Rulings from the appeals

Tom Dooley's case was appealed twice to the North Carolina Supreme Court. First time after he was found guilty in October 1866 and second time after he was found guilty once more in the Court of Oyer and Terminer  in January 1868.

The Supreme Court resided in Raleigh just as it does today. The Supreme Court has no jury and makes no determination of fact, but only decides whether errors has been made in legal procedures or in interpretation of the law. The decisions of the Supreme Court can't be appealed further witin the state's judicial system. This is true today, as it was in the 1860's. The court is led by a Chief Justice, today assisted by six associate justices, but until 1868 there was only two associate judges, which was also so in January when Tom's case was appealed for the second time.

In 1866 as well as in 1868 Chief Justice was Richard Mumford Pearson. Pearson was born in 1805, and lived most of his life in Yadkin County, the eastern neighbor of Wilkes County, where the murder was committed, and the northern neighbor of Iredell County, where Tom was convicted and executed. He worked as a lawyer and was a member of the state legislation before being appointed as a Supreme Court associate judge in 1848. At that time all the supreme court judges including the Chief Justice was appointed by the State Legislature, but from 1868 they were elected at public elections. In 1858 Pearson was appointed Chief Justice and in 1868, when the constitution was changed, he became the first elected Chief Justice and served in this posistion until his death in 1878. In  1848 he established a law school at his estate in Yadkin County and ran it until 1878. Before the Civil War Peason was a member of the The Whig Party and pro unionist. After the war he joined The Republican Party and it was as a republican, that he was elected in 1868. In 1870 he faced impeachment charges, because of his involvement with Governor William Holden's actions against Ku Klux Klan.  Pearson was never tried though as the charges against him were dropped and in stead he presided in the impeachment trial against Governor Holden, who was found guilty in six of eight charges against him.

In his book The Ballad of Tom Dooley, John Foster West, gives an almost verbatim version of the two rulings. The Supreme Court had to consider the exeptions made by the defense. One - and the most prominent of these, was that Betsy Scotts testimony of what Laura Foster had told her on the morning of her disappearance, should not had been allowed, as it was hearsay. There was also a number of other, less significant exeptions, but as the Chief Justice dismissed those, so will I.

In the first ruling, Pearson starts by stating that there are two tests that can be made on a statement before counting it as true. Number one is if the statement takes the form of an oath.  Number two is, if the person making the statements in question can be cross examined. In the case of what Laura Foster, had told Betsyt Scott it was not made as an oath, and as Laura was dead, she could not be cross examined, so thre statements was considered hearsay and should not have been admitted. There was a few exeptions from this rule. One of these was if the statement was part of a Dying Declaration another was, if the statement was made as part of the Res Gestae. This legal expression can be defined as statements made as part of doing an act. The Chief Justice gives an example of this: "If someone seizes another by the arm, saying,  I arrest you under a State's warrant these words are as much a part of the act done as the action of taking him by the arm." (The Ballad of Tom Dooley, p. 166). "Res Gestae by the way is latin for "Things done". According to The Free Dictionary by Fairfax, "Res gestae is based on the belief that because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other secondhand statements and therefore should be admissible as evidence."  Wikipedia has this example: "Imagine a young woman (the witness) standing on the side of a main road. She sees some commotion across the street. On the opposite side of the road to her she sees an old man and hears him shout 'The bank is being robbed!' as a young man runs out of a building and away down the street. The old man is never found (and so cannot appear in court to repeat what he said), but the woman repeats what she heard him say. Such a statement would be considered trustworthy for the purpose of admission as evidence because the statement was made concurrently with the event and there is little chance that the witness repeating the hearsay could have misunderstood its meaning or the speaker's intentions." The rather undefined res gestae rule was used heavyly far into the 20th Century, but is today mostly replaced by more explicit exceptions to the general hearsay rule.

Another exception  made by the defense was, that statements that Ann Melton had made about Tom Dooley should not be allowed into the case, as a conspiracy between Ann and Tom had not been proven. To this the judge explains, that whether the evidence for such conspirarcy or "common design" is sufficient is not a legal matter but are questions of fact for the judge (in this case Buxton) to decide, and therefore the Supreme Court could not review this exception.

North Carolina State Capitol

The photo on the left shows the North Carolina State Capitol building in Raleigh. In 1866 and 1868 it also was the home of North Carolina Supreme Court. The picture is from Wikimedia Commons where it was contributed by Jim Bowen.

