.  He says I will and went down to where he was and stayed there a minute or two and he came back and said he didn’t want to come and I will tell you what he told me, he said to him, “John wants you to make apologies about some talk you had across the ridge”, and he said I believe if you don’t he will kill you and he said he said he might come up after awhile.  I says “he is going to take it back and I got up and started down that way.   Amos says if anything happens” – First he says I don’t believe Billie has got arry gun”,  He called him Billie all the while.  He says then “if anything happens I don’t want to see it” and he walked over and set down on the portico.  I walked around to the left side of the mill across the logway and about the time I got over to the foot of the hill on the other side I saw, I noticed Roy Frazier down about the boiler and Roy came out and came walking up to be.  When he got up in a few steps I says “Roy don’t come ant closer to me “ and he says “John, Willie is afraid of you” and I says “is he” and he says “yes”.  I says he was not afraid of me the other morning when I meet him over there you know going to the store, I says “I don’t aim to bother Willie  all I am asking Willie is that he take back what he said to me and that will settle it.  He says he is afraid of your guns.  I say these won’t bother him.  He says lets go over and talk it over with Amos, maybe he can do something with it and I says “Amos went to him once”.  We started over to the house and I don’t remember but I think Roy Frazier was the man that asked Amos to go to Willie.  He says “I went to him once and I am not going to him any more”.  Jim Ervin or Roy Frazier one went down there, maybe both of them.  I believe both of them went down to the saw mill and they came back to the house and they said Willie is gone.  I says now “don’t you see he is a coward”.  Me and Amos had a conversation sometime ago and I told him “Willie will fight like hell if he had a lot of backing.  If he did not have any backing he would not fight at all.  I says don’t you see he is a coward and Amos said I guess he is in the brush.  We sit there and talked over the long string of trouble we have been having.   I would not begin to tell it and the old man Ervin and Amos went back to the sawmill and Amos says “You and Roy sit there as long as you want to and they left us sitting there on the steps.   

Q       Now John you said you told Amos about all the trouble that had been giving you  -- repeated over to Amos what trouble the Frazier’s had giving you while you were on the steps. 

Mr. Vicars: This question is objected to because he is leading and suggestive to the witness.

The Court:  Go Ahead

Q       Did you repeat all the things the Frazier’s had done to you?

A       No Sir we had talked a great deal before that.  That was our conversation generally when we were together.  Amos has been in Kentucky and just been back about a year and the most of the time we were together the Frazier’s were the conversation we talked about.

Q       Go ahead and tell what agreement or talk you has with Roy.

A       I commenced to explain to Roy about this way laying first.  I say Roy you are a man of sense and I says “Don’t you know this Peggy farm over here aint worth a bunch of folks going to their grave over and he say yes I know it is not.  I says “It looks to me like it is right up to the brink of something to be done or somebody is going there”.  I says “I can’t afford to have people laying around watching for my daddy, brother and uncle”.  I have begged them to give it to them.  I says “You never had nothing to do with that down there, and I says if the Frazier’s could live with it we could live without it and I put that up to my daddy “To give that to them the first you knew they would be wanting more.  I told Roy that I never as I remember cut a fishing pole or riding switch on that place and I says every time he gets into it with daddy and uncle Joe he jumps to me.  He sent me notice the other day to get the fence down from around the grave yard.

Q       Wait a moment.  (hands papers to witness) I hand a paper in writing and will ask you if that is the notice to which you refer.

A       I suppose it is. 

          Mr. Kennedy:  We want to offer that notice in evidence.

          Court:  All Right

Q       Mr. Barnett, read the notice to the jury.

A       T E Barnett, John Barnett and Joseph Barnett:

          You and each of you are here by notified not to go on or trespass on any of my land in Scott County in any manner.  You are further notified to remove the fence you have placed around the grave yard on the Pheobe Barnett land and all trespasses by you or wither of you will be prosecuted to the fullest extent of the law.  Given under my hand this 26th day of July 1927.  Creed Frazier

Q       (handing paper to witness) Have you also seen that letter from Creed Frazier?

A       Yes Sir, I was the first man who read that.

          Mr. Kennedy:  We want to introduce this letter in evidence to the jury.

          The Court:  Go Ahead

Q       please read it.

A       Gate City Va. December,  24, 1926.  T E Barnett, Dir Sir:  I hereby notify you not to trespass on me in any respect you and you folks and renters stay off my possession, walking or riding or traveling anyway.  You have been cutting my timber, the mystery to me if you had any right there, why you get out of the way before I get there and this give you warning you better know you have a right there before you come there again.  I bought that land and paid for it and get possession of it and you know it.  Creed Frazier

Q       Go ahead and tell the conversation you had with Roy Frazier.

