SONS OF DEWITT COLONY TEXAS
Previous page 1 The Smothers Family
The State's Attorney for Lavaca County in the spring term of 1891 was facing a dilemma. A good case of murder was about to go down the drain. He had precipitated an early trial of Bird Kelly in the preceding term of the court, only to run into what he believed was a stacked deck. The trial ended in a hung jury. Failing in his first shot, he petitioned for a change of venue, alleging that the defendants, Bird Kelly and John [Wesley] Smothers, "are members of large and influential families"; that there existed "combinations and influences" which would preclude the State's getting a fair shake. [State of Texas vs. Bird Kelly et al., No. 2840, Criminal Docket, District Court, Lavaca County]
John Smothers Sr. [John Bates Smothers II], who posted the bond that freed Kelly, his son-in-law, and John W. Smothers, his son, on charges of shooting William Stubbs and James Tucker, as well as on other charges, was the patriarch of the clan: three sons, and six daughters, all of whom had married well so as to include the Turks, the Kellys, the Karneys, the McElroys, and so on. The patriarch, in turn, was one of eight children born to John [Bates] Smothers [I], who had come to DeWitt's Colony in Texas in September, 1828, as a widower with three children: William, Archibald, and Mary Ann, who married Elijah Kelly. The Smothers land grant was west of Hallettsville, near St. Mary's, where the family took roots. Prior to the Texas Revolution, the widower married Mary Ashby and with her joined the "Runaway Scrape." They quartered for a while on a large plantation known as Groce's Retreat in Waller County, then moved to Hempstead and finally to Columbus, where on November 8, 1836, the patriarch was born. In time he was followed by brothers Tobin and Charles and sister Martha Ann, who married Jefferson Butler. All of them, as their turn came, were to play roles in the history of the county. Archibald, the patriarch's half brother, was the first to die in violence. He and a companion named Nunnelley in 1838 were camped on the Lavaca River near the Hallet settlement, making boards. There, at night, they were surprised and killed by Indians. [Paul C. Boethel, History of Lavaca County, p. 29]
William [II], the patriarch's other half brother, some sixteen years older, attached himself to the settlers near the Hallets and with them made a stand that eventually moved the county seat to its present site. His deeds and his colorful character, during his lifetime, completely overshadowed all his kin, including John Smothers, the latter-day patriarch. He was married, but his restless disposition belies the role of a family man, notwithstanding his good wife, Cynthia Kelly, and eight children In 1840 he was among the Lavaca settlers who pursued and caught the Comanches at Plum Creek. Again in 1842, he was among the twelve men from Lavaca County who served in Hays' Spy (Scout) Company, which maintained watch west of the Medina River for Mexican invaders. [Paul C. Boethel, History of Lavaca County, p. 21]
When the Mexicans did strike in the fall of 1842, he was in the company of forty-three men from Lavaca County under Captain Adam Zumwalt and participated in the engagement at Salado, where the company acquitted itself creditably. At home, he maintained a storehouse on one of the two business sites he had in the Hallet settlement. His zeal to secure the county seat for the settlement in 1852 made him the leader of the militant Hallettsville partisans. He, with C. C. Ballard and M. B. Bennett, agreed to supply and furnish cost-free the buildings for temporary quarters of the county officials. [Paul C. Boethel, History of Lavaca County, p. 56]
More than that, he put his money and political career on the line in the election of 1852. He was listed as the candidate for coroner on the town's ticket, and put up one hundred dollars cash on a bet with Spencer Townsend at Petersburg that Hallettsville would win the election. [William Smothers vs. Spencer Townsend et al., No. 104, Civil Docket, District Court of Lavaca County, Texas]
With the election won and the Petersburg partisans refusing to surrender the county records, he helped organize a posse and rode with it into the town, got the records, and safely escorted them back to Hallettsville. By nature William Smothers liked to mingle and travel with the fun-loving bucks, the characters in the early days who loved to drink, gamble and generally raise hell. Beginning in 1850, he operated a liquor store in Hallettsville; at times he would secure the necessary permits, then again he wouldn't, and in four instances necessary permits, then again he wouldn't, and in four instances he was indicted before complying with the law. A good index to the volume of business he did in the small town was the order he placed with Forbes & McKee, a supply house at Port Lavaca, for eight barrels of whiskey, some wine and tobacco. In the storehouse, Smothers sponsored---"promoted" may be a better word---activities that included those generally found in a liquor establishment: keeping a pool table and a monte bank, permitting play on such equipment, and card playing. For such activities he was indicted in nine instances, paying fines in six cases. He was a freelance card player and was indicted seventeen times for gambling, including one instance at a place anonymously described in the indictment as "a race track." He paid fines in ten of these cases. John Laughlin, Wilson Brooks and Dandridge Bradley, to mention a few, were among his card-playing cronies.
