"At the conclusion of the evidence in the case, while the lawyers were preparing the instructions, P. B. Thompson, Jr., and Larue Daviess started towards the court house door, and in a moment the firing commenced, by which party, it was not known; thirty or forty shots were fired. Theodore Daviess, Sr., and his son Larue, were instantly killed and Theodore Daviess, Jr., was mortally wounded. P. B. Thompson, Sr., and P. B. and J. B. Thompson, Jr., were wounded, but none of them fatally."
Excerpt from L. F. Johnson. Famous Kentucky Tragedies and Trials. Louisville: Baldwin, 1916. 191-204.
In June, 1867, Theodore H. Daviess, Sr., borrowed from Richard Meaux, twenty-five hundred dollars for one year. As evidence of this, he executed his note to Meaux for two thousand seven hundred and fifty dollars; the increase of the two hundred and fifty dollars, over the amount actually borrowed, was intended to cover the charge of ten per cent interest. Afterwards, in order to cover usurious interest, Daviess executed another note for two hundred and fifty dollars. When suit was brought by Meaux, Daviess, in his answer, which was drawn by P. B.Thompson, Jr., set up and pleaded payment, and filed as a part of his answer the original note of $2,750.00. Meaux obtained a rule against Daviess to show cause why he should not make his answer more definite and state to whom he had paid the note. In response, Daviess stated that he had paid it to P. B. Thompson, Sr., agent for Meaux. This response to rule was filed by P. W. Hardin, at which time J. B. & P. B. Thompson, Jr., declined further to represent Daviess, and they had their names stricken from the docket.
C. A. & P. W. Hardin and T. C. Bell became the attorneys for Daviess. Kyle, Poston, M. J. Durham and W. B. Allen were the attorneys for Meaux.
Daviess stated on the witness stand that he had paid off the note and produced two receipts to the amount of eight hundred dollars signed by Thompson and which were admitted by Thompson. Daviess also produced a check for eighteen hundred dollars which was payable to Thompson and which Daviess claimed was to go on the note. This Col. Thompson denied, stating that he had paid this eighteen hundred dollars to the creditors of Daviess at his request. A large number of old suits, executions and other court records were produced by both sides. At the conclusion of the evidence in the case, while the lawyers were preparing the instructions, P. B. Thompson, Jr., and Larue Daviess started towards the court house door, and in a moment the firing commenced, by which party, it was not known; thirty or forty shots were fired. Theodore Daviess, Sr., and his son Larue, were instantly killed and Theodore Daviess, Jr., was mortally wounded. P. B. Thompson, Sr., and P. B. and J. B. Thompson, Jr., were wounded, but none of them fatally.
W. E. Keller, Judge of the Mercer County Court, held the examining trial of the Thompsons under the following warrant: “The Commonwealth of Kentucky; to any peace officer of Mercer county: It appearing from the oath of J. C. Wilson that there are reasonable grounds for believing that Phil B. Thompson, Sr., Phil B. Thompson, Jr., John B. Thompson, Jr., and Davis M. Thompson have been guilty of murder in Mercer County, on the 26th day of November, 1873, these are therefore to command you to arrest the said Thompsons and bring them before me to be dealt with according to law. Given under my hand, this 26th day of November, 1873.
“W. E. Keller, " Judge of Mercer County Court.”
The Commonwealth was represented by Captain W. B. Allen, County Attorney; Ben Lee Hardin, W. 0. Bradley, afterwards Governor of Kentucky and United States Senator, and Judge R. M. Bradley, his father, and J. C. S. Blackburn, afterwards United States Senator.
The defense was represented by Judge 0. S. Poston, C. A. Hardin, Judge John J. Kyle, T. C. Bell, Gov. T. E. Bramlette and J. B. T. Davis.
There were seventy-five witnesses called, sworn and placed under the rule; among the witnesses was ex-Governor Beriah Magoffin. The cases were called at ten o'clock, December 30th. The first witness for the Commonwealth was Samuel Harding, of Danville. The main statements made by him, were as follows: “I was present in the court house the day of the Thompson-Daviess difficulty. I was sitting near the table looking at attorney C. A. Hardin, when Judge Wickliffe spoke to the officers and said: ' Stop those men.' I looked around and saw some of the Thompsons and Daviess near the door. Theodore Daviess, Jr., was struggling with Bud Eoberts, the jailor. I looked at him till a shot was fired, when I got down behind the bench. I had been present throughout the trial; I mean the trial of Meaux v. Daviess. I never thought of a fight and cannot tell how the parties were located at the time it started. There had been no firing when Judge Wickliffe said, ' Stop those men.' I saw some of the parties near the door and the remainder on either side going in that direction. Young Theodore Daviess was just outside the bar, Bud Roberts was holding him; in a few seconds the first shot was fired; I don't know who fired it. There was first a single shot, others followed in rapid succession. From the report, the first shot seemed to come from near the door, outside the bar, towards the left of the aisle going out. I did not notice the position of Theodore Daviess, Sr., nor of young John B. Thompson.''
