In December of 1851, Jacob Fortenberry (1789-1862) was accused of stealing hogs. The records indicate that Allen Jones bought 50 hogs from Jacob’s son, Sevier.  Sevier was preparing to leave for Texas in September of 1850.  While Jones was driving the hogs to his farm, eleven hogs got away.  He assumed that they went back home, and one year later, accused Jacob of keeping and hiding the hogs.

The following are the legal proceedings.  The original documents have been transcribed for easier reading. There will be a link to the originals soon.

 

 Accusations against Jacob Fortenberry

On this 18^th day of December 1851 personally came and appeared before me the undersigned authority, Allen B. Jones, who being duly sworn, deposed and said that on or about the fifteenth of November eighteen hundred and fifty one, that one Jacob Fortenberry a resident of said state and county that to the best of my knowledge did feloniously steal, take and carry away and convert to his own use and behoof (added by transcriber, behoof is a word originating from middle English meaning advantage or profit) greatly to the prejudice of this deponent, five of this deponent’s hogs, to wit; three spotted barrows marked with a swallow fork in the left ear, with two other hogs, contrary to the statutes of this state and laws made and provided in such cases.  The deponent further says that the said hogs were of the value of ten dollars each.  This the 18^th day of December AD 1851. Allen B. Jones

This done, sworn to and subscribed before me.

This the 18^th day of December AD 1851

James Smyth J.P.

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Charges filed against Jacob

Be it remembered that on this 18^th day of December AD 1851 came before me, James Smyth an acting and duly commissioned Justice of the Peace in and for the County of Lawrence,  Allen B. Jones and filed his complaint in writing and under oath wherein he stated that in or about the 15^th day of November AD 1851 that one Jacob Fortenberry a resident of the County of Lawrence to the best of his knowledge did feloniously steal, take and carry away and convert to his own used and behoof greatly to the prejudice of said deponent five of his hogs, to wit; three spotted barrows marked with a swallow fork in the left ear with two other hogs contrary to the statutes of this State and laws made and provided in such cases.  And further that he says that each of the said hogs were of the value of ten dollars each.  And thereupon I examined the said Allen B. Jones touching said offense and it appearing on such examination that the said Jacob Fortenberry did commit the offenses aforesaid, I issued a warrant directed to J.B. Jeffrey, Constable of Reeds Creek Township in said County commanding him to apprehend the said Jacob Fortenberry on said charge and to bring him before me to be dealt with according to the law.

Given under my hand this 18^th day of December AD 1851

James Smyth J.P.

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Warrant for Arrest of Jacob Fortenberry

 The State of Arkansas, County of Lawrence

 To the Constable of Reeds Creek Township in Lawrence County

 Greeting. 

Whereas complaint has been made in writing and under oath by Allen B Jones before me, James Smyth an acting and duly commissioned Justice of the Peace in and for the County of Lawrence, that on or about the 15^th day of November AD 1851, that one Jacob Fortenberry, a resident of the County of Lawrence in said State, to the best of his knowledge did feloniously steal, take and carry away and convert to his own use and behoof greatly to the prejudice of said deponent five of said deponent’s hogs, to wit; three spotted barrows marked with a swallow fork in the left ear with two other hogs contrary to the statutes of this State and laws made and provided in such cases.  This deponent further says that the said hogs were of the value of ten dollars each, and whereas upon examination according to law before said Justice it hath appeared that such offense hath been so committed, you are therefore hereby commanded to take the said Jacob Fortenberry without delay and bring him before said Justice to be dealt with according to law.  Hereof fail not and make due return of this writ to said Justice.

Given under my hand this 18^th day of December AD 1851

 James Smyth J.P. 

The dialog in the following depositions is as close as we will come to hearing our forefathers speak.  Jacob, Oliver Rice, William and Matilda Jane are all deposed.  The records are incomplete. Some depositions are completely missing. These depositions were taken by the Justice of the Peace of Reeds Creek Township, Lawrence County, Arkansas over the three days from December 19th to December 22nd 1851. Punctuation has been added by the transcriber and some minor changes in wording and spelling have been made for clarity. Where EXAMINATION is included in the text, it is assumed to mean that the JP asked a question of the witness. If this assumption is correct, then the questions were not recorded in the original text. However, this is only a supposition as there is no explanation included in the text.