Then, too, he had horses and played them to win. In 1849 at a race at Petersburg, his enthusiasm caused him to put up a roan mare, her colt, a black filly and an ox wagon to cover a bet of $175 cash made by one A. Holdridge. Holdridge won the race and bet, and sometime later sold his winnings to Thomas Chaudion. When Smothers sued to set aside the sale, he lost an additional $24.40 as court costs. [William Smothers vs. Thomas Chaudoin, No. 30, Civil Docket, District Court, Lavaca County, Texas]
Smothers was not afraid to mix it. On August 24, 1851, he had an affray with Samuel Powers and came out second best, as Powers cut and stabbed him. Powers fled the country and Smothers was found not guilty in the case. His next affray was with the sheriff, John McKinney, on February 1, 1855. On their trials, Smothers was fined one cent, McKinney five dollars. On November 4, 1856, he was charged with an assault on Eli Holtzclaw, another county official, but, on trial, was found not guilty. His last affray of record was with L. J. Dickey, November 5, 1857; he again was acquitted. But all these activities did not fulfill his yen or exhaust his energy. On May 25, 1858, on learning that Governor H. R. Runnels was organizing six companies of volunteers for frontier service, Smothers raised a company of one hundred men, "a large number of whom are old Texians and quite familiar with ranging," and tendered their services. [William Smothers to H. R. Runnels, May 5, 1858. Governor's Letters, Texas State Archives, Austin]
In 1860 he was a candidate for sheriff and, despite thirty-three indictments on his record, he defeated A. G. Nolen in a hotly contested race. In November, 1861, he recruited a company of infantry, six officers and 142 enlisted men, which was later organized as Company A, Twelfth Texas Infantry. He served as commanding officer until May 7, 1863, when he resigned because of a back injury. [Paul C. Boethel, On the Headwaters of the Lavaca, pp. 69, 71, 78]. He returned to Hallettsville and engaged in hauling freight and supplies out of Mexico. He was killed in a "shoot-out" later in the year, reportedly by one named White, a Union agent. For posterity, he left a son, A. J. Smothers, sheriff of Lavaca County, 1882-1888, and a flock of other heirs, most all of whom were reputable citizens.