A       I says, Roy, you know, I know and every body in the county knows that Creed Frazier never bought that land.  Creed Frazier has no right to that land.  All in the world that he is trying to hold it on is his bad name.  A bad name is a pretty good thing to get a man killed but it is a darn poor thing to try to hold land on.  I says Roy you could not spend a day any better then to talk to your daddy and brother and try to get this thing settled down.  I says if you want that land over there I can buy it cheaper then anybody in this country and if he wants the timber on this land or my father’s land I will but it cheap.  Roy I will actually cheat them to get the thing settled.  He said he would do his best, he will see daddy that night.  He says I will tell you what to do you come back over here in the morning about eight o’clock and I will bring Willie and papa.  I says now Roy, Creed Frazier has been sent to, been man sent to him, and a big string of cursing and abuse is all they ever got, they told no later then two or three days ago that he did not fear death, hell or no grave and that he would have that land or sink his soul into hell, he had no little children to look up to him for bread.  I say I have two looking to me for bread and Willie’s got a bunch looking to him for bread.  I say I don’t put myself before Creed Frazier for nothing.  I expect Creed Frazier to stick to the proposition the longest day he lives.  We have passed different times and have not spoke yet.  I consider Amos Ervin a friend to both.  I rely on anything he says.  If he will serve between me and Creed Frazier I will go into it with you.   Amos was setting on the log below the barn and he says let’s go over and see what he says about it.  We went over and one of us said Amos, I don’t remember which one of us it was, “How about serving between John and Creed and try to make a settlement of the trouble, getting the trouble settled over the piece of land.  Amos says “I will serve and do anything I can to get it settled”.   Roy says “I have to go to work, the truck has been standing now for a long time”, or something like that and he started down to the sawmill where his truck was.

                    I noticed him and Mahone standing down there.  In a few minutes he came back to where me and Amos were.  He said John, if you will wait until I can go and get Willie you fellows can settle this trouble this evening I say where is Willie at and he says up the hollow here.  I say I will wait if you will not be gone to long.  He started up the hollow.  Me and Amos kept setting around there.  Amos had his baby with him.  I took the baby and played with it for awhile.  I had given them out coming.  I didn’t know what to think.  He had been gone long enough to go to the head of the hollow twice and back and I practically got him off my mind. 

          I think Amos had taken the baby to the house and come back, or maybe Mr. Ervin took it to the house.  I was setting up on a block that had been out for some boards or something, and had the gun setting down this way (indicating, this big Winchester), just setting down holding it up between my legs with my back to the hollow where they came down.  I had just been talking to Morgan Seymour, he came up from the sawmill and went into the barn and started on his way back to the mill, and Amos, he was sitting or standing up.  I could not say which, anyway he was in front of me kindly toward the mill there.   What ever made me look around I do not know, I turned around and looked and when I turned I saw them coming.  Creed Frazier was in front, Willie next, Roy next.  I knew right then the thing was up.   

Q       Did you see them carrying anything?

A       Yes, Creed had a gun on his shoulder next to the palings, that would have been on his left shoulder.  The thought struck me to run through the barn and up the hollow.  I sprung to my feet and I made for that barn, and just about the time I got to the door, Willie made a dash around, I saw that he was aiming to cut me off at the upper side of it; I had got behind the door, it was standing back this way (indicating) the same as this was the door to the barn, it was standing back, straight back, I might have got a step behind that.  I saw that they were aiming to cut me off at the upper end.  I stepped back and when I stepped back I saw Creed had the gun to his shoulder (indicating) and when I stepped back it looked like he was starting to bring it off.  I had mine in my hand one thumb on the hammer and finger on the trigger.  I threw it up and when I when I threw it up it went off.  I threw another shell in and by that time Willie was in sight and I threw it at him.  I threw another shell in and Roy was behind a rock trying --- I threw one at him.  He dropped down out of sight.  I dropped another shell over the rock where he went down; he came up form there with both hands and says “John, don’t shoot me”.  I dropped the gun and he ran down to Creed, never paid any attention to Willie no more then if he had not been there, he ran to Creed and fell down beside of him.  Down on his knees some way like this and he says “Papa, if you had listen to me, there never would have been nothing like this”.   I made my way across the branch a few steps, eight or ten steps, across the branch, I kindly bore up the branch after I crossed it. 

Q       John, let me call your attention to right before you left to back across the branch.  Did you make any effort or anything to shoot Creed again, when you went across the branch close to him?

A       I never made any effort to shoot him. 

Q       Tell the jury what you did do and what you said.

A       He was lying there and he has his feet kindly up this way (indicating) and I knew he lacked a lot of being dead.  When I walked over there he turned his head around and looked at me commenced moving one hand or the other around and I thought he was trying to gat a pistol off his side.  I says “Aint he got enough?   If he aint, I can give him some more”.  There were five or six, I won’t say how many three or four, a number of them there, they said “don’t do it, don’t do it, don’t shoot him anymore, don’t shoot him anymore”.

Q       What did you go across the branch for?

A       I was afraid Roy was aiming to grab the gun.  I could not see very plain from where I was at.  I watched that gun close that nobody didn’t pick it up.

Q       Now, go ahead to where we where when I called you back.   You had left there and gone across the branch.