During the examination of Theodore Daviess, Sr., reference was made to the twelve hundred dollar payment and the attorney for Meaux objected; young Phil remarked, '' Let him go on—I want to know what he has to say about me." Theodore H. Daviess replied that he meant no reflections.
'' I can only tell where young Theodore Daviess stood at the time the fight commenced. After the fighting was over, inside, I heard a shot on the outside, and I saw Captain Thompson running towards the bank. He was running after someone. I do not know where the second shot came from, young Theodore Daviess did not fire the first shot. At the time I saw Captain Thompson running towards the bank, there was no one with him. I saw young Phil standing outside the door, his face and shirt bosom stained with blood."
Judge Wickliffe's instruction to the jury was that, “The simple question in issue was payment or non-payment. His instructions to the officers of the court was; that the case was an exciting one and might beget a difficulty therefore he ordered the officials to suppress any outbreak at all hazards—even to the taking of life if necessary."
T. J. Polk said in part: “I went in the court room just a few seconds before the difficulty commenced. As I came towards the bar I saw P. B. Thompson, Jr., and Larue Daviess near the stove, in conversation, they started towards the door, young Phil in front, Larue Daviess seemed excited; as they started out, some person caught hold of Larue; young Phil remarked, 'Come on.' Young Phil was not excited. As Larue passed me I took hold of the lapel of his coat, but let go before the Judge ordered, 'Stop those men.' The first shot was fired somewhere near the door. I then kicked out six panes of glass and went out to the yard; after getting out I saw Theodore Daviess, Jr., running across towards the bank, P. B. Thompson, Sr., in pursuit and firing at him with a pistol, he was about twenty feet behind him. I don't think he fired but one shot. Theodore neither turned nor looked back, while Captain Thompson was in pursuit of him. I have known T. H. Daviess, Sr., about thirteen years. I know his reputation. He was considered a very dangerous man when stirred up."
P. Watt Hardin (Attorney General of Kentucky for many years) one of the attorneys for Daviess in case of Meaux v. Daviess, was asked: " Would not the termination of the civil suit, if the verdict of the jury had been in favor of the Daviess, ruined the professional character of Captain Phil Thompson? " to which he answered in the affirmative. Mr. Blackburn said: the object of the question was to show a motive for putting the Daviesses out of the way. Governor Bramlett then asked, whether if the jury had decided in favor of Thompson, it would not have established the fact that T. H. Daviess had sworn to a lie, which was also answered in the affirmative. It was the theory of the prosecution that John B. Thompson, Jr., fired the first shot, the one that killed Theodore H. Daviess, Sr.
One witness testified that the first notice of the fight was; little Eugene Daviess ran to his father and said, “Father, young Phil Thompson and Larue are going out to fight.” Theodore Daviess then rose from his seat and started towards the door when the firing commenced.
County Attorney W. B. Allen testified: “I was present in the court house the day of the difficulty. Phil Thompson, Jr., seemed excited during the delivery of Theodore Daviess' testimony. He walked to the stove where Larue Daviess was standing and the two got into a conversation. I saw them start towards the door together, when young Caldwell Daviess took hold of Larue, saying, 'Don't go Larue.' Larue replied, 'Yes, I will.' After going a few paces, Phil turned half around and said, 'Come on.' Just then Judge Wickliffe called out: 'Stop those men.' I ran to the window and jumped out. As I jumped, I heard a shot fired and I saw Larue Daviess stagger out of the front door and fall. Little Phil was the next to come out, following Larue. I next saw Young Phil and Theodore Daviess, Jr., in a hand to hand struggle, each had a pistol, so I continued my retreat. I then saw Captain Phil Thompson, Sr., come upon the ground and Theodore Daviess turned to flee, with Captain Thompson in pursuit. Captain Thompson said, 'Kill him.' Little Phil threw his pistol at Theodore, Jr., as the latter ran away, when Captain Thompson said, 'Kill him G—d d—n him.' Theodore Daviess made a half halt and turned partly around and raised his pistol, at this Captain Thompson fired. John Thompson, Jr., was near his father and he picked up something and threw at Theodore Daviess. I don't know who fired the first shot in the court room; eight or ten shots were fired before I got out."