The patriarch, John Smothers [II], in 1860 was living on the old home place near St. Mary's with his widowed mother and his wife, nee Mary Hinch, whom he had married on October 13, 1859. Near there lived his newly acquired brother-in-law, Jefferson Butler, and his wife, Martha Ann. The two, Butler and Smothers, each in his own way, were human dynamoes. It was inevitable that their personalities, so marked in contrast with each other, should clash and eventually lead to bloodshed. Butler first appeared on the pages of the county's history in 1852 when his vote in the county-seat election was challenged on grounds he had not been a county resident for the time required by law. In 1855 he was the overseer on W. G. L. Foley's large plantation. The Butlers built their home, pens and barn on the Smothers league. There they prospered and in time had three children, Mary, Jeff and Fanny. In 1870 the mother died. On June 6, 1871, Butler married Kate Buckley, and they had two children, Henry and Willie. As the years rolled by, the Butler and Smothers families, as neighbors and kissing kin, got along well, lending one another a helping hand; that is, until about the mid-1880's. By then Smothers the patriarch, or kingfish as he would be called today, was a man of means and a large family. He had earned his keep and built his pile as a freighter and stock raiser. In the 1850's, with Hallettsville as headquarters, he and brother Charles entered the freighting business handling freight to Port Lavaca, LaGrange, Austin, Fort Mason and other points. [Paul C. Boethel, History of Lavaca County, p. 10]
At the outbreak of the Civil War, the commissary general of Texas was having difficulty supplying beef for the army, and Smothers was detailed to Louisiana to collect cattle. After the fall of Vicksburg and the capture of New Orleans, it was no longer feasible to transport cattle from Texas to the armies in the East. Thereupon Smothers was ordered home to report to Captain John Pulliam at Hallettsville, who had organized a company of troops there. He remained in service with the company until July, 1863, when he hired a substitute, Patrick O'Dougherty, for and during the war, deeding O'Dougherty two hundred acres of the John Smothers Headright. Smothers, once out of the army, resumed his work of gathering beef and shipping supplies to the troops in Texas and Louisiana. By 1885 Smothers and his wife, Mary, had a brood of their own. There were four sons, Robert, Henry, John W. and George, and five daughters, Lucy, Maggie, Fannie, Jennie and Lizzie. They had extensive land holdings in the southern part of the county, stretching from an area west of the Lavaca River east to the Navidad. Their brood had grown with the advent of in-laws. There was quite a contrast among the in-laws. Lucy, who married C. C. Turk; Fannie, who married E. A. Turk; and Maggie, who married Oscar Karney, represented the peaceful and law-abiding element. On the other hand, Jennie, who married Bird Kelly; Lizzie, who married Robert Kelly, and on his death, John McElroy; and John W. Smothers, who married Bird and Robert Kelly's only sister, Cora, represented the discordant factions in the otherwise tranquil home.
Bird Kelly and John W. Smothers didn't stray too far from the family nest, settling on the home place, practically in the shadow of the patriarch's lair. The tranquility on Smothers Creek, quiet for many years, then began to rock with the antics and hell-raisings of the young as they shed their "pin feathers," sometimes in fun and at other times out of pure cussedness, particularly Jeff Butler Jr. and Robert Kelly. On the night of Saturday, February 24, 1878, Jeff Butler Jr. was one of the many young bucks who came to Hallettsville to celebrate the ball held that night. After the ball, between one and two o'clock, the bucks broke into groups and held their post-mortems at sundry places about the square. One group, made up of W.A. Griffith, Collatinus Ballard Jr., Marshall Hamilton and Vol Ellis Jr., had a yen for oysters and made their way to Louis Schwartz's place to satisfy their hunger. But Schwartz had closed his shop and doused his light. The crowd then turned to Mose Cohen's barber shop, where they saw a light. There they found Butler and Jim Lynch. As they came up, Butler was shooting off at the mouth, and spoke of shooting a spotted dog nearby. Griffith and Hamilton protested, saying it was Pal Ballard's favorite hound. One word led to another, but the quarrel subsided and Butler and Hamilton shook hands in a truce. Ballard and Hamilton then sat down on the steps of the barbershop to make out what they were to do the rest of the night.