A       Amos Ervin came up to me and he says “if I was you, I would leave before Mahone gets here”.   I don’t know that I made him any answer.  He went to get a pillow I think for Creed, he went to the house to get a pillow for Creed and I decided it would be a good idea for me to go away and let them take charge and not bother them.  I went a little ahead and says “Tell Amos as quick as he gets his wife settled down for him to come up the hollow, I will go up the hollow a piece, for him to come up there.    I started and when I started Amos came out of the kitchen door and down the hill, he called me several steps away.  He Says “John, what you aiming to do” and I says “I have not made up my mind yet, I will give though I suppose”.  He says “Well give me your guns then” and I says “I can’t afford to give my guns up here”.  He says “I won’t go with you if you won’t give me your guns”.  About that times he says “There comes Charlie Robinett, gibe up to him, my wife is excited to death”.  Charlie Robinett walked on up and Amos says “I was trying to get John to give up to you”.  I says “I will give up to anybody, I don’t like the idea of giving my guns up until I get away from here”.  I finally decided to give up the guns and take chances on getting out without getting hurt.  I gave him the guns and we started off to jail.  We went down to the river and across the river and up to Speers Ferry and Sheriff Palmer had heard the news and Charlie Robinett left me two to three hundred yards down the river, gave me back the Winchester, and said he would come up there and get someone with a car to bring us to town.  He came back and said he had good luck, he ran into Sheriff Palmer at the bridge, and so we came on. 

Q       Why did you shoot Creed Frazier? 

A       Because I knew if I did not shoot him he would shoot me.

Q       Were you expecting to see Creed Frazier come there?

A       No Sir, I had no idea at all of seeing Creed Frazer that day.

Q       What did you think when you saw four men coming there armed? 

A       I thought they would kill me: I knew they would not be there that way with any other intention.  A man who had the conversation with Roy that I had about one hour before that would know they would not come here in that form with them guns with any other intention but to kill me.

Q       Did you have any reason to fear Creed Frazier any more then any of the rest of them?

A       Yes, I dreaded Creed Frazier worse then any man I ever saw; he was a dangerous man, he had killed one man, he had shot other men, he came down there at (blank on original papers) with a gun and kicked him all over the place, all around and beat him up.  I could hear of him beating up the prisoners when he was sheriff, it was general talk that he was a bad man, a dangerous man.  I heard lots of men say you could not take any chances with him.

Q       Tell the jury where and when you got that big gun they talk so much about.

A       Well, that big gun, I went to the store, Bob Frazier’s store and Amos Ervin was there and when he started to leave the store, we walked out in the road and he had some shells for this gun in his pocket and he pulled them out and says “John would you like to have the gun that shot them” and I says I don’t know, and he says “I will sell you the gun that shoots them awful cheap”.   I says “I have been thinking I might buy a thirty-two savage, a 30-30 Savage to shoot fish with, I saw one the other day I thought was the best I ever saw.  I was asking him about it, asked him where it was and he said up at Lee Head’s.  I told him I might trade with him.  He went on down the road but waited for me and we went to Head’s and got the gun and he went home with me and I tried the gun out and bought it.

Q       How long was that before your difficulty with the Frazier’s?

A       It must have been something like six weeks.  Well the next day I did not have all the cartridges, he had eleven cartridges up there, part of them were at home, he says I will bring the rest of the cartridges tomorrow, and that was on a Sunday, and he came over and brought the cartridges;  he says “now John let me tell you something”.  He says “Creed Frazier and Willie are going to kill you if they get a chance”, he says “Let me tell you what to do, you keep liquor out of you, enough to bother you”.  He says “A drunk man can’t fight, I would not give one sober man for two drunk men”.  I says “ Oh, Willie, I don’t think he is so bad”. I says “He will fight like hell if he has the advantage on you”.  He says “I will admit he is a coward, but he will kill you, I know him, he tried to get me to help him kill a man in Lynchburg one time, and you know Creed killed one man” and I says “Yes, in the bed” and he says “you know a man who will kill a man in the bed will kill one up and walking around.

Q       How many cartridges did Amos let you have?

A       Eleven, we shot two of them the day I got the gun.

Q       After you had the conversation with Roy Frazier and agreed, as you have stated, to get to gather and settle it, you and he and Willie Frazier, did you have any expectation of meeting them and having trouble with them that evening?

A       I was not expecting any trouble.   Of course I was not expecting nothing hardly only trouble at any time I stepped out.  I had become afraid to go to sleep at home I had been warned so much about them I was actually afraid to lay down in my bed and go to sleep.

Q       Had you and Roy Frazier left friendly?

A       Yes, friendly as ever I saw anybody.  Roy would boil up when I would say lots of things, but not in his words, I could tell it was hurting a whole lot but he took it all. 

Q       Did you know that Creed Frazier was in that section?

A       No sir, Roy talked to me like Creed was at home.

Q       When did you expect, if at all, to have a conference with Creed and Amos as a go-between?

A       I was expecting to see Amos the next day, I was not expecting to talk at all with Creed Frazier.

Q       Did you meet Morgan Seymour sometime before this difficulty and have a conversation with him about the Frazier’s?

A       Yes, Sir.

Q       Tell the jury what you said to him.

A       I had started to work one morning or stared to find a job of work, and I meet Morgan Seymour over in the valley from my home, and he told me the job that I was going to was not started that day.  It was right close by to where he lived, and I turned around and came back across the ridge with him.   He told that I could get a job over here from Charlie Good, right at home, and I says I would like the best in the world to work for Charlie, but I says the Frazier’s don’t like me, we don’t have nothing to do with one another, and that is their lumber and timber and I would not feel right going in there and working any.  I says I could get a job with Good alright, but they would not want me over there I didn’t guess and I would not work over there on that account.  He says they are into it over some land down there, ain’t they?  I told him “Yes, the Frazier’s tried to take some land away from Joe Barnett, trying to give him some trouble over it some way I thought”.