P. Watt Hardin said: '' During the close of the trial of the civil suit, I was sitting near T. H. Daviess, Sr., Charles A. Hardin was writing instructions for the jury. Ex-Governor Thompson (John B. Thompson, Sr.), was sitting close by; while in that position at the lawyers' table, little Eugene Daviess, the youngest son, age about ten years, came up to Theodore Daviess, Sr., and said, 'Pa, little Phil and Larue have gone out to fight.' I said, 'No, stop, I guess not,' Theodore Daviess, Sr., then arose from his seat, but at my words, he paused for an instant. 'Ah, yes Pa, I know they have,' repeated little Eugene. Mr. Daviess, the father then sprang from me as I threw my hand towards him, and knocking over a chair he started towards the door, at that instant Judge Wickliffe said, 'Stop those men,' whereupon general confusion ensued and a promiscuous firing began. Thirty or forty shots were fired within fifteen seconds and everybody was running for a safe place. There were three or four men shooting, but I am not able to specify who fired a single shot, so quickly did the promiscuous fusillade follow. I know the four defendants named in this warrant were shooting, but am unable to specify any particular shot. I saw Abe McMurdy with a pistol out during the fight, he either fell over, or on top of Judge Wickliffe. I know McMurdy had a pistol from the words of Judge Wickliffe, who was piled up behind the desk, he said, 'For God's sake take that pistol away.' I did not see McMurdy shoot or try to shoot, but I thought Judge Wickliffe's eyes would pop out of his head when McMurdy came tumbling over him with a pistol in his hand. The first and second shots were fired near the door. I saw Theodore Daviess, Sr., as he got near the door, turn and sink down, pistol in hand as if he had received his death wound.''
Beriah Jones said: “He could not tell who fired the first shot, as the firing was promiscuous. He saw young Phil B. Thompson fire a shot at Theodore Daviess, Sr., and soon after the latter fell to the floor, John shot but twice that witness saw." It also came out in Jones' evidence that Phil B. Thompson, Jr., and John B. Thompson, Jr., were twin brothers and that they looked very much alike.
Caldwell Daviess, seventeen years of age, said: “My brother Larue Daviess was standing near the stove, inside of the bar and little Phil approached him and said, ‘I want to give you a d—n good kicking.' He spoke very distinctly. I said, 'Larue don't go out,' he replied, 'I will be bluffed by no Thompson,' as the two started out, John B. Thompson, Jr., drew his pistol and fired; when the first shot was fired I got under the table. Father was standing near me, talking to Mr. Hardiu. He got up and started out; when just outside the bar he was shot. John B. Thompson, Jr., fired the first shot I noticed. I remained under the table until the shooting was over. I had no pistol. I was not present when Jack Chinn testified. I did not hear Chinn when he told father, he had sworn to a d—n lie. As father passed towards the door I saw no pistol in his hand. Abe McMurdy, John Thompson, Jr., and Dr. Davis Thompson had their pistols out; this was at the commencement of the difficulty. Father has always worn a pistol and Bowie too, all his life. Larue nearly always carried a pistol. When I and Larue were in Missouri, father wrote us to stay there; said he expected to be assassinated by the Thompsons and for us to remain there. I saw Davis Thompson on the morning of the day the fight came up, with a pistol in his overcoat pocket."
Eugene Daviess testified: “I am a son of Theodore Daviess, Sr., and a brother of Theodore and Lame. I was standing by the stove when Phil said to Larue, ‘What do you want?’ Larue said, 'Nothing, what do you want?' Phil said, 'I want to give you a d—n kicking, and if you will go out I'll do it.' I ran and told father. The first shot I saw, was fired by John Thompson, Jr., I got down behind the bench; when I rose I saw Phil Thompson, Sr., go out the window. I think John Thompson fired over some man's shoulder. I then went over to where father was lying. I saw Davis Thompson with a pistol in his hand. I had no pistol, neither did Caldwell. I don't know who John Thompson shot at, he shot towards the door. To the best of my knowledge John Thompson fired the first shot, one shot was fired out in the yard after I got to father.''
Rev. W. P. Harvie saw the difficulty which took place outside, saw Phil Thompson, Sr., shoot and heard him say, “Theodore Davis, Sr., had sworn to a d—n lie and that now his soul is in hell for it." On cross-examination, witness said that Captain Thompson was limping, pale and very much excited immediately after the shooting of young Theodore Daviess, and was leaning on the arm of someone.
