At Least Three Killed in Church Yard Feud Battle, Whitley, 1888

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[July 11, 1888] -

A KENTUCKY TRAGEDY.

Factions Fight in a Churchyard -- Two Killed and Four Wounded.

KNOXVILLE, Tenn., July 11. -- One of the bloodiest tragedies that has ever occurred in eastern Kentucky took place Sunday night at Laurel Fork meeting house, in Whitley county. The principal parties in the riot were the Rose and Fuson factions.

The following are the facts as your representative has been able to ascertain after much trouble and expense:

It seems that the old feud has existed for some time along Pine mountain between Mitch Rose and one of the Fusons. For months they have been organizing their friends, and each had sworn eternal vengeance on the other. Sunday night each faction went to Laurel church full of mean whisky and fight. Only a few days since the leaders had met in personal combat, when Fuson and Rose were both seriously hurt. This aroused the members of each  party and extermination was decided upon.

About 8 o'clock, when the gospel was being expounded in true backwoods sincerity, a volley of shots were heard within. Another, and still another followed in quick succession. A dozen men had met in mortal combat. The people at worship rushed from their places into the outer darkness to find it filled with curses, prayers and groans. There in the churchyard sturdy mountaineers had met in battle array and life's blood had flown freely. The screams of women and children and frantic actions of men, with the death agonies, rendered it a scene horrid in the extreme.

On the ground, cold in death with their instruments of warfare beside them, lay Ewell Lawson and his thirteen year-old son, of the Rose faction. They had not died in vain, for near by lay in the most intense agony and fatally wounded, Tom, Jim and Ewing Fuson and John Parton. The astonished and excited inhabitants took charge of the dead and dying, and gave them every attention that backwoods aid could render.

The isolated condition of the battle ground renders details hard to get, but the above facts were gained from a party in that vicinity. That entire section of Kentucky is wild with excitement, and the end is not yet. Both factions have many adherents, and each has ordered an extra supply of firearms. [1]

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[July 12, 1888] -

FURTHER FACTS

Regarding the Tragedy in Whiteley County, Kentucky.

KNOXVILLE, Tenn., July 12.-- Never before in the history of eastern Kentucky has there prevailed so much excitement as now exists in Whiteley county over Sunday's bloody battle. To more fully get at the details of the tragedy, your reporter visited that section.

Laurel Fork church, an ancient log building used by the Baptist congregation, was found in a weird, lonely section, fifteen miles from the railroad and nestling in among the hills of Pine mountain. Nar by ran Laurel Fork, a branch of the Cumberland river, and everything about exhibited evidence of only a primitive civilization. The inhabitants there are farmers, moonshiners and hunters, and much of their time is taken up in settling old feuds. They are, however, hospitable, and if a stranger makes known his business safety is assured.

The incident leading to the fatal fight of Sunday occurred a month ago. Mitch Rose accused Tom Fuson, his brother-in-law, of stealing $5. This lead to bad blood, and every effort to effect a compromise of the difference proved futile. Rose and Fuson have a number of times sought each other's life-blood, and more than one personal encounter has occurred. Friends sided with the determined men, and the result was each had a dozen well armed followers, and war was declared ten days ago.

Saturday each faction gave it out that its members would worship at Laurel Fork the next day. Quickly following there was a rush to arms, and every preparation made for attack and defense. As if by appointment, each faction met in the church yard while the shepherd of the little mountain flock was taking his text for the regular discourse. That sermon was never completed, as the brave mountaineers opened fire upon each other, and shot succeeded shot for several minutes, and blood began to flow freely. The antagonists having exhausted their ammunition, gave up the contest, but not without the loss of life.

Riddled with leaden vengeance, stretched in their own blood, lay Ewel Lawson and his son John. Near by were Tom, Jim and Enos Fuson, John Parton, Scott Parton, Mith Rose, Hiram Rose, his father, and Lewis Perry, all badly hurt. The little church was made a temporary hospital, and all available aid rendered the wounded. The injured men have been removed to their several homes, and Tom Fuson has since died. Hiram Rose has his lungs full of shot and can live but a few hours. The other men are badly injured. Scott Parton and Enos Fuson will probably die.

No further trouble is feared at present, but when the dead have been buried and the wounded get better or die, there will no doubt be a revival of the feud. [2]

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[July 13, 1888] -

The faction war between the Roses and Fustons in Whitley county resulted in two persons being killed and a dozen wounded. [3]

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Fueston v. Commonwealth.

COURT OF APPEALS OF KENTUCKY

91 Ky. 230; 15 S.W. 177; 1891 Ky. LEXIS 20

February 7, 1891, Decided

PRIOR HISTORY:  [***1]  APPEAL FROM LAUREL CIRCUIT COURT. 

DISPOSITION: Reversed and remanded.

COUNSEL: JAMES ANDREW SCOTT FOR APPELLANT.

1. The statement of Johnson, the grand juror, that the witness, Jackson, swore before the grand jury that he saw defendant shoot deceased was not in contradiction of Jackson, and was, therefore, not competent evidence. (Crittenden v. Commonwealth, 82 Ky. 164; Loving v. Commonwealth, 80 Ky. 507; Kennedy's case, 14 Bush 358.)