Depositions – Witnesses for the Complainant

And now on this 19th day of December AD 1851 at the office of said Justice of the Peace in Lawrence County comes the said Jacob Fortenberry in custody of said constable and thereupon I proceeded according to law to examine the complainant and witnesses in regard to said charge and upon examination so had on said 19th day of December AD 1851 at said county the following proceedings were had, to wit.
Allen B. Jones the complainant being by me first duly sworn on his oath stated that;
“I bought some hogs off Jacob Fortenberry’s son, Sevier Fortenberry. At the time that I bought them, he told me that he sold me all he had at that time and him and me counted them and made them of fifty head. I started next morning after buying them to drive them home from Mr. Fortenberry’s lot and before I got to the White River, I lost eleven head. Sevier Fortenberry and Mr. Fortenberry’s black boy helped me to start the hogs from the lot aforesaid. I paid Sevier Fortenberry a horse and saddle for said hogs. That was the year 1850 in September to the best of my recollection.
“In the summer following as well as I can recollect, Mr. Jacob Fortenberry came down on White River to James Fortenberry’s and afterward I asked said James Fortenberry if he was asking Mr. Fortenberry about my hogs which I supposed had got back. He said he had and that Mr. Fortenberry told him that some three of them had got back. In trading for those hogs, Sevier Fortenberry told me that he had bought some of the said hogs of James Fortenberry of Lawrence County as well. As well as I recollect, Sevier Fortenberry told me that he swapped places with James Fortenberry and also swapped hogs. After losing the said hogs before I came to White River, I drove the remainder home. Mr. Gray came to my house and left word with my family that the hogs were still in the range at Mr. Fortenberry’s settlement.
“I came to see him about the hogs and Mr. Jacob Fortenberry told me that some of the hogs had got back but that he believed they were all dead except a blue sow which he said he thought was not dead. Mr. Thomas Gray went with me at the time to said Mr. Fortenberry and Jacob and Oliver Fortenberry advised us to go to Thomas Mullens and that we might get some information there.
“We went there and Mullens told me he thought if we would go back to Mr. Jacob Fortenberry’s and to look by a pen out the orchard side that it was likely we would find the said hogs there. And we went there and looked and found three hogs which I supposed to be mine to the best of my knowledge and judgment and marked as well as I recollect with a swallow fork in the left ear. And some of the hogs I bought of Sevier Fortenberry were marked like said hogs that I found in said pen. They were in a separate pen from where he had other hogs a fattening. The pen the said hogs were in was back behind a crib from the road. I recognized said hogs to be mine by knowing them when I purchased them from Sevier Fortenberry.”
Allen B. Jones
Sworn to and subscribed before me this 19th day of December AD 1851.
James Smyth J.P.

Now on this 20th day of December AD 1851 the foregoing case being continued came a witness to wit, H.W. Harlow, being by me first sworn on his oath stated that;
“Sometime after James Fortenberry sold his place and moved over to Strawberry, I seen him one day and bantered him to sell me some hogs that I thought he had running about my plantation. He said he swapped his hogs to Sevier Fortenberry. He said, “I don’t own a hog on Reeds Creek.”
“My understanding was that his hogs before he moved all run on or about Reeds Creek. I was at Mr. Pyland’s sometime along in the past fall and Mr. Pyland asked James Fortenberry about hogs that was getting in his field and if they were his to take them away and he said they were not his hogs. “
H.W. Harlow
Sworn to and subscribed before me this 20th day of December AD 1851.
James Smyth J.P.