Butler was not content to leave the matter as it stood, disputing Hamilton's claim that he was as good a man as Butler. Hamilton shoved Butler and told him to go away. A bitter quarrel ensued, and the friends intervened, Lynch leading Butler toward Pepper's west corner and Ballard taking Hamilton in the opposite direction. Butler was cussing a blue streak but at no one in particular when Hamilton broke Ballard's hold on him and made for Butler. When Hamilton was about four or five steps from Butler, Butler shot him with the navy six-shooter he carried. In the February term, 1879, Butler was acquitted on the charge of murder. [State of Texas vs. Jeff Butler Jr., No. 1843, Criminal Docket, District Court of Lavaca County]
On July 31, 1880, Jeff was again in Hallettsville, rowdy and belligerent, liquored and armed. In no time he incurred the wrath and displeasure of O. C. Searcy, the town marshal, who made an effort to take Butler into custody on charges of disturbing the peace. Jeff did not take kindly to the suggestion of the marshal to come peaceably. This was not Jeff's way and he resisted. Searcy then pulled his pistol and attempted to subdue him, whereupon Butler matched the odds with a gun of his own. Searcy fired the first shot but missed, and Butler, in self-defense as claimed on his trial, fired back. With Rob Kelly, Eugene Kelly, Green Coleman, James Buckley and John W. Smothers as witnesses, Butler, on the trial of the case, February 9, 1882, was found not guilty of the assault. [State of Texas vs. Jeff Butler Jr., No. 2014, Criminal Docket, District Court of Lavaca County No. 2014]
By this time Jeff, with Robert Kelly, known as "Rob," was in deeper trouble as they were charged with raping Mary Hicks, February 1, 1882. Butler petitioned the court to place Kelly on trial first as he believed "there is no testimony against Kelly." Apparently, he was correct, for Kelly was acquitted, August 15, 1883. The young roosters continued their capers. On the night of Wednesday, December 8, 1882, between nine and ten o'clock, Jeff, Rob and a third person, identified only as having a "fine squeaking voice," rode to George Johnson's house on the Eugene Kelly place and inquired "where old George was." Harriet, George's tenant in common, told them he was not at home. Jeff, alone, dismounted, knocked on the window, and then went to the door, where he twisted off the knob. According to Jude, Harriet's son, Jeff told his "ma" if they didn't get out of the house, he was going to shoot. "My ma said he'd have to shoot---she'd die before she would get out." Two shots were fired into the house before the riders took their leave, the second striking Harriet in the heel. [State of Texas vs. Jeff Butler Jr., No. 2237, Criminal Docket, District Court of Lavaca County]
After terrorizing the blacks and being charged with the offense, Bob and Jeff apparently split, but neither of the two mended his ways. Jeff, on the contrary, got into serious trouble as he was charged with cattle theft: three head, June 1, 1883, from J. T. Culpepper; one head, July 15, 1883, from Joe Harrell. To cap it off, in the August term of the grand jury he was indicted as an accessory for having supplied Ed Martin with a horse to make his escape after Martin had made an assault with a pistol on John Wilson. Jeff was about to mend his ways but owed debts of seventeen hundred dollars as costs for his misdeeds. He was to marry and settle down but he contracted pneumonia and died on October 13, 1883, the day set for his wedding. Rob Kelly continued to carry his gun. In the January term of the county court, 1885, he was convicted of unlawfully carrying a pistol, second offense, and was fined $50 and costs of $26.75. Unable to pay the fine, he was freed on January 9 on a "convict bond" signed by Jeff Butler Sr., who contracted with T. A. Hester, county judge, to pay Lavaca County $15 per month for the hire of said convict. Apparently Butler kept the covenant to "treat the said convict humanely" as he set him loose to go his way. Butler's estate in 1890 was compelled to pay off this bond as by then he and the "convict" were killed, each in his own way and time. Jefferson Butler Sr. in 1889 was a well-to-do cattleman. [Estate of Jeff Butler Sr., No. 784, Probate Docket, County Court of Lavaca County, Texas]