B. A. Taylor saw the trouble outside of the court house. Saw Larue Davis fall out of the court house door, young Phil Thompson just behind him. Theodore Daviess, Jr., then came out and he and young Phil clinched, just then some one jumped out of the window and said, “Run or I will kill you." Captain Phil then started in pursuit, as Daviess ran out of the court yard; he had a pistol in his hand. Just before he was shot by Captain Thompson, who had two pistols, Theodore turned his head, Captain Thompson said, just as he shot,'' Kill the d—d son of a b—h.''
James C. Willson was Town Marshal and was present and saw the trouble. After giving a statement about the civil trial and shooting, he said: “As I went out the door after the shooting, Theodore Daviess, Sr., was lying near the door dying, with a pistol in his hand, only one of the chambers was empty. I saw Larue lying on the pavement just outside the front door; I saw a pistol near him; it was a six inch Cooper's self cocker, two chambers empty and caps off of four barrels. There was blood on the wall in the vestibule as if someone had spit it out. The first man I met was Phil, Jr., the next was John B., Jr., and Captain Phil soon came up; they gave their pistols to me, all three of them were empty."
There were various statements made in reference to the character of Theodore Daviess, Sr., and Larue Daviess, but there was only one sentiment expressed as to Theodore Daviess, Jr., he was esteemed in the community of Harrodsburg above almost any other young man in Mercer County. It was in the proof that he was honorable, true, quiet and modest. Larue was hasty, impetuous and quarrelsome, but Theodore had all of the heroic elements in his composition. After his father fell in the court house and his brother outside, Theodore exhausted his pistol, then clinched with Phil, Jr., and used it as a club until Captain Phil Thompson came up and someone called to him to run, he realized that he was fighting with an empty pistol, the odds were against him and that a retreat was necessary. When he reached the bank corner he was shot in the back by Captain Thompson who pursued him to that point. Captain Thompson said afterwards, that he would give the world if he had it, to recall that last fatal shot. When the last shot was fired Captain Thompson turned back and Theodore continued down Main Street to the express office, in which he was engaged and over which he had his room. When he reached his door he found it locked, after breaking it open, he fell upon the bed where he died the next morning at 11 a. m. Before he died be sent assurances of forgiveness to the Thompsons.
The friends of Captain Thompson claimed as extenuation of that last shot, that he had just a moment before seen Theodore and his son Phil engaged in deadly conflict, the face and shirt of his son were covered with blood and he himself had been severely wounded. The whole fight had not lasted longer than two minutes.
Theodore Daviess, Jr., had a wound in his left hand and one in the lower part of the back passing through the abdomen, which caused his death. Theodore Daviess, Sr., was shot in only one place, the ball entered about an inch and a half below the left nipple and ranging through to the right side of the spine. Larue Daviess had four wounds, one through the left wrist lodging under the skin, another higher up on the same arm, another in the breast just under the collar bone and the fourth in the right side of the back near the spine; he was shot by balls of different size, the shots in the arm were of the same caliber and the other two were from a different pistol.
The prosecution examined only twenty-eight of the forty witnesses subpoenaed for the State.
The main witness for the defense, and he presented practically the whole theory of the defense, was Hon. J. C. Wickliffe, Circuit Judge of the Seventh Judicial district. He said, “I am Judge of this Circuit. I was presiding here on the 26th of November and saw a portion of the conflict between the Thompsons and the Daviesses. I had taken precaution to suppress any outbreak, after one of the officers of the court had warned me that there was bad feeling between the parties on account of the suit of Meaux v. Daviess. On Monday the 13th day of the court, I directed Mr. Cummins, the sheriff, to arm himself and six other good men and suppress any outbreak. I gave the warning in open court just after swearing the jury. During the progress of the trial I noted the bearing of the Daviesses and the Thompsons. Phil Thompson, Sr., and his two sons testified in the case. I saw nothing offensive in their manner, though Captain Thompson seemed a little excited but not offensive in his manner. The manner of Theodore Daviess, Sr., while testifying, I thought rather offensive to some of the witnesses; after Mr. Daviess, Sr., had been introduced a second time as a witness, he began some remark, when Judge Durham stopped him. Young Phil rose up and turned towards me and said, ' Let him go on and state all he knows about it.' I remarked, ' I'm running this machine,' at this moment Captain Thompson was sitting on a table or chair near the railing. My attention was first attracted to the difficulty in this wise: I saw young Phil going towards the door and just behind him was Larue and Theodore Daviess, Jr. I thought it boded no good, so I looked around for the sheriff. Theodore Daviess, Sr., jumped up and started towards the door, pistol in hand, when I said, ‘Bring those men back.' Just then three shots were fired in the aisle leading towards the door. I did not see young Phil any more until the fight was over. When the three shots were fired I protected myself behind the desk. A volley of five or six shots soon followed. Davis Thompson was on my right side, inside the bar and near the stove, when I got behind the desk I saw him facing towards me; I saw a shot strike him just above the hem of his pants across the abdomen. I afterwards saw the rent, his hat was also perforated, I saw the dust fly from his pants when struck; about the same time he returned the fire, using the pistol in his left hand. At the time young Phil was testifying Larue Daviess was standing near the stove with his hand, in his pocket as if he had a pistol.