Q       Did you make any threat against the Frazier’s to Seymour on that occasion?

A       No Sir.

Q       Did you or not have a chance to kill Willie Frazier there at the sawmill before he left there.

A       Yes, I could have killed him anytime after I went there until I started to the house with Roy.  If I had wanted to.

Q       Tell the jury whether or not you intended to hurt Creed or Willie Frazier on that day?

A       No, Sir.

Q       If you could avoid it?

A       No sir.  I had no intention of hurting them.  My idea was that Willie would take back the God Damn Son of a Bitch and then I was aiming to warn him about way-laying my daddy and brother.  Then I aimed to explain what lay-waying folks would lead to.  He refused to act at all.

Q       Did you have any other reason for firing when you did fire your gun at the Frazier’s except what you have already said?

A       No sir none whatever.  I saw no other way of getting out of there.

This section if from the cross examination by Mr. Vicars:

Q       Mr. Barnett, I believe you have read in evidence a formal notice given to you and your father not to trespass on the lands claimed by Mr. Frazier, and also a letter requesting you not to do so.  Is that the only letter that you have got?

Mr. Kennedy: Mr. Vicars there is another question I would like to ask him in chief.

Mr. Vicars: Very Well.

By Mr. Kennedy

Q       How long had you or your people had this grave yard fenced and in possession and used as a grave yard?

A       I don’t know. I am 30yrs old and raised within two hundred yards of it and it was fence when I could first remember.  It had been made larger about fifteen years ago. 

Q       And was that done before Creed Frazier laid claim to the land over there and bought it?

A       Yes sir.

Back to Mr. Vicars question.

Q       What other letter did you get from Mr. Frazier, or did your father get from him about this matter, besides the ones you read?

A       I could not say, it seems like we got several letters from him.

Q       Did you turn them over to your counsel?  Didn’t you turn over to your counsel some other letter other then the two you read?

A       I do not know.  I never turned them over.

Q       Your father showed you a letter?

A       Regarding that land?

Q       Yes?

A       I remember one that he showed me from Mr. Coleman that Creed Frazier had no right to the land. 

Q       I am talking about a letter from Mr. Frazier.

A       I can’t say that he ever showed me any more letters.

Q       Didn’t you get one in February 1927?

A       I seems to me more letters were written, but I can’t say, I never paid any attention to the letters, to the number that they get.

Q       How did you just happen to bring this letter written in December, 1926.  Didn’t  you have letters from 1927?

A       I can’t say.

Q       I show you a copy of a letter that was written to your father on 5, February, 1927 and ask you and what your father did with the original of this letter?  You saw that didn’t you?

A       I will tell you in a minute if I remember it.

Q       All right look at it and tell me if you saw it?

A       (looks at paper) Yes sir.

Q       You saw this one?

A       Yes sir.

Q       Read this letter to the jury the date of it and all.

A       Gate City, Va. February 5, 1927.  Mr. T. E. Barnett, dear sir, I saw Mr. J. H. Ervin today and ___ I do not think I can read this writing in here.

Q       “And he said you wanted to buy”?

Mr. Cox:  Do you know if that part was in it when you saw it or not? 

Witness (Barnett):  I didn’t remember.

Q       Go ahead and read it.

A       And he said you wanted to but the heirs in the land that you claim and interest in and also compromise with me.  I have bought this land once and paid for it, and you fellows got the money and I don’t think it is right to pay for anything twice.

(Letter was read to the jury, it is now in the hands of the Clerk, it is long, and will not be copied in here at this time.

Q       Mr. Barnett, your father showed you this letter of February 5,1927, about the time he received it, I presume?

A       I saw something similar to that I cannot state that it is this letter, but I read something similar to that.

Q       But when was it you read something similar to this?

A       I could not state that.

Q       In this letter I notice Mr. Frazier says “ I would rather have your friendship then to have trouble”.

A       That was his way of getting by, he was getting the land and everything.  If we accepted that he was getting the forty acres of land that he had no right to.

Q       He says I would rather have your friendship then to have trouble, and “I did not think it was mine I would not claim it.  I have always treated you all right.  I let you extend the grave yard out and make it larger enough to bury the whole Barnett generation”.

A       No sir, he never done nothing like that.

Q       Did you enlarge it?

A       Not after he owned the land around it.

Q       He said he owned the land from your line to the mailbox at the public road and allowed you to travel that road.

A       I suppose my father had traveled it all his life, I know I had. 

Q       He permitted you to go along and travel over it?

A       I don’t suppose that he could help himself.

Q       And further says “If you want to drop this and go ahead and treat be right, I will do the same and live as friends and neighbors as before”?

A       He could offer to do that.

Q       You did not want to drop it?

A       We wanted to drop it if he could act right about it, we didn’t want to give him everything we had to drop it. 

Q       You did not want to make friends?

A       Yes, we would have been glade to make friends, that letter looks fair and sense, and in another it is not fair.

