The trials begins

The trial of Tom Dooley took almost 18 months even if less than a week was used in court. This was due to the way the court system worked at that time. The superior court only met twice a year. Once in spring, and once in the fall. The reason it was called "The Superior court" was that it was superior to minor courts like the justice of peace courts where the warrant for arrest of Tom Dooley and the others were issued by Justice of Peace, Pickens Carter.

A little bit of politics

It has been argued among others by John Foster West, that the Dooley case was a political affair and that it was for political reasons that the former governor, Zebulon Vance undertook to defend Tom Dooley. I don't agree, but even so I will take a short look at the judges and lawyers of the case and their political involvement.

Zebulon Vance was a member of the North Carolina Legislature for two years before the Civil War, and ran for the U.S. Senate but was not elected. In 1858 though he was elected to the House of Representatives, only 28 years old. In September 1862 (during the civil war), he was elected as state governor and in 1864 he was re-elected. In this election he defeated William Woods Holden by a very large margen, as Holden only won the majority in three of the state's counties, while Vance won the other. One of the counties that Vance lost, was Wilkes County, which may have been part of the reason for his wish for a change of venue to Iredell, where he won with more than ten times the votes of Holden. When Vance after the civil war was arrested (as all Confederate governors were), Holden was appointed (not elected) governor by the Federal military government led by Major General David Sickles, the person first ever to be acquitted of a murder charge in USA by pleading momentarily insanity. Holden held his seat only from May to December 1865. In Decembe, he was replaced by Jonathan Worth, who was governor until July 1868, when Holden returned to office, this time as an elected governor. The election had taken place before Tom'd execution but Holden had not yet been instated. It wasn't Holden, who was governor during the trials of Tom Dooley, as some sources (among others Foster West) believes, but even if he was not directly involved, he may very well have influenced the outcome anyway, as he was acquainted with some of the judges and prosecution. In 1871 William Holden was impeached, convicted and removed from office as the first govenor in American history. He was accused of allowing the state militia to use too harsh measures against citizens of the state in his fight against the Ku Klux Klan.

The judge in the first trial in 1866, Ralph P. Buxton, was the leader of the Republican Party in the Cape Fear district of North Carolina. He was appointed as a Superior Court judge by his fellow republican, Governor William Holden. Later, when the electoral system for judges was introduced, he was elected to the office, but it was as a Holden apointee he served as judge in the case against Tom (although the governor himself had been replaced at the time of the trial). Buxton was even later (in 1888) elected to the office of Supreme Court judge.

When the Dooley case was tried for the last time in January 1868, then whig governor Jonathan Worth appointed William M. Shipp to preside. Shipp had been a lawyer since 1843. He served as captain of a regiment of volunteers at the beginning of the civil war, but in 1861 he left the army, when he was elected to the State Senate. In 1862 he was appointed judge of the Superior Court and served as such until sometime in 1868, after the Dooley trial. When the election system for judges were introduced he ran for office as a Republican, but lost the election to a Democrat rival. In 1870, he had become a Democrat himself and was elected North Carolina's Attorney General, although other Democrats lost their offices or just lost the election like the Democratic gubernatorial candidate. Shipp served as Attorney General for a single term, before he resigned and resumed his private law practice.

For both of the two appeals in 1866 and in 1868 the Supreme Court was headed by Chief Justice Richmond 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's trial took place. Peason as a local was most like acquainted with the upper class people of Wilkes County, ie James Isbell, Calvin Cowles and others who were also inviolved in politics. Pearson was appointed Associate Judge of the Supreme Court in 1848, and was appointed Chief Justice in 1858. In 1868, when the election system was introduced, he was elected as the first elected Chief Justice, and he held office until his death in 1878. While he wasstill an appointed judge in 1848 he established a law school on his property in Yadkin County and ran this to his death. Several lawyers got their basic legal training by Judge Pearson, among others, one of Tom's defenders, David Furches. Before the Civil War Pearson was a member of the Whig party and a firm union supporter (like Vance). After the war he joined the Republican Party, and it was as a Republican, he was elected as Chief Justice in 1868. In 1870 he faced impeachment because of his cooperation with Governor Holden. Holden was as mentioned impeached and convicted on six of eight counts. Pearson was accused of, as the Supreme Court Chief Justice having sanctioned the governor's actions, but the charges were dropped, and the case never came to court. Therefore he could continue as Chief Justice, and he actually presided over the impeachment trial of Governor Holden, a case in which he himself had been accused! No talk about disqualification in that case!

