Strange and missing testimonies
The header of this article hints at the fact, that some of the surviving testimonies or parts of testimonies from the Tom Dula trial, apparently have no bearing on Tom's guilt or innocence. I therefore wonder why these testimonies were send to the Supreme Court while others were not. I also wonder if some obvious questions were not asked, and if not then why? If they were asked, why then were they not submitted to the Superior court? In this article I will take a closer look at both kind of testimonies.
The strange testimonies
Let me jump straight into the testimonies in question.
Betsy Scott stated in her testimony that "I saw Dula on the Wednesday before that Friday some three miles from Wilson Foster's house, he was on foot". Three miles from the Foster home was actually closer to his own home than to the Fosters even if it was in that direction he was spotted, and besides we already know from Wilson Fosters testimony that Tom actually visited Laura on the "Wednesday before the Friday".
I have already mentioned James Isbells statement about how they dragged a mudhole near Francis Melton's house while searching for Laura (The story of Tom Dooley II, Laura disappears). If the testimony is placed correctly in the summary, this dragging took place while Tom was placed under arrest. Nothing was found, except for some footprints leading to Yadkin River. There is no way these footprints could be related to Tom as he was in jail, so why send this part of the testimony to Supreme Court?
Ann Meltons brother, Thomas Foster, was recalled by the prisoner only to testify that he slept with Pauline Foster part of Friday night, and that "I have seen Pauline and Dula, sitting in each others lap." Again this testimony has apparently nothing to do with the actual murder. Except of course to prove that Pauline did not leave the house on the night between Friday and Saturday. But why would the defense be interested in documenting that? Unless of course there was more to Thomas Foster's testimony, that was left out in the summary of the trial.
J. W. Winker testified "I was present when Pauline Foster was examined at a store in Elkville before a magistrate about this matter. After her examination she remarked to a person there present: 'I would swear a lie any time for Tom Dula, wouldn't you George?'". Later Pauline told the court, that she had said this a a joke. Again it's difficult to see the relevans of this testimony as Pauline apparently didn't swear a lie for Tom Dooley. But maybe she swore one against him!
The photo on the left shows present day's Eller's Store in Elkville, almost on the spot, where Cowles' Store used to be.
When the second trial was appealed to the Supreme Court, the court clerk only sent the same statements that he did at the first appeal. The supreme court was not satisfied, so the clerk, adviced by Judge Shipp, made out a summary of the second trial, and sent that as a supplement. Also in this summary, some things seems strange, and unessecary. For example: "It was in evidence by the sister and mother of Ann Melton that she came to their house and that she requested a little girl to go down to the prisoner's mother's and tell him to come up and get his liquor, but if his sister Eliza, was there but to tread on his toes or pinch him and tell him mother wanted to see him. The girl went down and did not find him" We know that Tom actually did get the liquor at a later time the same Thursday. We could also ask ourselves why it was important to Ann Melton, that Eliza Dula was not made aware of the liquor? But anyhow, it doesn't seem important that Ann sent a little girl (probably one of her younger sisters) in stead of going herself. She was notoriously lazy, and this could very well have been her reason for not going herself.
In the judge's summary it is stated that Ann had a sore mouth and treated it with alun. The strange thing is, according to Pauline Foster's testimony it was Tom Dooley who had a sore mouth: "I saw the prisoner on Thursday morning, the day before. Ann Melton had gone off from the house, and he came from the directions she had gone. He asked me for some alun, said his mouth was sore. He said he had met Mrs. Melton up on the ridge and had asked her for some, and she had told him to get it at the house." It was on this occasion that Tom also borrowed the canteen and gave it to Carson McGuire to have it filled up with liquor, so apparently he did not come alone to the Melton place. But no matter if it was Tom or Ann who had a sore mouth, why did the clerk and judge find it important enough to tell the Supreme Court? By the way, these two factors (the alun and the canteen) was interpreted by the prosecution, as evidence of an agreement between Tom and Ann to commit homicide! The defense objected but was overruled.
Then follows a passage, that acutally was relevant: "Various declarations of Ann Melton previous to the alleged murder threatening vengeance against Laura Foster were proved. Declarations of hers on Thursday previous to the day which she was killed, stated that she had contracted a venereal disease from the prisoner and that he had got it from Laura Foster and that she intended to have her revenge or that she intended to kill her or have her killed were proved by a witness." This statement is of course important (the witness in question must have been Pauline Foster), but it implicates Ann Melton, not Tom Dooley in the murder, so why wasn't it taken into consideration?