There was but one fly in the ointment; he had leased 1,476 acres of grazing land on the Lavaca River on the southern tip of Lavaca County from Lewis Bishop for 3 cents an acre. On this tract he ran about 100 head. This ranch was just below the Smothers range, and whatever the difficulty was, it created "bad blood." On March 6, 1889, old Jeff was in Hallettsville; so was John W. Smothers [John B. Smothers, Jr. (II), Butler's former brother-in-law]. About nine o'clock, Butler and his drinking friend, Venc Cervenka, left town in a gallop and soon overtook Smothers and Dock Haynes on the road about a mile west of town near Jim Lee's place, and an argument took place. It was dark and what actually transpired is hard to establish, but Butler on his death bed said Smothers "killed me for nothing." In fairness to Smothers, Butler also stated, "I was not in a condition to know what occurred." Cervenka was no help; in addition to his difficulty in understanding English, he, in his own words, was "right smart drunk." [State of Texas vs. John Smothers Jr., No. 2734, Criminal Docket, District Court of Lavaca County] There was cursing and the mutual exchange of epithets. Butler, during the argument, dismounted, and was shot below the navel, the bullet traversing downward at an angle estimated by the attending physicians, D. C. Ross and J. E. Lay, from thirty-five to forty-five degrees. The gun was fired at close proximity for powder marks (not burns) were found on Butler's shirt. Haynes, in his testimony, established a case of self-defense of some degree for Smothers, stating Butler was trying to slash Smothers with a knife. No knife was found, but Haynes did establish the fact that "cows" were the basis of Butler's argument, thus giving credence to the anti-Smothers faction's contention that Butler was to testify on rustling done by the Smotherses. Butler lingered at death's door for six days and, despite Dr. Lay's calling on him sixteen times during this period, he died on March 12. [Hallettsville Herald, March 14, 1889] Smothers was indicted for manslaughter, tried August 10, 1891, and acquitted on the thirteenth.
Smothers had not been cleared of killing Butler before he was in another shoot-out [The above shooter was believed to be John B. Smothers, Jr. (II), while the following incident involved his son, John W. Smothers--WLM]. This time, it was in the sight of Judge George McCormick as he sat on the gallery of the Lindenberg Hotel on the southeast corner of the square on the afternoon of August 4, 1890. The court's rest was disturbed by the sound of gunfire at the hitching rack north of Elstner's Saloon on the street below. The closing scene of the Kelly-Stubbs feud was being played before his astonished eyes. [Paul C. Boethel, History of Lavaca County, p. 156] Rob Kelly, the convict hired out by Butler, had been killed at a dance by William Stubbs, the local constable, some time before. Kelly's kin, and they were many, dropped the word that Stubbs' days were numbered. The "word," on the trial later, proved to be the crux of the State's case: a set-up, or a well- rehearsed conspiracy. Be it whatever it was, it had all the earmarks of the modus operandi found in the subsequent killings. Constable Stubbs was on duty on the streets of the town on August 4. Late in the afternoon, he was on the street east of the saloon, where the plot was allegedly hatched, when Bird Kelly stepped out of the saloon onto the street to face him. It was then, according to the State, that Kelly provoked the difficulty, taunting Stubbs with insulting words and gestures. Stubbs took the bait and made for Kelly when, according to the State's version, he was cut down by bullets from John W. Smothers, who waited at the door inside the saloon. To the Stubbs faction in town, the firing meant but one thing and they scurried to the scene. James Tucker, the constable's brother-in-law, and Ed Stubbs, a brother, rushed in to aid. The brother made an attempt to pick up the officer's gun, but a hail of bullets sent him scampering down the street. Tucker, less fortunate, fell in the shooting and died of his wounds weeks later.