“The trial commenced on Tuesday and I kept my eyes on both parties, pretty close. When the firing ceased on the inside, some one called to Captain Thompson and told him there were two on little Phil outside. Captain Thompson went out of the window, followed by young John and Davis Thompson. I went up to where Theodore, Sr., was lying and made the jailor take the pistol out of his hand. I passed out and saw little Phil, his head, face, bosom and collar were very bloody, one of his hands was powder burnt, his left hand, I think; and the skin was cut or abraded. Soon after this little Jack came up and surrendered himself. His hand was shot and bleeding, I saw a bullet hole through his clothing, there was also a bullet hole through the rim of his hat.
“Captain Phil was shot through the right thigh, he remained on the inside of the bar until the fight closed in the room. I did not see that he had a pistol. None of the Daviesses were lawyers and all the Thompsons are lawyers except Davis M. I don't think Theodore Daviess, Sr., fired any one of the three first shots. When Abe McMurdy got on top of me, he had a pistol in his hand; this was while I was concealed behind the desk."
The defense proved that Theodore Daviess, Sr., had made several conditional threats against Captain Thompson, which were conveyed to him. It was in proof that Theodore Daviess, Sr., had proposed to Captain Thompson, some days before, that they should fight their matters out between themselves without involving their sons, that they should enter into an agreement to such effect. Captain Thompson, he said, refused to accede to the proposition and Daviess, Sr., thereupon said, " It would be henceforth man to man and clan to clan."
A large number of witnesses testified to the good character of Captain Phil Thompson and his boys and also that Theodore Daviess, Sr., and Larue Daviess were desperate dangerous men. A conflict between the two families was generally expected, all the parties were expecting the fight and were looking for a chance to bring on the difficulty.
W. F. Eobards did not know who fired the first shot but he knew that John Thompson, Jr., fired the second shot, and that twenty-five or thirty shots were fired in the court room and he pointed out where fifteen bullets had made marks on the walls in the court room. He took the pistol from Theodore Daviess, Sr., who said, “Don’t take my pistol." These were the last words he uttered, only one chamber was empty.
Out of the thirty or more shots which were fired the condition of their pistols showed that the Daviesses fired only eight shots.
After the conclusion of the evidence, Judge Keller gave the attorneys to understand that he had his mind made up and that an argument of the case would be useless.
He held Phil B. Thompson, Sr., over to the grand jury, and fixed his bond at five thousand dollars. The cases against Phil B. Thompson, Jr., John B. Thompson, Jr., and Dr. Davis Thompson were dismissed. The court said in reference to Captain Thompson: " It is a pity that the last unfortunate shot was fired; but as regards this part of the fight, the court believes that Captain Thompson ought to be held over; the court has no doubt Captain Thompson would have refrained from firing it had he known all the circumstances; but seeing his son engaged in which he thought was a mortal conflict, seeing his face and shirt bosom covered with blood, he fired the last shot in hot blood, yet this court is only a court of inquiry and the defendant should be held over." Though Captain Thompson was held over, he never was indicted and no further prosecution was made.
The Daviesses and Thompsons were among the most prominent families in Kentucky. Captain Phil Thompson was known as one of the best criminal lawyers in the State, for many years; his brother Hon. John B. Thompson, Sr., was elected to the Kentucky Legislature in 1835. In 1840 he went to Congress where he served several terms; in 1849 he was elected Lieutenant Governor of Kentucky and in 1851 was elected to the United States Senate. He was a brilliant man and a great orator; his speech on Cuba rivals Governor Proctor Knott's speech on Duluth. He died January 7, 1874, while the Thompson trial was in progress.