The prosecution in the case against Will Sheffey sought to introduce evidence on the Night Marauder attacks that had taken place in Knox and Blount counties. The defense, naturally, were determined to keep such testimony out of the trial. Attorney General Peace argued that he felt the other cases would support the investigation into the attack on the Wells home. The investigator hired by Hultquist to help build the case had prepared the state by citing People v Molineaux (168- NY 264):
Upon the trial of the defendant for the commission of a crime, proof of a commission of another crime is generally not admissible, but there are exceptions to the rule wherein such evidence may be given and are as follows: (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person accused with the commission of the crime on trial.
Descriptions of earlier attacks that were nearly identical to the attack on the Wells home would show that there was a pattern. Judge Blair listened to both sides and asked for a day to consider the issue.
Ultimately, the evidence of previous attacks was introduced in a roundabout way. The state introduced the fact that Sheffey had once stood trial for the murder of Dora Davis. They did this under the guise of collecting multiple samples of Sheffey’s handwriting. Ersie Davis took the stand to describe a letter Sheffey had written to her father in January 1915, six months before Dora was killed. Ersie said she no longer had that specific letter, but she still possessed several short notes from Sheffey and felt sure she could recognize his writing. Miss Davis was followed on the stand by Judge Ambrose M. Payne of Sevierville who had served as a counsellor in the Davis trial in 1915. He also recalled a letter written by the defendant to Mr. Davis, and judge stated that Sheffey had at that time claimed authorship. All of this was laying the groundwork with which to compare known samples of Sheffey’s writing with the “Emery letter” that had been sent to McCampbell when he was Sheriff. As the witnesses calmly referred to the murder trial that had taken place a decade earlier, Judge Blair entertained the defense teams persistent objections and overruled every one of them.
During the Friday session of court, on August 21, 1925, the state successfully had the Emery letter entered into evidence and called upon a handwriting expert to compare Sheffey’s writing samples to the anonymous letter sent to former Sheriff John McCampbell. In seeking to enter the letter as evidence, Peace insisted that the letter represented a threat to women throughout the county. “J. J. Emery” said he wanted women to “holler” so he could have the fun of shooting them. Mrs. Wells screamed and was shot. There was a direct connection.
The defense bitterly opposed including the letter at all. They cited precedents in which it was ruled inappropriate to compare a known writing, such as a letter signed and recognized by Sheffey, with a “questioned writing” such as an anonymous letter taunting law enforcement. They insisted that the letter was written before the attack on the Wells’ home, so it was irrelevant. They pointed out that it did not constitute confession of the crime for which Sheffey was being tried. Furthermore, they said that even if it could be proven that he wrote it that it would mean nothing because of how vague it was. The jury was excluded during these debates, but in the end Judge Blair decided the letter could be read to the jury with clear instructions.
Kramer persisted in his objection to allowing the jury to see the entirety of the letter. He maintained that it could not be a “threat” since it came four months before the attack on the Wells and did not mention the Wells. He, with the support of Gamble, asked if the court intended to reopen all of the Knoxville cases as well based upon this letter. “No,” Peace replied. The intent was simply to explore the Maryville and Alcoa cases for the purpose of revealing the identity of the local marauder. Gamble asked if the defense might be given more time to prepare to handle the letter as relevant, and the judge denied him more time. Gamble then insisted that the letter had to be rejected as it wasn’t a threat or a confession in the case at hand. The Judge merely repeated that the jury would receive instruction before hearing or seeing the letter.
When McCampbell was on the stand, he described his term as Sheriff, his acquaintance with Sheffey, and the delivery of the Emery letter. He described the letter as having been written in pencil and mailed from Knoxville to his P. O. box. He was then asked if he had shown the letter to anyone and, in spite of the objections of the defense, he admitted he had shown it to D. W. Poague and to Judge Gamble. This caused quite a stir, but Gamble clarified that he had not been attached to the case in any way when he saw the letter. Attorney General Peace commented that he had asked the question simply to reveal that the defense team clearly knew all about the letter and its contents when they had tried to stop its inclusion in court. Kramer asked that the question and answer about Gamble having seen the letter be stricken from the record, and it was.
George M. Clarke, handwriting expert from Chattanooga, took the stand in the afternoon. He was certified as an expert in the courts of Tennessee and Georgia and in Federal courts. Kramer objected to the use of handwriting expertise in court, citing Franklin v. Franklin and Powers v. McKenzie, the first two cases to set rules for handwritten evidence in Tennessee. The judge entered an exception but ordered the witness to continue. Clarke testified on his comparison of the Emery letter with samples from Sheffey’s workplace, samples from the Davis family, and a letter from Sheffey to his wife. He outlined his methods, which included photographing and enlarging certain characteristics of each sample for clear comparison of shapes and patterns. Later objections would be made that the jurors were almost all illiterate farmers, but even the untrained eye can see the resemblance between a set of shapes. Clarke then declared that all of the samples had been written by the same person. He also opined that the “questioned letter”, the Emery letter, showed signs of the writer using unnatural movements to try and disguise his natural handwriting.
The defense requested an early recess to examine the letter and Clarke’s photographs. When the session resumed on the next day, Gamble immediately went on the offensive, asking Clarke how much he would be paid for his testimony. The state objected and the court supported the objection, but the witness was content to answer. He would get $150 for his expert opinion, plus travel expenses and a per diem if his stay went beyond one day. After that, the session became a kind of writing lesson, with Smith for the prosecution and Gamble for the defense highlighting different aspects of certain letters on a blackboard for the jury. Apparently, this went on for hours and filled the entire day’s hearing. The judge closed the day by reminding the attorneys that he had a judicial deadline and he needed them to pick up the pace.