Q       He says “If you want to travel over my land you can do so”?

A       Oh, Yes.

Q       “If you want to drop this and go ahead and treat me right I will do the same and live as friends and neighbors as in the past”.  Did you answer this letter or talk to Mr. Frazier after he ask you to drop the trouble and live as friends and neighbors?

A       He had my father in a close place, similar to having him in a jug ready to stop him up.  He and Mahone had land two-thirds around my father.   He was aiming to buy the rest of the heirs out, and I advised him to let it go and I went to Mahone--.

Q       I am talking about this letter.  Did you have any talk with Creed Frazier after he asked you to live as neighbors and friends and he would treat you right and live as in the past?

A       What I am aiming to tell you I had a talk through Mahone.  I suppose Mahone told him.

Q       He is talking about the settling the differences between you in a lawsuit in court, isn’t he?

A       No sir, it has never reach court.

Q       Here is what he says “If nothing will do you but to law, I can find as many loose places to give you trouble and you can me, nothing less than ten years will settle a land suit”?

A       He could always find something to law over.

Q       You did not propose the courts to settle your differences did you?

A       How is that?

Q       You did not propose the courts to settle your differences did you?

A       I did not propose anything about it.

Q       He further says if you want to drop this and be my friends, you are welcome to go over my land it is necessary and use the grave yard as you always have and more land, if necessary, for it.

A       The grave yard was already ours.

Q       He says if you want to drop this and be my friends you are welcome to go anywhere over my land it is necessary and use the grave yard as you always have and more land.  Why did you not answer him when he asked you that?

A       He never wrote me that.

Q       He wrote to your father?

A       I don’t know if he answered or not, I did not answer.

Q       He says this further, There are some more things I want to call to your mind while I am writing you.  I have understood by reliable parties that John Barnett intended to start a grave yard with me and Willie Frazier.  He said he was just obliged to kill me and is trying to let on like he was a crazy, and so on.  Why were you obliged to kill Creed?

A       I didn’t know anything about that.

Q       It goes on.  I understood once before when he and Willie had their little trouble he aimed to play crazy and kill Willie.  He further goes on.  It would not be so bad if Johnny started a grave yard with me, but for Willie, he has a family to raise and you are advocating something that would bring sorrow to more homes--, so I think you ought to teach Johnny something better than murder.  I know he is not crazy and you know it too?

A       He knows my father was not advocating nothing like that.

Q       It goes on.  His threats are very dangerous.  I want to stamp on your mind that that neither Willie nor myself have anything against any of you, and will leave it up to you whether you drop it and be neighbors and friends or not.  When he appealed to you in that way, why didn’t you drop the trouble, and if you wanted to settle the controverted questions about the title to real-estate, go into court and settle it and not buy big guns to kill with.  Why didn’t you take that course John?

A       We did drop it and my daddy quit fooling with it, meant to give the land to them.  As I told you awhile ago, if he could live with that forty acres we could live without it. 

Q       He is telling you what he is willing to do?

A       Then it went along for a long time and nothing more said, everything got quite and Uncle Joe came down there and bought the land and had the deed made for it and put on record and Creed came back on us the same as if we bought it. 

Q       Creed was asking you to let him alone.  If your Uncle Joe came in and bought what you claim was your title, what did you have to do with it?

A       Tell me why he came back on me when I was not buying it and I will answer your question.

Q       Is that the only way you can answer it?

A       Why did he come on me about the fence around the graveyard when I was not having nothing to do with the land?

Q       The graveyard is not on the disputed land.

A       No Sir, but the graveyard was expected when he bought the land around it.

Q       The graveyard is not on this land in dispute at all, is it?

A       No Sir, but the Barnett’s expected it when he bought the land down here at the front of this door.

Q       Why did you go over after you shoot Creed and Willie to where the bodies were lying?

A       I could not see plain from where I was at and I walked across there to see no one else wanted to start anything else.

Q       You had the big Winchester riffle 45 by 90, you were not afraid to walk off, were you?

A       I was not afraid to walk off, I did not think it would good to walk off as to stay there.

Q       You were studying what would have the best appearance?

A       I would not think it would look nice to shoot them then to run off.

Q       You had studied that out.  When did you make up your mind it would not look good to shoot them then run?

A       Just after it was done.

Q       You were cool and deliberated and thought it would look better to over to where the bodies lay?

A       I didn’t go to where they were at, I went about half way.  

Q       You say Creed moved one arm, which one did he move?

A       I won’t say he was moving different ways, head feet and hands.

Q       He was lying on his back and someone holding up his head?

A       Not at that time.

Q       He was lying ---.

A       He was lying on his back, no one hold his head up.

Q       You said his eyes were turned toward you?

A       Yes, as he looked at me he commenced to move one hand or the other this way (indicating).

Q       Which hand was he moving?

A       I won’t say which.

Q       He was lying on his back, his eyes opening and closing occasionally and while he looked at you, you presented the gun?

A       No Sir.

Q       Did you say if he is not got enough you will give him some more?

A       I said if he is not got enough – Aint he got enough, I can give him some more.

Q       Did you mean that?

A       I did not mean for him to draw any gun any more.