The court was in session at the time, and Kelly was put on trial soon thereafter. It ended in a mistrial as several of the jury stood fast for acquittal. To refute the State's charge of a conspiracy, the defense offered the testimony of James Hickey Jr., who stated that he had spent the previous night at Kelly's house; that he, Kelly, and Joseph Dufner had come to town together from Kelly's home on the morning of the fourth; that they spent the day "in the ordinary occupations and amusements of young men visiting town"; that he was with Kelly and Smothers in the barroom immediately prior to the shooting; and that at no time during the day "was the name Stubbs mentioned" within his hearing. Jack Rogers, James Cheney, and Hickey, all "eye-ball" witnesses, testified they saw Stubbs advance on Kelly with his pistol drawn. [State of Texas vs. Bird Kelley, No. 2840, Criminal Docket, District Court of Lavaca County]
The State succeeded in face of the defendants' "large and influential families" in changing the venue to Colorado County. There the State fared even worse; in separate trials, Kelly and Smothers were acquitted. On August 29, 1891, the State moved to dismiss the other five cases arising out of the shooting, candidly admitting it saw no chance for convictions. There were other shadows that haunted the patriarch and his kin, and about this time one Oliver B. Haynes made his debut. Anti-Smothers partisans were quick to classify him as the "gun" in pay of the clan. Some say he was an ex-Ranger; be that as it may, he was good with the double-action .41 Colt he carried. Allegedly, it was the gun Kelly fired in the shoot-out with the Stubbses.
One of the shadows was Henry Butler, son of Jefferson Butler and Kate Buckley, then about eighteen years of age, who had expressed deep resentment at the killing of his father. As his actions became intolerable, he was, according to the anti-Smothers faction, set up for a summary disposal. He was attending a dance on Rocky Creek about six miles south of town on October 5, 1892, by special invitation extended him by one friendly with the Smotherses, when a difficulty developed and he was cut down by the .41 Colt in the hands of Oliver B. Haynes in the presence of a slew of witnesses. Haynes' justification for the killing, as it appears in the court's records, was that Butler was making an assault on Jim Haynes, Oliver's brother; "that the killing of Butler was solely for the purpose of keeping Butler from shooting [Jim] through the head with a pistol which he had aimed at [Jim] when he was shot." Instead, it was Butler who was shot through the head. [State of Texas vs. Oliver Haynes, No. 3191, Criminal Docket, District Court of Lavaca County]
The case was called for trial during the February term of 1894, but it was continued on the absence of two key State's witnesses: Charles McElroy, who was ill, and Robert Bradley, who, according to the sheriff of Karnes County, was "dodging" the subpoena. The witnesses were cowed, intimidated by the threat of death. The case was eventually dismissed on motion of the State's attorney. The .41 Colt came into play again in late November, 1898, on the Smothers ranch in Lavaca County about four miles below the Smothers place. Here again the anti-Smothers faction cried "frame-up." According to their version, Bird Kelly and Haynes were sent by John Smothers, the patriarch, to secure a calf running loose, which they found and tied. Then a man identified as Combs told Jim Love to get the calf or turn it loose. Kelly and Haynes waited until Love got to the calf, then shot and killed him.
Love lived with his family in a shack in the neighborhood of the ranch. He was poor and in a bad way financially, but not so poor, his friends claimed, that he would rustle his neighbor's cattle. But in a statement to the press, the Gonzales Inquirer, December 1, 1898, the patriarch stated Haynes had been assisting him and Bird Kelly in rounding up and branding calves; that they had frequently missed a few animals but could never locate the thief; that acting on the tip of an unidentified man-"reliable man" as described by Smothers-that several of their yearlings had been driven into a field nearby, roped and tied to the bushes, Smothers sent Kelly and Haynes to go and see about it. Sure enough, they found a calf tied to a little shrub. As nobody was near, the two decided to hide in the brush and await results. This was a little past noon. About sundown, according to this version, Love rode up with a double-barrel shotgun in his hand, dismounted, and was about to take the calf away when Haynes called to him to "hold up." Love, as they told it, grabbed his gun and walked toward the brush where they were. When within a short distance, he leveled the gun at Haynes. Haynes, as related by Smothers, "drew his pistol and fired just in time to save his life. Love fell and died instantly, but the rumors have not abated to this day. [Gonzales Inquirer, Dec. 1, 1895]
SONS OF DEWITT COLONY TEXAS