Rheubin White being by me first duly sworn on his oath stated that;
“As I was at Mr. Pyland’s one day and James Fortenberry came along and Mr. Pyland described some hogs to him that was getting in his corn and asked him if they were his and he said they were not for he had no hogs running on Reeds Creek. That was this fall past.”
Rheubin White
Sworn and Subscribed before me this 20th day of December AD 1851
James Smyth J.P.

B.H. White being by me first duly sworn on this oath stated that;
“I was at Taylor Fortenberry’s one day this last fall and James Fortenberry came there and said that he had or had had, I don’t recollect which, all of his hogs in an oats field and in good order. When he said it was about the time that the hogs in dispute were getting into Mr. Pyland’s corn. I was at Mr. Hooton’s and Mr. Pace’s gathering corn when said hogs were in a pen there and some of the crowd asked James Fortenberry if the hogs in the pen were his. He said they were for that they were all in his mark. Mr. Pace said not and he looked at them and then said that one was not but that sometime he made a mistake in marking and cut the wrong ear. Mr. Pace and Hooton said those were the hogs that was destroying their corn and the hogs that James Fortenberry told Mr. Pyland were not his hogs. So I heard Mr. Pyland say.”
B.H. White
Sworn and subscribed before me this 20th day of December AD 1851
James Smyth J.P.

Isaiah Durham being by me first duly sworn on his oath stated that;
“About the time we cut oats last harvest, James Fortenberry and I was talking about the hogs and he said they belonged to his daddy. I don’t know that they are the hogs in dispute. The hogs referred to had a swallow fork in the left ear to best of my recollection. That conversation passed sometime in July last.”
Isaiah Durham
Sworn to and subscribed before me this 20th day of December AD 1851
James Smyth J.P.

Thomas Mullen being by me first duly sworn on this oath stated that;
“The hogs in dispute James Fortenberry raised them and Sevier Fortenberry told me he bought them and that he bought all the hogs James Fortenberry had and then my understanding was from Sevier Fortenberry that he sold said hogs to Mr. Allen B. Jones for a horse and saddle. He wanted to sell them to me for a horse I had. I seen Sevier Fortenberry feeding them not far from where I live. I seen the said hogs, three of them, in a pen at Jacob Fortenberry’s behind a little corn crib in the orchard. I don’t believe they could be seen in the pen from the road. Sevier Fortenberry told me that he swapped place and hogs with James Fortenberry and that he got all his hogs. They were marked with a swallow fork in the left ear. I know the hogs by the mark for they were raised close by me by James Fortenberry. EXAMINATION Sevier Fortenberry told me he let James have all the hogs he had. That was as he was fixing to go to Texas. James Fortenberry had some hogs with a swallow fork in the left ear and a crop off the right as well as I recollect. I think he had one or two trying to get the our of his father’s mark into his own. I never heard of James Fortenberry selling the said hogs to Jacob Fortenberry until they were in the pen at Mr. Hooton and Mr. Pace’s. The hogs in the said pen in dispute were two the them marked with a swallow fork in the left ear and another had, I think, the left ear torn of so that it hung down. The other ear I don’t recollect for certain the mark in it. There was four hogs in the pen at Mr. Hooton’s and Mr. Pace’s and I took one of them out of the pen as Isaiah Durham’s hog. I knew it to be his hog. I raised it. James Fortenberry claimed said hog as his property.”
Thomas Mullen
Sworn to and subscribed before me this 20th day of December 1851
James Smyth J.P.

Cullen Pyland being by me duly sworn on this oath stated that;
“During summer, I was troubled with some hogs about where I live and I asked Jacob Fortenberry whose hogs they were and he told me that were either his or his son James and afterward I asked said James Fortenberry about the hogs and he said they were not his hogs that he had no claim to them. Said hogs were I think the hogs that was put up in the pen at Mr. Hooton’s and Mr. Pace’s. One of said hogs was I think of a dirty color. Two others were I think black and white spotted. Two of them were marked with a swallow fork in the left ear and the other had a swallow fork in the right I think. Said hogs were in my cornfield betimes. They were large hogs and in good order. If they were made fat, I think they would weigh two hundred. EXAMINATION The hog that Mullen took out of the pen, he said it was Isaiah Durham’s. That he raised it and I think he said he sold it to a Mr. Smith who sold it to Durham. Said hog had a swallow fork in the left ear and the other ear was off.”
Cullen Pyland (his mark) attest L. Lumpkin
Sworn to and subscribed before me this 20th day of December AD 1851
James Smyth J.P.