Q       You said if he wiggled around, you saw him trying to move one hand, you would shoot him?

A       No Sir.

Q       You never said anything about him wiggling around?

A       No Sir, I said if he aint got enough I can give him some more.

Q       You saw Willie lying out there on his face?

A       Yes Sir.

Q       And you saw his father’s eyes glance toward you?

A       Yes Sir.

Q       And you held that big gun up in your hand and said if he has not got enough I can give him some more and you thought it would not be nice to walk away and leave the men alone?

A       I considered it would be dangerous to leave there with all them guns there.  I considered every man there was a better friend of the Frazier’s then me.

Q       Why did you use the expression about Willie, that when you shot him he jumped like a damn rabbit?

A       I don’t know that I said that.

Q       Do you deny saying that to Charlie Robinett?

A       I may have said something about it or about Willie falling hard, that I knew Willie was dead that he fell so hard. 

Q       Didn’t you say to Charlie Robinett that you knew you killed him because when you shot him he jumped like a damn rabbit?

A       I don’t think I said it.

Q       What makes you think that?

A       I don’t think I did.

Q       Then you deny that.  You did not know he was killed, you knew the shock of a gun that caliber of that you were shooting would kill a person and when you went over there and saw Creed Frazier laying on his back, didn’t he look to you in an appealing manner when you look into his eyes lying there on his back, did that have any appeal to you at all.  When you looked into his face and said you would give him more, was there no appeal to you of humanity at all, just tell us?

A       They had treated me so mean and mistreated my daddy so bad that is was hard to have any feeling for them.

Q       So you had no feeling for them even under these conditions?

A       Certainly, to some extent.

Q       Then why did you say you give him some more if he has not got enough?

A       Because I thought he was trying to get the gun off his side.

Q       Don’t you know that you were not afraid at all? Why did you take that gun with you when you left home?

A       I was afraid to go without a gun any where.

Q       I want to know when it was that you made up your mind that you would go over there and that you were going to kill Creed and Willie Frazier, how long had you been studying that over before this?

A       I never made up my mind to kill them unless I had to, to save my life.

Q       When did you make up your mind that you were going to kill them, before or after you bought the big gun?

A       I never made it up until I was at the barn door.

Q       Why did you take the gun with you?

A       I took it for defense.

Q       Defense?

A       To protect myself with.

Q       Why did you tell Mr. Amos Ervin, Roy Frazier and even Mr. Sons that you would kill Willie Frazier in five minutes?

A       No Sir, I did not.

Q       You did not tell them?

A       No Sir.

Q       Didn’t you tell them you would go to his house and call him out and kill him?

A       No Sir.

Q       Didn’t you tell them men there on the ground that if you did not kill him that evening that you would go to his house and call him out and kill him?

A       No Sir.

Q       And if you did not get him there, you would get him as he crossed the ridge?

A       No Sir, I did not.

Q       Who did you expect to find up in the woods where they were logging, along the snake roads and haul roads?  I believe a snake road is a road where they drag logs on the ground.

A       That morning?

Q       Yes?

A       I thought I might see Willie Frazier up there. 

Q       It was you r purpose coming through the woods, you thought Will Frazier might be found up there.

A       This was a direct course from my house to Amos Ervin’s and I wanted to see Willie too.

Q       You thought you might find Willie Frazier up there looking after the work?

A       Yes, I thought he might be up there. 

Q       It was not a traveled road, they were logging on Mr. Ervin’s land?

A       Yes Sir.

Q       You did not find Willie up there?

A       No Sir.

Q       You got in the snake road and came down until you found Mahone Frazier, didn’t you?

A       Yes Sir.

Q       And there you abused Mahone Frazier right considerable didn’t you?

A       No Sir, I didn’t abuse Mahone at all.

Q       You deny the conversation that Mahone said you had with him, do you?

A       Yes Sir.

Q       Then you went back to the woods, didn’t you, back to where Mahone went?

A       I turned back and went part of the way up the hollow with him, and than I came up on top of the hill kindly and he went on up the hollow, I went up the road that went across through that way.

Q       There was no road out there where you saw Mahone and Doyle Head, was there.

A       In about thirty steps of the road that were.

Q       How long was it after you saw Mahone and Doyle Head talking until you went over there and had a conversation with Doyle Head?

A       How is that?

Q       How long was it after you saw Mahone and Doyle Head until you went over there?

          Mr. Cox:  That matter with Doyle Head was excluded and that is not admissible.

          Objection overruled --  Exception.

Q       How long was it after you saw Mahone up in the woods until you went and had a conversation with Doyle Head?

A       Just a tree top between me and Doyle at the time we were talking.

Q       Were you that close to Mahone?

A       I got to Doyle before Mahone.  I ask him to stop cursing me. I went up there thought I would see what he has to say, so I walked a few steps out of the road, a tree top between me, Doyle and Mahone came up and Doyle said “By God, I am afraid in here” to Mahone, that was all I understood that was said, and Mahone drove the grabs into the logs and after Mahone went out I walked around there above the tree tops.

Q       I am asking you what you said.  I want to know something about the facts here.  How close behind Mahone did you follow him?

A       Like Mahone came up the hollow this way, I went up to the top of the hill, several hundred yards apart.