Leading prosecutor in the case against Tom Dooley was Walther P. Caldwell, District Attorney of the Sixth Judicial District. He was not particularly involved in politics at the time, but had served as Court Clerk in the Superior Court . The Court Clerk, was the leading staff officer of the court and he had a number of well-defined tasks associated with legal proceedings. For example, it was he who, together with the judge, made reports of cases in relation to appeals, etc. At the same time Caldwell worked as "Master in Equity" . As Master in Equirty he would serve as a judge in lesser trials that did not require a jury. Later, he became a senior official in the state legislature, where he got to know many politicians, and in 1865 he was appointed District Attorney of the Sixth District, an office he held up to 1874.

Caldwell was assisted by John M. Clement, who was a local lawyer from Statesville. Clement was later elected to the North Carolina Legislature, where he served one term before returning to the dock. In his last years as a prosecutor, he refused right out to prosecute any case where the death penalty was an option.

Second assistant of the prosecution was Nathaniel Boyden. The latter was a veteran of the war in 1812. He volunteered for this war only 16 years old. In 1822 he moved to North Carolina and began a legal education. In 1838 and 1840 he was a member of the North Carolina House of Commons, and in 1844 he was elected to the State Senate. In 1846 he was elected to the U.S. Congress for the Whig party. He did not ran for re-election in 1848 and returned to his law practice. After the Civil War, and in fact after Tom Dooley case, in the autumn of 1868 he was once more elected to the U.S. Congress, this time as a conservative. On that occasion, he beat the former owner of the store in Elkville, Calvin J. Cowles with a few votes. In 1872 he was elected as a judge of the North Carolina Supreme Court. In 1871, he was senior counsel for Governor Holden in the impeachment trial against him.

The defense was seniored by former governor Zebulon Vance, as I have already presented above. He was assisted by Richard M. Allison, a lawyer who was a resident of Iredell County. Before the Civil War Allison was a public defender in Iredell County. During the war he served as captain of a cavalry company, and after the war he resumed work in his law firm. Allison was later behind two of the articles (VII and VIII) of the charges made against Governor William Holden at his impeachment.

Second assistant to Vance was Robert F. Armfield. He had been an attorney since 1845. During the Civil War he served as a lieutenant colonel in the 38th North Carolina volunteer regiment. After being wounded, he left the army and was elected District Attorney of the Sixth Judicial District, but he was removed from the ofice by Governor Holden in 1865 and replaced by Walther Caldwell, the prosecutor in the case against Tom Dooley! Armfield had therefore no particular reason to like Caldwell, and was eager to defeat him. After the war he resumed his law practice in Statesville and after the Dooley case, he was elected to the North Carolina Senate, where he served in 1874 and 1875. He served as lieutenant governor of North Carolina in 1875 and the 1876. From 1879 to 1883 he was a member of the United States Congress (the Democrats), and later he was appointed judge of the supreme court.

Before the last trial of Tom Dooley, Armfield left the defense team. We don't know why today, but it may have had smething to do with his animosity against Caldwell. He was replaced on the team by David M. Furches. Furches was a prominent member of the Republican Party, which may seem strange, as all other members of the defense team were Democrats. He had studied law under Richard Mumford Pearson, who had presided over the first appeal, and also were to preside in a new appeal should it come to that. Later Furches were elected as Supreme Court judge in 1894 after losing the election for the office 1888 to Ralph Buxton, presiding judge in the first trial against Tom Dooley. Furches became Chief Justice in January 1901 and served until January 1903. He had moved to Statesville in 1866 and spent the rest of his life here.