Riley Hooton being by me first duly sworn on his oath stated that;
“The first I known on the hogs in dispute was in my field. I sent word to Jacob Fortenberry about them as they were troubling me too much and that if they were his to take them away on Sunday after I sent him word. I got the hogs in the field and I put them in a pen. And Jacob Fortenberry said they were not his hogs but would be when Jimmy left. Afterwards Jacob and James Fortenberry came and said the hogs were belonging to him; that they were in his mark. That is James Fortenberry said so. EXAMINATION There was nothing said as to delivering said hogs when said Jacob and James Fortenberry came to the pen after them, but I think James said he was letting Jacob have the hogs.”
Riley Hooton
Sworn to and subscribed before me this 20th day of December 1851
James Smyth J.P.

Jacob’s Plea

And thereupon I informed the prisoner of the charges alleged against him and that he was at liberty to refuse to answer any questions put to him whereupon the said Jacob Fortenberry without oath stated as follows to wit;
“I, Jacob Fortenberry, deny being guilty of the charges alleged against me in this case.”
Jacob Fortenberry
Which statement so made by said prisoner was by me reduced to writing and read over to him and by him declared to be the truth and to be correct.
Given under my hand this 20th day of December AD 1851
James Smyth J.P.

The foregoing case by virtue of law adjourned until Monday the 22nd day of December AD 1851 and the prisoner is hereby ordered to remain in custody of J.B. Jeffrey, Constable to await his trial time set for adjournment 8 o’clock A.M. of said day at which time the parties and witnesses are notified to be in attendance.
Given under my hand this Saturday the 20th day of December AD 1851
James Smyth J.P.

Depositions – Witnesses for the Defendant

Now on this 22nd day of December AD 1851, the prisoner being present came the witnesses on the part of the defendant and the following proceedings were had to wit.
Joseph Taylor being by me duly sworn on his oath stated that;
“About twelve or fifteen months ago, I heard James Fortenberry say that he let Jacob Fortenberry have 13 or fourteen head of hogs. He told me so several times since that. He also told me that he swapped a part of his hogs or the balance of them, I don’t recollect which, to Sevier Fortenberry sometime in March last I think. James Fortenberry showed me someof the hogs that he said he let the old man have and I remarked that all of them was not there. He said the old man took bad care of them and that some of them died and said that he ought to take them back for that he would make better by it. He said not for that the old man agreed to take them that he intended to make him do it. After James Fortenberry started for Texas, he stopped at my house and Jacob Fortenberry came there and told that his hogs were up in a pen at Hootons and that they talked of pasting them and James told the old man that they were his and he said not for that he never delivered them to him. And James said, ‘Daddy, you know those are your hogs.’ And said they had better attend to them. And they went to see the hog and when James came back I asked him if they were his. He said they were. I asked how many was in the pen. He said four, but that Thomas Mullen claimed one of them. I asked what he done with the balance. He said he let his father have them. He said they grew and were in very good order. I asked him if he got any better price than he was to get. He said not, that his daddy took them at the price he was to take them. He told me that Hooton helped him make a slip gap and turn the hogs out of the pen and that he (James Fortenberry) helped the old man home with them.”
Joseph Taylor
Sworn and subscribed to me this 22nd day of December AD 1851
James Smyth J.P.