2. The many and lengthy instructions were calculated to mislead the jury, and the court should, on that account, reverse. (9 Bush 14.)

3. It was the duty of the court to give to the jury the whole law of the case. (Stivers v. Commonwealth, 6 Rep., 195.)

4. The instructions as to manslaughter were erroneous. (Stanley v. Commonwealth, 9 Ky. Law Rep., 665; Oakley v. Commonwealth, 10 Ky Law Rep., 885; Chittenden v. Commonwealth, Idem, 330; Costigan v. Commonwealth, 11 Ky. Law Rep., 618.)

5. An instruction as to involuntary manslaughter should have been given (Conner v. Commonwealth, 13 Bush 714; Farris v. Commonwealth, 14 Bush 362; Buckner v. Commonwealth, 14 Bush 602.)

EVERSOLE & BROWN, SCOTT & VIOLETT OF COUNSEL FOR APPELLANT.

P. W. HARDIN,  [***2]  ATTORNEY-GENERAL, FOR APPELLEE.

No brief in record. 

JUDGES: CHIEF JUSTICE HOLT. 

OPINION BY: HOLT 

OPINION

 [**177]   [*231]  CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.

In a desperate conflict between several of the Fuestons and Partons upon the one side, and several of the Lawsons and Roses upon the other, John and Ewell Lawson and James Fueston were killed, and several others wounded. The weapons used were pistols, and many shots were exchanged. The testimony, as might well be expected, is very conflicting. The appellant, Beth Fueston, was jointly indicted for murder with seven others, for the killing of John Lawson, the deceased having also taken part in the difficulty.

James Fueston, who was killed, was a son of the appellant. The latter has been convicted of manslaughter, and now appeals from a sentence of twenty-one years in the penitentiary.

As the case must be remanded for another trial, and as others may yet be tried for having taken part in the tragedy, we shall refrain from a discussion of the evidence  [*232]  save so far as is necessary to a due consideration of the questions raised by this appeal.

The difficulty occurred at a church which appellant was [***3]  in the habit of attending, and when religious services were being held. The appellant came there with his wife and daughter, and also some neighbors, who, however, do not appear to have been engaged in the trouble. It was in hot weather, and he was in his shirtsleeves. He then, apparently, had no weapon. The testimony is conflicting as to whether he, at any time during the difficulty, had a pistol. Some witnesses say he did, and some that he did not. Assuming, however, that he did, yet there is no positive evidence that he shot the deceased, John Lawson. After a careful examination of the record, we fail to find that any witness says so. The deceased was shot twice. Several witnesses swear positively who fired one of the shots, but who fired the other does not appear by any positive evidence. The son of the appellant appears, according to the latter's testimony, to have been first killed, and in his immediate presence. There is testimony showing that at the commencement of the shooting the appellant grabbed the deceased, and in the scuffle they went over a bank; and one witness says that after they did so he saw smoke, as if from a pistol, at the point where they then were, and this [***4]  statement is possibly confirmed by another witness. But what may well be termed "the battle" had then become general; the parties were then scattered about, and the firing was going on upon all sides. The deceased himself had a pistol, which he had been firing at some one. He was seen at another point after the scuffle with the appellant, and then it  [*233]  was that several witnesses say he was shot at least once. As to these matters there is perhaps some conflict of evidence, but when both the State and the accused had closed their testimony in chief there was no evidence tending to show that the appellant either shot, or shot at the deceased, save the circumstances just detailed. The vital question was whether he had done so, or had aided or encouraged those who did do so, and we have said this much as properly leading up to the consideration of the competency of certain testimony.

The accused introduced one Wm. Jackson as a witness. He was an eye witness of the difficulty. His testimony was doubtless regarded as material by the accused,  [**178]  and so it appears to us. He testified as to various matters, and among them that he saw the accused "before and during the fight.  [***5]  He had no pistol." Upon cross-examination he said: "Did not see Beth Fueston have John Lawson down or shoot at him." He was then asked: "Did you state before the grand jury, in Whitley Circuit Court, that you saw Beth Fueston shoot John Lawson?" The witness answered, in effect, in the negative.

After the accused had closed his testimony, the Commonwealth was permitted, over his objection, to introduce a member of the grand jury, and prove by him that Jackson stated before it that "he saw Beth Fueston put pistol against John Lawson and shoot." It can not well be doubted but what this evidence was effective in the way of a conviction. It was unquestionably very damaging to the appellant's cause. Certainly the Commonwealth had no right to prove as a substantive fact, or as matter in chief, that Jackson  [*234]  had said he saw the accused shoot Lawson. The witness had testified upon his examination in chief by the accused that the latter had no pistol. Conceding that this was equivalent to saying that the accused did not shoot the deceased, yet the testimony of the grand juryman was at most only competent by way of contradiction of Jackson's testimony; but it was allowed to go to [***6]  the jury without their being told that it was only to be considered for that purpose. Upon the peculiar facts of the case, in view of there being no positive testimony that the accused had shot or shot at the deceased, this should have been done. It doubtless was received by the jury as substantive testimony that the accused shot him. It was, in effect, evidence in chief upon the part of the State. The court was bound, as it no doubt intended, to afford the appellant a fair trial, but this, we think, was not done for the reason indicated. This testimony was introduced after the defense had closed its evidence, and when it was likely to be very effective with the jury. It was proven as the statement of an eyewitness to the tragedy, made not long after its occurrence, and coming as it did without restriction from the court as to its effect, the conclusion is almost, if not quite, irresistible that the jury regarded it in determining the question whether the accused actually shot the deceased.