Q       You could see him alright, Mahone?

A       No Sir, I could not see him.

Q       You knew where he was?

A       I knew he would go up to where Doyle was.

Q       You knew where Doyle was?

A       Not at the time I left Mahone.

Q       You had gone around and got behind a tree top and was in hearing distance at the time he meet up with Doyle and had the talk?

A       That one word is all I heard.

Q       I am not asking you about what you heard.  I am asking you where you were.  How close were you to Mahone and Doyle at the time Mahone and Doyle were talking?

A       About like the corner of the house

Q       You were behind the tree top?

A       Yes Sir.

Q       Tree top between you and them?

A       Yes I wanted to see what he would have to say.

Q       Were you hid in the tree top?

A       No, I just walked down behind it.

Q       How long had you been standing there at the tree top, behind the tree top?

A       We both got there about the same time.

Q       How long did you stay behind the tree top?

A       Two minutes I guess.

Q       You stayed there until Mahone left?

A       Yes Sir.

Q       You had already been up there and inquired about Mahone, Creed and Willie that morning?

A       I ask the timber cutters if they had seen Willie, that was all.

Q       You were drinking a little that morning when you were up there?

A       I had a drink before breakfast.

Q       And this was directly after breakfast that you were up there?

A       Yes Sir.

Q       About what time of day?

A       About seven o’clock.

Q       Did you know what time the men went to work and what Willie Frazier’s usual hour to get there is?

A       Yes Sir.

Q       What was the hour?

A       Seven o’clock is generally the time the sawmill fellows go to work.

Q       You got in before they went to work or about that time.  When did you take the drink in reference to that time?

A       I could not say what time it was, that morning sometime before daylight.

Q       How far did you travel through the woods to get in where these men were going to work at 7 o’clock?

A       Woods pretty much all the way from my house over there.

Q       You went through the woods nearly all the way?

A       Go through two patches of woods and one field to get to Amos Ervin’s.

Q       I am talking about what you did to get into the woods where Willie Frazier was accustomed to be and where his men were engaged in work.  You went through the woods all the way to that place?

A       No Sir.

Q       What road did you travel?

A       A path across the hill.

Q       Through the woods or field?

A       Through the woods and field too.

Q       How long did you stay in the woods where the men were at work that day.  I am referring to the first time you were in there?

A       From the time I got in the woods until the time I got out?

Q       Yes?

A       I guess forty five minutes.

Q       Then where did you go?

A       I went home.

Q       You came back to the mill yard that same day?

A       Yes sir.

Q       And brought the same guns with you?

A       Yes sir.

Q       Did you drink some more after you got out of the wood or drink some more in the woods?

A       No Sir, I didn’t have any whisky with me.

Q       Didn’t you get some whisky after you left the woods then?

A       No Sir.

Q       Weren’t you drinking under the influence of whisky when you came there at one o’clock?

A       No Sir.

Q       You were duly sober?

A       Yes Sir.

Q       You were duly sober on the evening and duly sober at the time you shot Creed and Willie Frazier?

A       Yes Sir.

Q       You knew exactly what you were doing?

A       Yes Sir.

Q       After the killings you told them you did exactly what you had intended to do or what you told them you would do”

A       No Sir.

Q       Didn’t you say that?

A       No sir.

Q       Did you tell them you were neither excited or scared?

A       I don’t remember that I did.

Q       What did you mean by saying to Mr. Robinett that you did some pretty good shooting?

A       I said as we come up the river, I says Charlie I don’t see how I ever got out of there alive.

Q       That is not the question?

Mr. Kennedy:  Let him tell the whole conversation.

A       Charlie says I do, he says you beat Creed to it, he is the only Frazier of the name that ever had any nerve.  He was a fool brave and I said I sure did some good shooting.

Q       Didn’t you ask him this question?  “Didn’t I do some pretty good shooting” and didn’t he say “You did better shooting then I could”?

A       No Sir.

Q       And didn’t you say that you ought  to, you had been practicing?

A       No sir.  I don’t remember telling him I had been practicing, but I have used a gun all my life.

Q       Hadn’t you been practicing on some trees?

A       I told Roy but I never told Charlie Robinett.

Q       Did you tell Roy that you had been practicing?

A       I told Roy that when Creed and Willie came on me with their guns they were going on a man that could use a gun, if he didn’t believe it I could show him the signs.

Q       What do you mean by signs, where were they?

A       Where I had been shooting.

Q       Practicing with this gun?

A       I never had any practice with this gun.

Q       How long had you been practicing?

A       With the big gun?

Q       Yes or with any gun?

A       I had a gun ever since I was a kid.

Q       You could show him signs, what kind of signs did you have reference to?

A       I could show him where I had been shooting at spots.

          Q       At long distance?

A       Right smart piece.

Q       Had you ever shot this gun before you shot Creed Frazier with it?

A       I had shot it four times.

Q       What did you shoot it at?

A       Shot it at three different trees and a chicken.

Q       When did you shoot it at the trees?

A       I shot once the day I bought it, maybe twice the day I bought it and then later on I shot it at another tree and a chicken one day.

Q       How long before you killed Creed and Willie Frazier did you shoot at the trees and the chicken?