Then follows a very short brief of the case, as presented by defense and prosecution. In the middle of this you find: "There were several exceptions from the prisoner on the account of admission of improper testimony. The opinion of this court makes it unnecessary to state them all, or to detail the evidence." The only exception mentioned further is the one about Betsy Scot's statement about what Laura had told her being admitted as evidence. Pearson then mentions once again the exceptions of the Ann Melton statements and repeats that Judge Buxton had overruled the exceptions and admitted this evidence as well. The summary ends with: Verdict of Guilty; Rule for a new trial; Rule discharged; Motion in arrest of judgement; Motion overruled; Judgement of Death, and Appeal.

Then follows the arguments from the Supreme Court in which the Chief Justice says "The conversation between Mrs. Scott and the deceased ought not to have been admitted as evidence. At all events no part of it except that the deceased said she was going to the Bates place. How what the deceased said in regard to the prisoner's having come just before day, and where he was, and that she expected to meet him, can in any sense be considered a part of the act of the deceased." (My emphazis). The Chief Justice continues to explan why it can't be part of Res Gestae. Later he repeats: "In this case the conversatiton between Mrs. Scott and the deceased although it occurred at the time of the action or thing being done, to wit, her being on the road on her father mare, bare back, cannot in any point of view be considered a part of the act. It was entirely accidental and consisted simply of answers to inquiries which the curiosity of Mrs. Scott induced her to make. These answers may have been true, or they may have been false, but they were not verified by 'the tests' which the law of evidence requires, and it was error to admit them as evidence against the prisoner." So Laura saying she was going to Bates place was part of the act of going there, but her telling about Tom was not.

At this time the judge had already made up his decision, because he continued: "As the case must go back to for another trial, we do not feel at liberty to enter into an expression of opinion in regards to the other matters of exception." And then he does, just the same. I quote just one passage of this, as it has bearing on my own opinion of the case, which I will get back to in a later article. "We see from the case sent that His Honor (the Superior Court judge) fell into the error, for which a venire de nova (new trial) is awarded in at this term in State vs. Andrew. That is, without stating distinctly how he decided the facts, preliminary to the admission of the acts and declarations of Ann Melton in furtherance of a common purpose to murder the deceased, upon the evidence offered to the court to establish these preliminary facts he allows the evidence to the jury, and instructs them, that if they are not satisfied of the existence of a conspiracy between the prisoner and Ann Melton to effect the murder of the deceased, in that case they are to give to the acts and declarations of Ann Melton, which had been admitted as evidence to them no weight, and are not to be influenced by them." A few punctuation marks here and there, would have clarified a lot, but the case is, that Judge Buxton should have explained why he thought there was enough evidence of a conspiracy between Tom and Ann to allow her statements as evidence. Further Judge Buxton should have explained to the jury, that if they were not satisfied by evicence of conspiracy, then they should disregard all Ann Meltons statements. Judge Pearson continued to explain why the Supreme Court couldn't review this exception.

The ruling of the Supreme Court is given "Per curiam", that is anonymous and reflecting the opnion of the court, not the individual judges. The ruling was Venire de novo, meaning that the case had to be retried because of legal errors in the first trial according to "When a judgment upon an issue in part is reversed on error, for some mistake made by the court, in the course of the trial, a venire de novo is awarded in order that the case may again be submitted to the jury."

After the second trial in January 1868, where Tom again was found guilty, another appeal was made to the Supreme Court. Once again Chief Justice Pearson ruled for the Supreme Court. Once again one exception was made in order to establish that Ann Melton's statements should not have been allowed as an aggreement between her and Tom to murder Laura had not been established, and once again the Supreme Court came to the conclusion that if the evidence given was sufficient in the eyes of the Superior Court Judge, then it was a question of fact, and therefore not for the Supreme Court to review.

Another exception was made against admitting Ann's statements to the little girl she sent to tell Tom about the liquor, specically the statements about her keeping it a secret to Tom's sister. The Supreme Court came to the conclusion, that this statement was actually a part of Res Gestae (the act of sending the little girl to Tom)- and even the most important part.

An exception was made on grounds that the name of the state was not mentioned in the indictment but the Supreme Court found this irrrelevant, as well as another exception due to the word "saith" being used in the memorandum of the pleas of Ann and Tom was found irrelevant as the Supreme Court found it only to be a grammatical error.

During trial, one of the witnesses, Eliza Anderson, was asked if she had anything to do with John Anderson, a man of color. This question was ruled out by the judge, and the defense made an exception. The Supreme Court found that the question should not have been ruled out, but it was not enought to cause a new trial as there was not enough in the statement to show its relevancy for the case.

The final exception from the defense was once again, that the words of Laura Foster to Betsy Scott (about where she was going), should not have been admitted, due to the rule of hearsay. Here the Chief Justice wrote: We think that the evidence was admissable as part of the act. It was so considered by us when the case was up before".

The ruling of the Supreme Court (Per Curiam) was that no error has been made in the Court of Oyer and Terminer, and that there was therefore no reason for a new trial.

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