Oliver R. Fortenberry a witness being by me first duly sworn on his oath states that;
“In the latter part of last year or the first part of this year, I don’t know which, Jacob Fortenberry and I had a conversation about the hogs and he said the was not going to take them. Whether it was that some of the hogs were dead or that they were not as large as he thought they were, I am not able to say. In the latter part of summer on in the first part of fall past, this was about August last, this bunch of hogs in dispute between the old man and James came along in the road meeting me. Jacob and James Fortenberry were then present. I asked James Fortenberry why it was that he did not put those hogs up. He replied they were none of his hogs for that he let the old man have the hogs about a year ago. I told him that the old man said he would not take the hogs and I told him that if neither of them would put the hogs up, they would die for want of care or such like in the winter. Those hogs that were in the lane at the time referred to are some of the same hogs that is now in dispute and in the pen at Jacob Fortenberry’s. One the hogs now in the pen, Mr. Jones never got it from Sevier Fortenberry. It was in my stubble field running with my hogs when he got the hogs from Sevier Fortenberry. He (Sevier Fortenberry) told me that he let the old man have that hog for a fat hog to take him to Texas. Said fat hog he told me got fat in Joseph Fortenberry’s field. There was four hogs in the pen. That is the hogs in dispute. One is white, principally so, with a crop of the right (ear) and a hole in the left (ear), I believe. Two others are black and white spotted, I call them. One of them (hogs) is marked with a swallow fork in the left ear and the other (hog) a swallow fork in the right (ear). The other (hog’s ear) some torn so that it hangs down. That is the hog was in my stubble field. The hog pen where those hogs is up in at the old man’s is there for many years. I think (that pen) is and was the principal hog pen on the place.” EXAMINATION The witness states that Sevier Fortenberry told him that he exchanged the hog referred to for a fat hog sometime in the fall before he moved to Texas, but cannot state the exact time. “Sevier Fortenberry started for Texas about in September of October of last year (1850). James Fortenberry left for Texas about the last of October or the first of November of this year (1851).  I don’t know positively that the hogs in dispute between my father and Mr. Jones are belonging to my father.”
O.R. Fortenberry
Sworn to and subscribed before me this 22nd day of December AD 1851
James Smyth J.P.

William Fortenberry, a witness being by me first duly sworn on his oath stated that;
“In the year of 1850, I was at father’s and James Fortenberry sold him 14 head of hogs for a dollar each. As well as I recollect, it was in January of that year. Part of the hogs died and father wanted James to take them back and he never took them back. I believe the hogs in dispute to the best of my knowledge are the same hogs. The hogs he never did deliver the remainder of them until this fall. I did not see James at the time of delivering the hogs. I heard him say that the hogs in Mr. Hooton’s pen before he delivered them belonged to him. I seen him come to hunt for them sometime last winter, but I think did not find them all then. EXAMINATION I believe the hogs in dispute are my father’s hogs. I don’t know of my own personal knowledge that they are his. I believe that James Fortenberry sold two of the hogs in dispute to father.”
William Fortenberry
Sworn to and subscribed before me this 22nd day of December AD 1851
James Smyth J.P.

Jane Fortenberry a witness being by me first duly sworn on her oath stated that;
“I was at Mr. Fortenberry’s and James Fortenberry came to hunt the hogs bu did not find them. I heard Mr. Fortenberry say he would take the hogs. I heard james Fortenberry say he let hi have the hogs an dI heard Mr. Fortenberry say he got the hogs. EXAMINATION I did not particularly know James Fortenberry’s hogs.”
Jane Fortenberry (her mark) attest L. Lumpkin
Sworn to and subscribed before me this 22nd day of December AD 1851
James Smyth J.P.
The witnesses on the part of the defendant being examined, rebutting is offered on the part of the plaintiff as follows to wit.

Thomas Gray being by me first duly sworn on his oath stated that;
“I met William Fortenberry near the house of Joseph Taylor and we talked about this case in dispute and he said that James Fortenberry sold his father 14 head of hogs, but that he did not know positively that the hogs in dispute were or were not the same hogs. EXAMINATION That took place after Mr. Jones demanded the hogs of Jacob Fortenberry.”
Thomas Gray
Sworn to and subscribed before me this 22nd day of December AD 1851
James Smyth J.P.
Allen B. Jones being duly sworn on his oath states and verifies as sworn to by Thomas Gray the above witness.
Allen B. Jones
Sworn and subscribed before me this 22nd day of December AD 1851
James Smyth J.P.