A       What shooting I had done with it was the first few days I had owned it.

Q       You had owned it about six weeks?

A       Yes Sir.

Q       How many times did you take the gun to the woods where they were logging, how many times had you been in there?

A       I had been in there lots of times.

Q       I mean since they had been working up these on Ervin’s land?

A       I could not say, maybe six, eight or ten times.

Q       Did you take the guns in there with you?

A       Sometimes I would have a gun and sometimes I wouldn’t.  I had been in the woods squirrel hunting different times and then passed up and down there going fishing, and then when the threshing machine was through there I was there.

Q       How long had it been since you had been in the woods where they were at work before the day in which you killed Creed and Willie Frazier?

A       How is that?

Q       How long had it been since you had been in the woods up there where the men worked the day you killed the Frazier’s?

A       I had been in there squirrel hunting.

Q       Did you see anybody?

A       Patton Sloane.

Q       What kind of gun did you have?

A       Cheap shotgun.

Q       You did not go down to the mill that day?

A       No Sir.

Q       How did you happen to make up your mind on that particular day that the controversy between you and Willie had to be settled, that he had to apologize?

A       Well, I had been over balanced at the way they had done.  I could hardly control myself.

Q       How long was it before you killed Creed and Willie before you pulled up that corn?

A       That was about June.

Q       You pulled up the corn in June, Wasn’t it in July?

A       I could not say, surely it wasn’t, it never had been head.

Q       Who’s land was that on, was it on the disputed land?

A       No Sir.

Q       Did you do that in the day time or night time?

A       Day

Q       Who was with you?

A       By myself.

Q       How long was it you pulled up the corn until the conversation between you and Willie occurred about the corn being pulled up?

A       We never had any conversation on the corn pulling.

Q       Wasn’t that was what your conversation came up over?

A       When Willie called me a God Damned son of a bitch?

Q       No?

A       That was all that he said that I understood.  I went on up the hollow, up the hill, he was cursing at the time, he called me a God damned son of a bitch, we were both riding and I moved out a pretty part when he said that.

Q       Was that before or after you pulled up the corn?

A       I don’t remember.  I pulled up three hills of corn.  Of course I will admit it was a mean trick to pull up a hill.

Q       What did you do it for?

A       Just for meanness.

Q       You would not do anything mean would you?

A       It looked pretty shabby, a man pulling up a hill of corn.  Mahone owed me a half bushel of corn and I offered to give it to him.

Q       It even looked shabby to you?

A       I thought it was as a sorry thing as I ever did in my life.

Q       That was in June before you killed Willie?

A       Yes Sir.

Q       Did you apologize for it?

A       Yes sir.

Q       To Whom?

A       To Mahone’s son.  He is twenty one, it was his corn.  I went to him and told him I would pay him anything he wanted.  I say you owe me some corn, been owing it for three years. 

Q       Where you not trying to provoke a difficulty in ever way you could to get a pretext to kill Willie Frazier?

A       No Sir.  I was doing everything to keep down trouble.

Q       Then why did you arm yourself and go up to the mill yard?

A       I went up there to see if I could not do something to cause that thing to be stopped.

Q       Do something that would cause it to be stopped.  Stopped, what do you mean.

A       That fusing and rearing around?

Q       That is what you were trying to stop, the fussing and rearing around?

A       Yes Sir.

Q       You took the guns with you in order to stop it?

A       I took my guns to protect myself.  I had been warned by different men.

Q       If you were afraid, what was the use of you going to where you would find the men that you were afraid of?  Why did you go right to where you would expect to find the men you were afraid of?

A       We were all mixed up together.  You did not know what day you were going to see them or where.

Q       I believe you stated you notified these men that you wanted to see, not even speak to you?

A       I had, but Will Frazier had broken over, he would not stand for it.

Q       And then you armed yourself and went to stop the dispute?

A       I went to ask him to take it back.

Q       Did Mr. Ervin plead with you and refer to Willie’s little children and to your children and did you say to him, God damn the little children?

A       No sir I didn’t say that.

Q       Did you hold up your fingers and say, one, two, three, there will be orphans tonight?

A       No Sir, I didn’t say that.

Q       You deny that?

A       Yes Sir.

Q       Did you say that you would go to Willie’s house and call him out and kill him?

A       No Sir?

Q       Did Mr. Sons, your wife’s step father , tell you to go back home and stop this, not to have any trouble, and didn’t you refuse to do it and you would kill Willie Frazier in five minutes?

A       No Sir, as I passed he said you had better go on home.

Q       Didn’t all these men, Mr. Ervin –

A       No Sir.

Q       and Amos and Mr. Sons your wife’s step father beg you to go away?

A       Sons asked me to go away and he is the only man that ever asked me to go away.

Q       Didn’t he tell you he was a good friend of yours?

A       No sir, he didn’t say that as I understood.  As I passed he mention about going home.  I didn’t pay any attention to what he said.

Q       Why didn’t you pay attention to him?

A       I didn’t think he knew my business.

Q       Didn’t you think he could give you good advice?

A       No Sir, I didn’t consider him any friend of mine.

Q       You did not consider him a friend to you?

A       No Sir.

 

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