The prosecution team were all Republicans, as were the judges, while Vance and the rest of the defense team, except for Furches, were Democrats. Vance himself had originally been a Whig and later a member of "The American Party", but now he was a Democrat. In addition to being from different parties, the members of the two teams had previously fought against each other politically*, so there were plenty of reasons why none of them would give in. So politics certainly played a role in the case, but was it a political case?

* It is important to remember that right after the Civil War, there were large differences in the political parties' positions, and there was often not only political disagreement, but downright hostility between members of different political factions, for example, about secession, the attitude to slavery, the attitude to war and not least the attitude towards the Union.

No, the case was not a political case. According to an article in New York Herald, Tom didn't like Governor Holden. The article that tells about Tom's last speech at the gallows has: "The politics of the country he discussed freely, and upon being informed, in reply to a question of his, that Holden was elected govenor of North Carolina, he branded that man as a secessionist and a man that could not be trusted." Besides from that Tom probably was not intersted in politics at all. And why would a newly established lawyer and experienced politician had taken a case like this? Just to spite his political opponents? I do not think so. It would be very difficult (as it proved to be) for Vance to win the case and thus gain a political victory, but even if politics did not play a significant role in the case, one can not exclude that it has nevertheless had some influence. Governor Worth, didn't care much for Zeb Vance, and may have had good reasons to appoint the specific prosecutors, as he did because he knew that they would do their best to beat Vance. The appointment of the first judge the governor had nothing to do with as it was simply Judge Buxton's turn, but for the Court of Oyer and Terminer,the governor handpicked William Shipp, and Woth may well have seen an advantage to find someone who was politically opposed to Vance, although Shipp later became a democrat.

Enough about politics, at least for now.On with the trials.

The Grand Jury hearing

Det gamnle domhus i Wilkesboro

The old Courthouse in Wilkesboro from 1902 is build on the same spot, where the even older courthouse were situated. It was in the former courhfouse that Tom's trial began with a grand jury hearing in October 1866. The old jail is right behind the courthouse.

Twenty witnesses, all from the vicinity of Elkville was heard by the grand jury. The list of witnesses mentions people who later testified again during the trial. Most of them is easily identified, but some are not, mostly because their statements from the trials do not exist any longer. The ones we do know is Dr. Carter, James Melton, Wilson Foster, Pauline Foster, Lotty Foster, Celia Scott, Betsy Scott and Washington Anderson. All of these are mentioned either in the article Main Characters or in the Supporting Cast article.

The other witnesses whose testimonies from the trials are kept (at least partially) to this day were Carl Carlton and Hezekiah Kendall (here listed as Kindall), the two people Tom met on the morning of the murder. Thomas Foster was Ann Meltons younger brother, Martha Gilbert, who testified about Tom digging at the path on Thursday and George Washington Anderson, Tom's friend from the war.

The remaining witnesses, whose testimonies are not known today as they are not in the offical records were John Atkins and Bennet Ferguson, the two deputies, that arrestedd Tom and to whom Pauline bragged of having killed Laura Foster together with Tom Dooley. A very small part of John Atkins testimony still exists. In this he only terstified, that he went after Tom into Tennessee about one month after Laura's disappearence. James Foster was the brother of Laura Foster and Carson Dula was the man who got liquor for Tom Dooley on the Thursday before the murder. None of their testimonies exist today. Neither does the testimonies of Docia Witherspoon, Drewry Atkins or C. C. Jones. Docia Witherspoon lived near the place, where the path to Dulas house left the river, and according to "The Recorder of Wilkes", had seen Laura on the morning of her disppearance, so that was probably what she testified. Drewry Atkins was problably a relative of deputy John Atkins, but of what he testified I have no idea. Same goes for C. C. Jones. He was one of the wealthy farmers from the valley, and I simply don't know why he was a witnes.  The final witnes is listed as Thomas M. Isbell, but that can't be true. The first Tomas Isbell, James Isbell's grandfather died in 1819, and his son Thomas M. Isbell, James Isbell's father, died around 1860. There may of course have been other Thomas M. Isbells around but I think it is a blunder of some kind, and that the person who actually testified was James M. Isbell. If not he was not heard at all during the grand jury hearing and no Thomas M. Isbell appears later in the trial records.