The summary later has: "There was evidence of a secret and private conference between them, prisoner and Ann Melton on Thursday morning on the ridge between Ann Melton's and her mother's." I think this is taking the concept of evidence a little too far. If two people that happens too meet and speak without witnesses present, is evidence of them having a secret conference, then I have had a lot of secret conferences.
Another thing from the summary is the mention of another witness, Eliza Anderson, who must have been Mrs. James Scott's younger sister. She is not mentioned because of what she said in her testimony but only because the defense had asked her "if she had any relations to John Anderson, a man of color." This question was objected to by the prosecution and ruled out by the judge, so why was it important to tell the Supreme Court that it had been asked to discredit Ms. Anderson, when nothing is said of what she actually testified?
And finally the clerk writes in the summary: "There was a mass of circumstantial testimony in evidence before the jury tending to show the prisoner's connection with the alleged homicide". If this was the case, why didn't the clerk provide any of this circumstantial evidence? It sound a little easy just to say: "Oh, we heard a lot of evidence" and then not tell what this evidence was.
The questions that wasn't asked?
More of the testimonies of the 80 witnesses in the case must have been important, so why weren't they forwarded to Supreme Court in either of the cases? And some obvious witnesses did not testify at all. Why?
In an earlier article, Circumstantial Evidence, I have already mentioned one of the questions, that wasn't asked. Or if it was asked, why was the answer not forwarded to the Supreme Court? That question should have been asked to Lotty Foster, and it would simply be for her to confirm or reject the claim, that Ann, Tom and herself had been out all night between Thursday and Friday emptying the canteen of liqour. If she confirmed it, it would if not have cleared Tom and Ann, then at least have created doubt if they dug the grave the night before the murder. If she had rejected it, it would have implied, that Ann (or Pauline who testified about this) was lying and thereby strengthening the prosecution's case. In both cases the answer would have been relevant for the Supreme Court. I see only two reasons for the missing question: It was never asked or it was asked, and the answer confirmed that Tom and Ann had been busy drinking not digging on Thursday night thereby weakening the case against Tom.
But there are other relevant questions that seems missing. If Zebulon Vance was as good a lawyer as he seems to have been, he must have asked them during trial, but where are the answers?
Why wasn't Wilson asked why he conducted the search alone on Friday morning. He could easily have gotten help, if not from anyone else, then from some of his own seven children. And I would also have asked, how he could miss the horse when he got to Bates place. It was only 75 yards from the road. And even in hilly terrain and with some vegetation, it should not have been to difficult to find something as big as a horse. And by the way: Did he meet anyone at all that Friday morning, before visiting James Scott's for breakfast.
Francis Melton did not testify at the case at all. He may have left the county at the time of the trial but could have been subpoenaed as a witness anyway. Even if Pauline Foster did not see Tom that Friday morning, going in direction of or coming from Bates Place, Francis Melton, who lived next to James Melton's place, might have.
Another who did not give testimony was Tom's sister Eliza. As his mother Mary wasn't at home Friday before noon, andt Eliza was, she could have confirmed - or the opposite, that Tom was present at the Dula cabin until his mother returned. And what would she have done, knowing that Ann Melton had liquor for Tom. Why was it important for Ann to hide that fact for Eliza? She may also have been able to answer other questions about Tom and his relations to women. Either the prosecution or the defense should have called her to the stand.
Did David Horton, James Isbell's father in law confirm the way the body was found? We don't know as his statement are lost.
Was Doctor Carter asked if anybody else in the neighborhood had contracted syphilis? For instance some from the "upper class" of the valley. He could have answered yes or no, and did not have to jeopardize his vow of secrecy as a doctor.
Why wasn't James Isbell questioned about his relationship with Wilson and Laura Foster before the murder? What made him the single most active in the search for Laura? He claimed, that he had "no feeling of enmity against the accused", but he took part in the search for several months and even paid for the prosecutors assistants. Why didn't the defense dig into that?
Besides this I would have liked to know what Ann and Pauline did Thursday. We only know what they did Friday, but they as well as Tom could have prepared the grave on Thursday. How close was Pauline Foster's relationship with Laura Foster? We know that they knew each other before Pauline moved to Elkville, but how close were they? Who was Manda Barnes, and why did Tom try to avoid meeting her that Friday morning? I'm also missing a lot of other answers, but as the unanswered questions are abundant, I will not elaborate further on this. We will never know if the questions were asked or what the answers was, but it would clearly make it easier to decide wether Tom was actually guilty or not. I also wonder why Ann Melton spoke of Laura Foster as her best friend - if she was actually referring to Laura.