Jacob’s Bail Bond

Whereupon upon examination so had and due deliberation being had thereon, it is the opinion of the Justice that the prisoner Jacob Fortenberry is probably guilty of the above charge and said offence being bailable, it is thereupon ordered that the said Jacob Fortenberry enter into recognizance with good and sufficient securities to the State of Arkansas in the sum of one thousand Dollars conditioned that he will appear before the circuit court of the county of Lawrence on the first day of the next term thereof to answer the above charges and not depart the same without leave of said court. And thereupon came Jacob Fortenberry and Oliver R. Fortenberry as his security who acknowledge themselves jointly and severally to owe the State of Arkansas the sum of one thousand dollars to be levied of their respective goods and chattels, lands and tenements to be void upon the conditions of aforesaid, which security is approved of by me and thereupon said Jacob Fortenberry is discharged given under my hand the 22nd day of December AD 1851.
And thereupon, Allen B. Jones in the foregoing case was ordered to be bound over in recognizance for the sum of one hundred and fifty dollars to the State of Arkansas conditioned that he will appear before the next term of the Circuit Court of Lawrence County on the first day of said term to be holden at the town of Smithville then there to testify in relation to and in the above case and not depart the same without leave. Whereupon the said Allen B. Jones came and entered into recognizance with Thomas Gray and A.J. Pace as securities who acknowledged themselves jointly and severally to owe the State of Arkansas the sum of one hundred and fifty dollars to be levied of their respective goods and chattels, lands and tenements to be void upon the conditions aforesaid.
Also it is further ordered that Thomas Mullen, H.W. Harlow, A.J. Pace, Cullen Pyland, Riley Hooton, B.H. White and Rheubin White who are deemed material witnesses in the foregoing case, enter into a joint recognizance in the sum of one hundred dollars each conditioned that they will respectively appear before the Circuit Court of Lawrence County on the first day of the next term thereof then there to testify in relation to the charges alleged in the foregoing case and not depart said court without leave and thereupon came the said Thomas Mullen, H.W. Harlow, A.J. Pace, Cullon Pyland, Riley Hooton, B.H. White and Rheubin White who severally acknowledged themselves to owe the State of Arkansas the sum of one hundred dollars each to be void upon the condition aforesaid.
Given under my hand this 22nd day of December AD 1851
James Smyth J.P.

Whereupon I, James Smyth an acting Justice of the Peace in and for the township of Reeds Creek in the County of Lawrence do hereby certify and make known that the foregoing statement of Allen B. Jones complainant and A.J. Pace, H.W. Harlow, Rheubin White, B.H. White, Isaiah Durham, Thomas Mullen, Cullen Pyland, and Riley Hooton, witnesses, were reduced to writing by me on the day and at the place aforesaid in their presence, read over to them respectively and by them respectively signed in my presence. And that the statement of said Jacob Fortenberry was by me reduced to writing and read to him and by him declared to be true.
As also the statements of Joseph Taylor, Oliver R. Fortenberry, William Fortenberry and Jane Fortenberry, witnesses on the part of the defendant, their statement was reduced to writing by me on the day and at the place aforesaid in their presence read over to them respectively and by them respectively signed in my presence, and also that Thomas Gray and Allen B. Jones as rebutting testimony was by me reduced to writing and read over to them respectively and by them signed in my presence. And I do certify the foregoing to be a true statement of said examination and proceedings before me had in the premises and hereto I do now set my hand to the end that the same with the recognizance accompanying may be transmitted to the Circuit Court of Lawrence County, Arkansas.
Given under my hand this 22nd day of December AD 1851
James Smyth J.P.
I do further certify that Allen B. Jones appeared as persecutor in this case and acknowledged himself to be prosecutor and liable for costs and that he resides in the county of Jackson in this State.
Given under my hand this 22nd day of December AD 1851
James Smyth J.P.

The Judgement

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