The testimonies caused the grand jury to find that there was reason to try Tom Dooley for the murder of Laura Foster and Ann Melton of urging and assisting. The Bill of Indictment is written in the language of the period. It starts with: "The Jurors for the State upon their oath presented that Thomas Dula, late of the County of Wilkes, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil..." Then follows something strange: "...on the 18th day of June 1866 with force and arms in the County aforesaid in and upon one Laura Foster in the peace of God and the State then and there being feloniously, willfully and of malice aforethough did make an assault..." Besided the old fasioned language, the strange thing is the date. The grand jury states, that the murder was committed on June 18, almost three weeks after the actual disappearance of Laura. Did they know something, we don't know today or was this just another mistake? I'll get back to the date later on.

Apparently they did know something or they were busy making things up: "...the said Thomas Dula with a certain knife of the value of five cents  which he the said Thomas Dula in his right hand then and there had and hold the said Laura Foster in and upon the breast of her the said Laura Foster then and there feloniously willfully and of his malice aforethough did strike, thrust and stab, giving to the said Laura Foster, then and there with the knife aforesaid in and upon her breast of her the aforesaid Laura Foster one mortal wound of the breadth of one inch and the depth of six inches of which the said mortal wound the said Laura Foster, then and there instantly died and so the Jurors aforesaid upon their oath aforesaid, do say the said Thomas Dula, the said Laura Foster in manner and form afaoresaid felonoiusly, willfully, and of his malice aforethought did kill and murder against the peace and dignity of the state." Thats a lot of words and a lot of repetitions to say that the grand jury found that Tom Dula could be tried for the murder of Laura Foster. Some questions rise though. Why was the value of the knife important enought to be mentioned? How did they know Tom used his right hand as no witnesses saw him commit the crime, and he denied having anything to do with it? Anyway they found that Ann could be tried as well. During the grand jury hearing, the head prosecutor, W. P. Caldwell droppped the original charges against Annn Melton of being an accessory to the murder.

Sheriff Hicks then brought Tom and Ann to the bar and the indictments were read to them. They both pleaded Not Guilty and the trial could begin. Tom and Ann were returned to their cells, where they should stay until the trial.

Change of venue

On Thursday October 4th the trial began. Head counsel for the defense, Zebulon Vance requested a change of venue as, the affidavit stated: "Thomas Dula and Ann Melton make oath they do not believe they could have a fair trial in the county of Wilkes for the reason that the case has been much conversed in said County." Maybe they were right. The case had been "the talk of the town" in the neighborhood of Elkville, and Wilkes County in general but that it be should less well known in Iredell County, neighbor to Wilkes is unlikely. Today some find it likely that Vance wanted a change of venue to Statesville because of the populations feeling about him. In 1864 he lost the gobernatoriel election in Wilkes to William Holden but won a landslide (1162 votes for Vance, 97 for Holden) in Iredell County. Maybe he thought that he would have the general opinion on his side. If he had anything at all to do, with where the case was transfered to. It may as well have been the sole decision of the Judge, who knew, that he would preside in Iredell as well, as soon as the fall term in Wilkes was over.

The court ordered the trial transferred to Iredell County and the court date to be Friday of Iredell Fall Term, 1866. Sheriff Hicks was ordered to deliver Ann Melton and Tom Dooley to the sheriff of Iredell County on Thursday. Tom and Ann was transferred and Tom never saw his native county again.

One of the interesting things about the change of venue was, that Tom signed the affidavit with his mark (x) as he had done one year earlier, when he had also signed his Oath of Allegiance to the Union with a mark, when he was released from POW camp.

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