To have insured a fair trial, the lower court should, upon the circumstances of this case, have instructed the jury how and for what purpose they could consider this testimony. The whole law of [***7]  the case was properly given to the jury, but for the error indicated the judgment is reversed, and cause remanded for another trial consistent with this opinion. [4]


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[February 10, 1891] -

Beth Fuson, who has been in jail here [Stanford] since he was given 21 years in the penitentiary for killing John Lawson in Laurel county, pending an appeal, has been granted a new trial. The Court of Appeals holds that instead of the jury convicting on the testimony of the grand jurors, who swore that Wm. Jackson testified before them that he said Fuson put a pistol against Lawson and shot, their testimony should have only gone before them in the way of contradicting Jackson's testimony, when he swore on the trial that he did not see Fuson kill Lawson. [5]





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[April 3, 1891] -

LONDON LAUREL COUNTY.

Beth Fuson left us Friday, having secured the required bond. [6]


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[September 18, 1891] -

Scott Parton, who is wanted in Knox for the murder of two Lawsons and Rose, in 1889, was captured at Artemus, in that county, Monday night. [7]



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[September 25, 1891] -

Scott Parton, a partisan in the notorious Fuson-Lawson feud, and wanted in Whitley county for the murder of Marion Lawson, Ewell Lawson and one Rose in 1889, was the other night arrested at Artemus, three miles south of Barbourville. [8]



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[February 16, 1894] -

Circuit court is moving slowly just now. The case Beth Fuson, charged with murdering Lawson, changed from Whitley to Laurel, has been before the court for several days. The closing speeches will be made this morning, Jas. D. Black for the defense and W. R. Ramsey for the prosecution, and a verdict will probably be reached some time to-day, Thursday. [9]




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[February 20, 1894] -

The Fuson murder case which was on trial when I last wrote you, resulted in a hung jury, four for conviction and eight or acquittal. [10]




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[January 18, 1897] -

Another case which will be tried during this term of court has a romantic history. Burt Fuson, aged about 70 years, is charged with having taken part in the killing of Sam and Will Lawson at Rolling fork meeting house nine years ago. At that time there was a family feud existing between the Partin family, to which Fuson belonged, and the Ross and Lawson families on the other side.

On Sunday in June, 1888, the two clans met at the meeting house and a terrible battle ensued, in which Sam and Will Lawson were killed. Two of the Partins have been sent to the penitentiary for this killing, but Fuson got a change of venue to Laurel county, where he was tried several times, the result being hung juries except in one instance when he got a sentence of twenty-one years in the penitentiary. The Court of Appeals gave him a new trial and the Laurel court remanded him back to Whitley county.

Fuson was a man of considerable property when he began to fight the case nearly nine years ago, but he is now poor as a result of the heavy expenses of his trials, and he is very feeble. A remarkable coincidence in his case is the fact that Gov. Bradley defended him in his former trial, and now the Governor's brother-in-law, Judge Z. T. Morrow, will try him. [11]




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[1] "A Kentucky Tragedy." The Evening Bulletin, Maysville, KY. July 11, 1888. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn87060190/1888-07-11/ed-1/seq-1/

[2] "Further Facts." The Evening Bulletin, Maysville, KY. July 12, 1888. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn87060190/1888-07-12/ed-1/seq-1/

[3] Excerpt from "News Condensed." Semi-Weekly Interior Journal, Stanford, KY. July 13, 1888. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1888-07-13/ed-1/seq-2/

[4] Fueston v. Commonwealth, 91 Ky. 230, 15 S.W. 177 (1891). 

[5] Excerpt from "City and Vicinity." Semi-Weekly Interior Journal, Stanford, KY. February 10, 1891. Page 3. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1891-02-10/ed-1/seq-3/

[6] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. April 3, 1891. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1891-04-03/ed-1/seq-1/

[7] Excerpt from "Newsy Notes." Semi-Weekly Interior Journal, Stanford, KY. September 18, 1891. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1891-09-18/ed-1/seq-2/

[8] Excerpt from "Kentucky State News." The Hickman Courier, Hickman, KY. September 25, 1891. Page 2. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052141/1891-09-25/ed-1/seq-2/

[9] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. February 16, 1894. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1894-02-16/ed-1/seq-1/

[10] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. February 20, 1894. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1894-02-20/ed-1/seq-1/

[11] Excerpt from "Bloody Crimes." Morning Herald, Lexington, KY. January 18, 1897. Page 1. Genealogybank.com.

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